author: Mr. JUSTICE SIMKINS

text:
    Lyda Campbell et al., Plaintiffs-Appellants, v. Raymond Cowden et al., Defendants-Appellees.
    (No. 12279;
    Fourth District
    April 4, 1974.

      Bach & Laudeman, Ltd., of Bloomington, for appellants.
    William C. Wetzel, of Livingston, Barger, Brandt, Slater & Schroeder, and Albert H. Hoopes, both of Bloomington, for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal from a directed verdict in favor of defendants in an action initiated by plaintiffs to impose a constructive trust on the estate of Nellie Strayer and for an interpretation of the will of Walter S. Strayer, her husband. Plaintiffs contend (1) that the trial judge erred in not finding any evidence of a contract between Nellie and Walter Strayer to execute reciprocal wills and (2) the trial judge erred in interpreting the will of Walter Strayer as conveying a fee simple interest to Nellie Strayer instead of a life estate with a remainder to named individuals.

Walter S. Strayer died on October 2, 1956, and the will executed by him on June 10, 1952, and admitted to probate on November 9, 1956, reads in pertinent part:

“Second: After the payment of such funeral expenses and debts, I will, devise and bequeath all of my property, both real, personal, mixed, or of whatever description, or wherever situated to my beloved wife, Nellie Strayer, to be hers absolutely, and I hereby give her full and complete power and authority to sign and execute any and all deeds or papers, or anything necessary in connection with same.
Third: At the death of my beloved wife, if there are any funds remaining * * * and all remaining funds ° ° I will to be divided in nineteen (19) shares as fqllows * ° * I wish it specifically to be understood that this last Bequest of the residue at the death of my wife, shall not in any wise be construed as limiting her absolute fee ownership in the real estate, or any other, property of which I die seized, and that she shall not be limited in any extent in the sale, management, use, disposition, or complete possession and ownership of my property.”

Nellie Strayer died on February 22, 1969, and her estate was admitted to probate as an intestate estate on May 20, 1969. Plaintiffs contend in their complaint that on June 10, 1952, Walter S. Strayer and Nellie Strayer entered into a contract to provide for a common scheme of distribution and executed reciprocal wills whereby each left all his property to the other with provisions that the remainder or residue after the death of the last to die would go to 19 named individuals. Therefore, after Walter’s death the contract became irrevocably binding on Nellie. The will of Nellie Strayer allegedly executed on June 10, 1952, has been either lost or destroyed.

In examining the propriety of the trial judge’s granting of a directed verdict we must look at all the evidence in an aspect favorable to plaintiffs and see whether the evidence so overwhelmingly favors the moving party that no contrary judgment based on that evidence could ever stand. (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E. 2d 504.) Cases involving wills which are mutual or reciprocal and not joint generally require proof by clear and convincing evidence that they were the result of a binding contract to be irrevocable. Furthermore, the contract itself must be definite and certain in all its parts. (In re Estate of Edwards, 3 Ill.2d 116, 120 N.E .2d 10.) Mutual wills are then generally not of themselves evidence of a contract. (Jordan v. McGrew, 400 Ill. 275, 79 N.E.2d 622.) The court must then look closely at the evidence offered in support of such a contract and should weigh it in the most scrupulous manner. Monninger v. Koob, 405 Ill. 417, 91 N.E.2d 411.

At the hearing plaintiffs introduced (1) the testimony of a witness who identified the individuals named in the will of Walter S. Strayer and explained the relationship of these individuals to the testator, (2) a certified copy of the will of Walter S. Strayer, (3) a certified copy of the final report and inventory in the estate of Walter S. Strayer, and (4) the testimony of Stella L. Andris and attorney Arlo E. Bane that on June 10, 1952, Walter and Nellie Strayer executed wills with the same provisions. Nevertheless, plaintiffs failed to bring forward any evidence establishing the existence of a contract between Walter and Nellie Strayer for a mutual disposition of their property. At most, the evidence does tend to indicate that mutual or reciprocal wills were executed on June 10, 1952, by the testators, but the cases are clear that the mere existence of such mutual wills does not lead to a presumption of contract nor is it evidence that such a contract does, in fact, exist. Since the plaintiffs completely failed to establish the existence of a contract or the terms of such contract, it was clearly proper for the trial judge to direct a verdict in favor of defendants.

The trial judge also found that Nellie Strayer received a fee simple absolute interest in the property received by her under the will of Walter S. Strayer. This is clearly the correct interpretation of that will.

The intention of the testator must be ascertained from an examination of the will itself, and the construction adopted must uphold all the provisions and give effect to all the language used by the testator. Therefore, all repugnancies must be reconciled without adopting an unreasonable or absurd interpretation of the instrument. (Scott v. Crumbaugh, 383 Ill. 144, 48 N.E.2d 532.) The will of Walter Strayer conveyed to Nellie Strayer all his real and personal property “to be hers absolutely”. This is obviously evidence of an intent to divest himself of all future control of the property. This language is followed by obviously contradictory language implying a power of sale. This apparent inconsistency can be most easily reconciled by attributing it to poor draftsmanship for the testator seemingly intended to use strong language to insure that his wife received a fee interest. Furthermore, in the third paragraph there is what seems to be the conveyance of a life estate with a remainder to- the 19 named individuals. However, the testator concludes that paragraph by stating that the bequest of the residue “shall not in any wise be construed as limiting her absolute fee ownership in the real estate, or any other property of which I die seized, and that she shall not be limited in any extent in the sale, management, use, disposition or complete possession and ownership of my property." It would be hard to conceive of any stronger language than this by a testator in attempting to insure that his spouse receives the entire bundle of sticks, i.e., a fee simple absolute interest. The language leaving any remaining funds to the 19 named individuals we construe to be precatory language and simply an indication of the testator’s desires, particularly in view of the positive language granting a fee simple interest and the final admonition that the bequest of the residue “shall not in any wise be construed as limiting her absolute fee ownership * *

Therefore, the trial judge was correct in directing a verdict as to the constructive trust and in his interpretation of the will of Walter Strayer. Accordingly, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

TRAPP, P. J., and CRAVEN, J., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jesse Enyart, Defendant-Appellant.
    (No. 72-266;
    Fifth District
    April 3, 1974.
    CREBS, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Gordon Berry, Assistant Appellate Defender, of counsel), for appellant.
    Robert F. A. Stocke, State’s Attorney, of Louisville, for the People.
   PER CURIAM:

Appellant was indicted for murder in 1967 and trial by jury was commenced. After 4 days of trial, a plea of guilty was tendered and accepted, and he was sentenced to 30 to 60 years’ imprisonment.

The instant appeal is taken from the order of the circuit court denying post-conviction relief after an evidentiary hearing. Appellant’s sole contention on appeal is that Supreme Court Rule 651(c) requires reversal and remandment for further proceedings due to appointed counsel’s failure to include iii the record a written certificate stating that he examined the report of proceedings from the original trial.

We note that Supreme Court Rule 651(c) does not require a certificate of compliance; this rule requires that the record “* * * shall contain a showing, which may be made by the certificate of petitioner’s attorney, * * *.’ (Emphasis added.) Ill. Rev. Stat., ch. 110A, par. 651(c).

However, the People have now presented an affidavit by the attorney who was appointed as counsel in the post-conviction proceeding, which affidavit avers that he consulted with the petitioner and that he examined all the documents, instruments and records furnished him with reference to the case. Appellant concedes in his brief that the report of proceedings was received by counsel and entered into evidence.

Filing of such certificates of compliance during the pendency of the appeal is in accordance with a procedure suggested by the supreme cornet in People v. Harris, 50 Ill.2d 31, 276 N.E.2d 327, and followed in the appellate courts in People v. Riggs, 8 Ill.App.3d 1032, 291 N.E.2d 246, and People v. Slifer, 15 Ill.App.3d 136, 304 N.E.2d 153.

We find that there was compliance with Rule 651(c).

Judgment affirmed.

Mr. JUSTICE CRESS took no part in the consideration or decision of this case.


author: Mr. PRESIDING JUSTICE SMITH Mr. JUSTICE CRAVEN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fount Merrill, Defendant-Appellant.
    (No. 11707;
    Fourth District
    April 10, 1974.
    CRAVEN, J., dissenting.
    John F. McNichols, Deputy Defender, of Springfield (Robert Kennedy, Assistant Appellate Defender, of counsel), for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (John A. Beyer, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The circuit court of McLean County sentenced the defendant to 8 months in the Illinois State Penal Farm following a jury verdict finding the defendant guilty of aggravated battery. The defendant contends that the indictment is insufficient because it fails to allege an essential element of the crime of aggravated battery, that is, that it was “without legal justification.” Under the supreme court opinion in People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269, that issue is now neither tenable nor debatable. The indictment was valid.

The first trial of the defendant in this case resulted in a mistrial. After the People had rested and one witness for the defense had testified, a juror was observed talking with that defense witness in the hall after the court had recessed for the day. On the following morning, this matter was called to the court’s attention in chambers and after some discussion, the court asked the lawyers to excuse themselves and had the bailiff bring the juror into chambers where the court conducted an interrogation which was recorded on tape. Thereafter the court suggested that he had two alternatives, (1) to declare a mistrial, and (2) by stipulation to complete the case with 11 jurors. The State’s Attorney said he favored the first for this and other reasons and the defendant stated they would not complete the trial with 11 jurors. The court then stated: “Since neither of you are interested in doing that, then I guess the only alternative we have is to mistrial [sic] the matter”. Defendant objected to that procedure for the record and later specifically grounded that exception on the in camera interrogation of the juror on the grounds that the interrogation was conducted outside the presence of the defendant and his attorney, and further stated that he was thus deprived of observing the demeanor of the juror during the examination. The jury was discharged and then the tape was played back for the benefit of both lawyers. Thereafter the defense made a motion in the nature of a motion in bar based on double jeopardy and it was denied.

In People v. D'Argento, 106 Ill.App.2d 36, 245 N.E.2d 501, the trial judge was advised the juror had received an anonymous telephone call and was told “I want you to find these defendants guilty”. The judge talked to the juror in chambers and was advised by the juror that he had told no other juror of the call nor would he do so in the future and that the call would have no effect on his impartiality as a juror. The State’s Attorney moved that this juror be withdrawn and replaced with an alternate juror. The defendants moved for a mistrial on the ground that they had been deprived of constitutional rights to a public trial and to be present at all stages of the proceedings when the in camera examination of the juror was conducted by the judge. The State then made a motion to bring the juror into chambers so that all parties concerned could examine him concerning the incident. Defendants objected and chose to stand on their motion for a mistrial. The appellate court held by so doing they waived their right. The State also moved to withdraw a juror and replace him with an alternate—an offer which the defendants refused. D’Argento does not precisely fit our facts.

In the case we consider, the State called the judge’s attention to the witness-juror conversation and after a discussion between the judge and both attorneys, defendant’s counsel suggested that the judge call the juror into chambers and this he did after asking both counsel to withdraw. The record indicates that the juror was well acquainted with the witness but really only passed the time of the day with him and the case on trial was not mentioned. The judge asked her, “Now, are you able to state to me at this point unequivocally that your conversation with Mr. Slayback will not bear on the issues in this case in any way?” Answer: “No, it will not, but I would like to ask you just one thing, if I could be excused from this Jury?” The judge then stated, “No, you cannot because you have been sworn in as a juror”. The witness also said that it would result in a- hardship at home and stated “And too, after prayer and deep meditation, I can’t hardly conscientiously go on with it * * * [B]ut sometimes, you know, God speaks to you, did you know that? * * * And He sometimes speaks pretty clearly. And I really feel that, I don’t know, I will go on with this one case, if you want me to, but I am just * * The court then stated, “Well, do I understand what you are telling me now is that you feel that you have made up your mind in this case one way or another?” Answer: “Well, probably so”.

The trial court then sent the juror back to the jury room and then called in the lawyers and stated that he had but two alternatives. The State insisted upon a mistrial and tire defendant refused to accept the court’s suggestion that they stipulate for a continuance of the trial by an 11-man jury. The State then indicated that there were enough things in the record in the way of conduct, questions, etc., of defense counsel “that I feel the jury at this point might be prejudiced sufficiently so that I am asking for a mistrial.” Defense counsel then stated, “I * * * would not consent to go with a Jury of 11. * * * I am inclined to think Mrs. Powell is a juror that I would want on there, I really don’t know * * *. I would just like to go on, Judge.” The court then said, “Well, the difficulty with going on is this, Mr. Light [defense counsel], in a civil case the Court can go on, and if the Court later looks at it in reflection and determines that there was prejudice against the Plaintiff, then you can grant a new trial. In a criminal case, if there is prejudice against the State and the verdict is not guilty, there is no way you can go, see?”

It. is at once apparent that direct communication between the .trial judge and the jury or a juror except in open court in the presence of the attorneys in either a civil or criminal case no matter how innocently done lays a seed bed for error. It is apparent from this record that the defendant made the original suggestion that the court interrogate the juror. The court asked counsel to withdraw and taped the conversation. The procedure thus followed was objected to by neither the State nor the defendant. Under the circumstances thus shown the sole issue is to apply the proper test in determining whether or not this defendant in the second trial was placed in double jeopardy. If he was, the trial court erred in denying the defendant’s motion to bar a second prosecution.

This case is readily distinguishable from United States v. Jorn, 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547, where a divided court held that the defendant had been placed in double jeopardy contrary to the fifth amendment to the United States Constitution when the trial court acted precipitously in determining that the government’s witnesses had not been wholly advised of the constitutional rights against self-incrimination and a plurality of the court concluded that under those circumstances the trial judge had failed to exercise a sound discretion in determining whether or not there was a manifest necessity for the sua sponte declaration of the mistrial. There, as we view it, the sole responsibility for the mistrial rested with the trial judge. Three members of the Supreme Court dissented and set forth many circumstances where a trial judge may discharge a jury and order a new trial without triggering any double-jeopardy problem.

In an opinion recently handed down by the United States Supreme Court on February 27, 1973, Illinois v. Somerville, 410 U.S. 458, 35 L.Ed. 2d 425, 93 S.Ct. 1066, the court appears to erode the doctrine pronounced in Jorn and appears to return to the basic concept of double jeopardy stated in United States v. Perez, 22 U.S. (9 Wheat.) 579 (1824), in the context of a declaration of a mistrial over a defendant’s objection. Somerville is a 5-4 decision. The Supreme Court would appear to return to the position that a rigid formula is inconsistent with the guiding principle of the Perez decision. It cites with approval Gori v. United States, 367 U.S. 364, 6 L.Ed.2d 901, 81 S.Ct. 1523, wherein it is stated:

"Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment.” (367 U.S. at 368.)

Discovery by the judge during the trial that “one or more members of the jury might be biased against the government or the defendant” has been upheld to warrant discharge of the jury and direction of a new trial. (Wade v. Hunter, 336 U.S. 684, 93 L.Ed 974, 69 S.Ct. 834.) And so it is here. In the case at bar the court inquired of the juror whether or not she felt “that you have made up your mind in this case one way or another”. Answer: “Well, probably so”. Patently this does not affirmatively indicate one way or another nor a profound conviction one way or another. It is apparent that the State’s Attorney thought this juror was adverse. It is equally apparent that defense counsel thought this juror was possibly friendly. Within the meaning of Wade the trial court apparently felt that a new trial would best serve the ends of justice. We cannot say on this record that after ascertaining the viewpoint of the juror the trial judge was motivated for any reason other than to ensure a fair trial to both sides. In Wade, 336 U.S. at 689, the court stated:

“* * * And there have been instances where a trial judge has discovered facts during a trial which indicated that one or more members of the jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial. What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”

The events in this trial which unfortunately brought about the mistrial were participated in by the prosecution, the defendant and the judge. Defendant’s objection to the mistrial at the time was only “for the record”. To allow a later plea of double jeopardy to a second trial to stand under such circumstances is to use the double jeopardy provision of the United States Constitution not as a shield to protect the defendant, but to allow the defendant to profit by his own suggestions to the court and by his plea after ascertaining that the particular juror was as he. believed, favorable to him and not the unbiased juror that the law contemplates. We do not hold that the defendant consented to the mistrial. We do say he cooperated in bringing it about and thus he should be subordinated to the public’s interest in fair trials designed to end in just judgments. This was the result here obtained and the judgment of the trial court should be and it is hereby affirmed.

Error is assigned on refusal to give certain tendered defense instructions as to the defendant’s diabetic condition. In the form presented, we do not regard such refusal as reversible error.

Affirmed.

TRAPP, J., concurs.

Mr. JUSTICE CRAVEN,

dissenting:

In this case, after the prosecution had rested and after the defense had called and finished with the first witness, the court recessed for the day. Upon the following day, the State’s Attorney brought to the court’s attention that on the day before, after the first defense witness testified, one of the jurors had spoken with the. witness in the corridor. Following a conference between the court and counsel, the court determined to question the juror privately without the presence of counsel. During that conference, the juror related that the conference in the corridor with the witness was merely an exchange of pleasantries and she indicated a long standing acquaintance with the witness.

After the exploration as to the conversation between the juror and the witness, tibe juror then initiated a conversation as to whether she could be excused from the jury. She discussed an illness of her husband and the fact that she had a handicapped daughter at home. She also mentioned that she had read an article concerning the case. Upon inquiry of the court as to whether she had her mind made up on the case, she answered, “Well, probably so."

Thereafter, contrary to the wish of defense counsel, and in accordance with the indicated preference of the State’s Attorney, the trial judge declared a mistrial and discharged the jury. It is clear from the record that the mistrial was declared not because of the conversation between the juror and the witness, but because of ancillary matters discovered during the course of the inquiry as to that conversation. In substance, there was a second voir dire examination.

This case in my opinion is governed by the rules announced in United States v. Jorn (1971), 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547. In the Jorn case, the court cited and quoted from United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, and concluded that a jury should be discharged from giving any verdict only upon a showing of manifest necessity and as required by the ends of justice. The authority of the trial judge to act ought to be used with tibe greatest caution only under urgent circumstances and for very plain and obvious causes.

I am not persuaded that the case of Illinois v. Somerville, cited in the majority opinion, so “erodes” the holding in Jorn so as to permit of affirmance here.

The concluding paragraph in Somerville reads as follows:

“The determination by the trial court to abort a criminal proceeding where jeopardy has attached is not one to be lightly undertaken, since the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one. (United States v. Jorn, supra.) Nor will the lack of demonstrable additional prejudice preclude the defendant’s invocation of the double jeopardy bar in tibe absence of some important countervailing interest of proper judicial administration. Ibid. But where the declaration of a mistrial implements a reasonable state policy and aborts a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties, the defendant’s interest in proceeding to verdict is outweighed by the competing and equally legitimate demand for public justice. Wade v. Hunter, supra.” 410 U.S. at 471.

This record does not suggest the existence of any factor that would have permitted a verdict by the jury as originally impaneled to be upset at will by either of the parties. In the absence of such factor, the defendant’s interest in proceeding to verdict is not outweighed by the competing and equally legitimate demand for public justice.


author: Mr. JUSTICE TRAPP Mr. JUSTICE CRAVEN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard C. Bolton, Jr., Defendant-Appellant.
    (No. 11725;
    Fourth District
    April 10, 1974.
    CRAVEN,. J., dissenting.

      John F. McNichols, Deputy Defender, of Springfield, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert James Steigmann, Assistant State’s Attorney, and Peter H. Strow and Charles Richards, Jr., Senior Law Students, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of burglary upon a jury verdict. He appeals.

Defendant, aged 19 years, and his brother-in-law, Hilliard, aged 16 years, were discovered in the early morning of October 2, 1970, upon the lot of Christman Auto Sales. Several hours were spent investigating the circumstances during which time the defendant and Hilliard were arrested. There is no disagreement that defendant consented to a search of his car which disclosed various tools identified as the property of one Tschann doing business as 101 Auto Ranch. The indictment charged that the burglary of the Ranch occurred on September 30. Tschann testified relating the burglary to the fact that several windows were found broken out on that date, although at such time nothing was believed to be missing.

Hilliard testified for the prosecution. He showed some uncertainty in recalling dates, but testified that he and defendant shot out the windows on September 30, and that a day or two before he and defendant entered the building on the Ranch with a key which defendant had obtained. He testified that at that time the tools were taken.

Defendant testified that he had been employed by Tschann but that such employment was terminated some 2 weeks prior, that on the last day of his employment he used the tools to work on his car and that when he finished the building was locked and he placed the tools in his car. He stated that he had a dispute with Tschann as to the amount of his last day’s pay and that he decided to keep the tools until the dispute was settled. He denied taking or having a key to the Ranch and he denied the burglary, although he admitted shooting out the windows because he was angry.

Upon questions by his counsel, defendant explained that he and Hilliard were required to move from their lodgings and that they had driven to the Christman premises to sleep in his car, that he could not sleep and went for a walk and upon returning the police were present and he was ultimately arrested.

Hilliard testified in rebuttal that a day or two before he and defendant were looking at a Pontiac on the Christman lot, that defendant had found a key to the car and that on the evening prior to the arrest they had taken the car to drive around town and were returning it when discovered by the police.

Here, defendant urges as error that testimony as to other criminal acts was received in evidence; that the court erred in giving the prosecution’s instruction in the language of IPI Criminal No. 13.21, concerning the exclusive possession of recently stolen property; that the trial court should have included sua sponte an instruction that the evidence of other criminal acts was limited to defendant’s credibility; that the court erred in refusing to give defendant’s instruction on circumstantial evidence; that defendant was not proven guilty beyond a reasonable doubt, and that the court unduly restricted his impeaching cross-examination of the prosecution witness, Hilliard.

Defendant’s contention concerning the prejudicial evidence of other crimes is presented in two aspects. The first concerns the testimony as to the events on October 2 leading to the arrest. No objection was made as to such testimony and the issue was not preserved in his post-trial motion. The prosecution urges that it was necessary to prove the circumstances of a lawful arrest and seizure of the tools, which, in substance, constituted the discovery of the burglary charged. This proposition is supported by People v. Johnson, 34 Ill.2d 202, 215 N.E.2d 204; People v. Tucker, 118 Ill.App.2d 136, 255 N.E.2d 31, and People v. Sessions, 95 Ill.App.2d 17, 238 N.E.2d 94.

In Johnson, defendant was tried for theft from one Potts. The events leading to defendant’s arrest included testimony concerning a theft from one Laurie. It was held that there was no error in admitting such testimony as a continuing narrative of the theft from Potts and the arrest of defendant. In Tucker, and in Sessions, it was held proper to admit testimony concerning the events which led to the arrest and identification of defendant with the offense charged. See also People v. Guyton, 114 Ill.App.2d 394, 252 N.E.2d 665.

Defendant made objection to the rebuttal testimony of Hilliard directed to the testimony of defendant about going to Christman’s lot to sleep and to returning from a walk to find the police present at his car as evidence of another offense. This issue was preserved in his post-trial motion. The prosecution urges that the issue is controlled by People v. Daugherty, 43 Ill.2d 251, 253 N.E.2d 389, and People v. April, 97 Ill.App.2d 1, 239 N.E.2d 285. In Daugherty, defendant was accused of indecent liberties with a small boy. Defendant testified denying the charge and told of his friendly association and paternal concern with two younger boys in the family. In rebuttal, the latter testified concerning defendants conduct with them on other occasions. It was urged that such testimony was prejudicial in suggesting other criminal offenses. The opinion held that it was proper to admit the testimony in rebuttal to the matters asserted in defendant’s direct examination.

That opinion cited People v. Hanley, 317 Ill. 39, 147 N.E. 400, wherein defendant testified that he was not with a codefendant on the date at issue, and that he did not own a gun. It was held that rebuttal was properly admissible in the testimony of a witness that he saw defendant and the codefendant on the date concerned and that defendant had a gun. See also People v. April, 97 Ill.App.2d 1, 239 N.E.2d 285; People v. Jones, 125 Ill.App.2d 168, 260 N.E.2d 58, and People v. Appleton, 1 Ill. App.3d 9, 272 N.E.2d 397.

In People v. LaBatt, 108 Ill.App.2d 18, 246 N.E.2d 845, there was a failure of the Miranda warnings so that defendant’s statements were held inadmissible in direct evidence. Defendant testified that he had no gun. The issue was whether it was error to admit the testimony of a police officer as to what defendant said about a gun. The court held that where he testified, defendant placed the truthfulness of his version in controversy and that the State was entitled to rebut such testimony. Cert. denied, 401 U.S. 963, 28 L.Ed.2d 248, 91 S.Ct. 980, sub nomine La Batt v. Illinois.

Defendant relies upon People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805. In that opinion the court noted that the prosecution sought to rebut testimony of defendant resulting from the “clearly improper” cross-examination, and that under such circumstances evidence suggesting other offenses was reversible error. To the same effect, see People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766. Here, as in Daugherty, rebuttal was directed to defendant’s testimony in chief.

Defendant tendered no instruction designed to limit such rebuttal testimony to the consideration of defendant’s credibility, but here it is argued that the court should have sua sponte prepared such an instruction. The evidence being admissible under the authorities cited, we find no reversible error.

Defendant argues that the court erred in giving the instruction, (IPI Criminal, No. 13.21) in the language:

“If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary.”

It is said in behalf of defendant that such possession does not support an inference of an unauthorized entry into the premises, and that since such entry is an element of the offense of the burglary, the instruction was in error. We find that sometime prior to the adoption of the present Pattern Instructions, the supreme court approved an instruction, “The exclusive possession, shortly after, the commission of a larceny, robbery or burglary, of stolen property * * (People v. Leving, 371 Ill. 448, 21 N.E.2d 391.) In People v. Curtis, 7 Ill.App.3d 520, 288 N.E.2d 35, it was contended that such instruction was not proper in authorizing an inference of the elements of robbery. Here, as in Curtis, there was other substantial evidence of the offense charged and the inference is not used to prove the elements of the offense but to show the identity of the person involved. Defendant urges that People v. Urban, 381 Ill. 64, 44 N.E.2d 885, controls. In that case, however, the essential issue was whether the evidence in fact showed exclusive possession in defendant. Here, the possession was admitted by defendant and it was properly a jury question as to whether there was a reasonable explanation of such possession.

The court gave the instruction defining circumstantial evidence (IPI Criminal, No. 3.02), omitting the second paragraph:

“You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.”

Defendant argues that giving the instruction in such form was error, and that it was error to refuse defendant’s tendered instruction which included the quoted paragraph. The Committee Note directs that the second paragraph should be included “only when the proof of guilt is entirely circumstantial”. (Emphasis supplied.) Here, there was direct testimony concerning the burglary by Hilliard and the ruling was correct. People v. Hayes, 11 Ill.App.3d 359, 296 N.E.2d 649.

Defendant contends that the court unduly restricted his cross-examination of Hilliard contending to show his bias or credibility. The record shows that Hilliard and defendant were brothers-in-law and were staying together at the time of the offense. The trial court permitted cross-examination to show the differences between the two, but sustained an objection to cross-examination directed to exploring the differences between the respective mothers of Hilliard and the defendant concerning defendant’s marital problems. The court stated that defendant might cross-examine as to differences between defendant and Hilliard, but not as to other members of the family, In the event, no further inquiry was in fact made.

Defendant argues the failure of proof beyond a reasonable doubt. There was some conflict in the evidence which a jury hearing the testimony and observing the witnesses may best resolve, where there are issues of credibility. Nothing in the record suggests reversible error upon this issue.

The judgment is affirmed.

Affirmed.

SMITH, P. J., concurs.

Mr. JUSTICE CRAVEN,

dissenting:

The defendant was charged with the burglary of the 101 Auto Ranch in Urbana, Illinois. The offense was alleged to have taken place on September 30, 1970. Hilliard, a confessed accomplice, testified for the prosecution and was recalled for rebuttal testimony. Prior to that time a police officer had indicated the circumstances relating to the defendant’s arrest at Ted Christman’s Automobile Sales lot on October 2,1970. Objection was made to the testimony of Hilliard that his testimony would bring out other crimes which would be prejudicial. The objection was overruled, and the witness Hilliard testified and that testimony as abstracted is as follows:

“Q. Would you tell the jury and the Court why you, on October 2nd, along with Mr. Bolton went to Ted Christman’s auto sales at night?
A. Well, we uh, had the keys to a CTO.
Q. Why were you—who had the keys?
A. Rick did.
Q. Who is he?
A. Bolton
Q. What was his intentions to do with those keys?
A. Take the car and go driving around.
Q. What car was that?
A. Blue CTO
Q. Where was it?
A. Sitting on Ted Christman’s, uh, used car lot.
Q. Do you know when and where he got the keys to that car?
A. When we went over there and looked at cars.
Q. When was that?
A. Mmmm—a couple of days before we went to get—before we stole the keys.
Several days before, I saw Rick Bolton take these keys from over the sun visor of the CTO. We took the car and drove it around campus and were putting it back when the police arrived. My father works at Ted Christman’s, but we did not have authority from him, Ted Christman, or anyone else to take the car. Taking the car was Rick Bolton’s idea.”

The majority opinion concludes that there was no error in the admission of that testimony upon authority of People v. Daugherty and People v. Guyton. As I read this record, Hilliard's testimony was used for impeachment on collateral issues and injected into the case criminal activity of the defendant Bolton for which he was not on trial and which was not relevant nor necessary to establish identity, intent, knowledge, motive, a common scheme or design, or a fact material to the issue on trial. People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805.


author:
Mr. PRESIDING JUSTICE TRAPP
      Mr. JUSTICE CRAVEN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Thomas Mahoney, Defendant-Appellant.
    (No. 11881;
    Fourth District
    April 10, 1974.

      CRAVEN, J., dissenting.
    John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Appellate Defender, of counsel), for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Patrick M. Walsh, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant pleaded guilty to the offense of indecent liberties with a child in violation of Ill. Rev. Stat. 1969, ch. 38, par. 11—4. Sentence of 4 to 8 years was imposed.

Upon appeal it is urged that the conviction must be reversed because the indictment did not allege the name of the injured party or, in the alternative, that “the order denying probation be reversed and he be granted probation”. The challenged allegation of the indictment is in the language:

“[Kjnowingly and lewdly fondled and touched the vaginal area of a female child under the age of 16 years, to-wit: one year of age, whose name will be revealed at a trial of this cause, he doing said act with the intent to arouse and satisfy his sexual desire.”

The guilty plea was negotiated by defendant, his counsel and the State’s Attorney and was tendered to the court upon the case being called for trial. There was no motion to quash the indictment. The record shows that prior to such tender of plea, counsel had moved for and obtained the items of discovery provided in Supreme Court Rule 412. Upon counsel’s motion, psychiatric examination was ordered to ascertain his competence to stand trial. The psychiatrist’s examination found defendant to be without delusions, correctly oriented with no history of mental illness and of average intelligence. The defendant waived jury trial on the issue and the court entered an order finding defendant competent to stand trial.

In People v. Walker, 7 Ill.2d 158, 130 N.E.2d 182, it was said:

“Where an indictment charges an offense either against persons or property, the name of the person or property injured, if known, must be stated, and the allegation must be proved as alleged. * * * The purpose served by alleging the name of the person or property injured is to enable the accused to plead either a former acquittal or conviction under the indictment in the event of a second prosecution for the same offense. « * * Since the requirement is founded upon the protection of the right of the accused against double jeopardy, it is a substantial requirement designed to safeguard a constitutional right and not a mere technical rule.” 7 Ill.2d at 161.

Succeeding opinions have stated that the essential function of such allegation is to permit the defendant to prepare his defense and to prevent surprise at trial, and to establish such a record as would permit him to plead a conviction or an acquittal in bar of a subsequent prosecution. (People v. Nelson, 17 Ill.3d 509, 162 N.E.2d 390; People v. Johnson, 20 Ill.2d 336, 169 N.E.2d 776; People v. Harden, 42 Ill.2d 301, 247 N.E. 2d 404, and People v. Jones, 53 Ill.2d 460, 292 N.E.2d 361.) In each of these cases the court analyzed the allegation and the facts of record in terms of the function served by the Rule, and the court determined the issues in the light of whether defendant was, in fact, unable to prepare his defense or was unable to plead in bar of subsequent prosecution.

Defendant urges that the case is controlled by the opinion in People ex rel. Ledford v. Brantley, 46 Ill.2d 419, 263 N.E.2d 27. There defendant entered a plea of guilty to burglary. The language of the indictment was ambiguous in terms of ownership of the dwelling. Such plea was entered in 1969 prior to the effective date of Supreme Court Rule 412 (October 1, 1971), providing extensive discovery, and the effective date of Supreme Court Rule 402, requiring that the record show a factual basis for the plea (September 1970).

Without reference to an indictment’s function of supplying information for a preparation for trial or establishing facts of record to support a plea in bar which are discussed in Walker and Harden, the court held the indictment void upon the authority of People v. Picard, 284 Ill. 588, 120 N.E. 546. There was no reference to the function of an indictment in the context of procedural access to facts which permitted defendant to prepare his defense, or a record which would support a plea in bar as discussed in Walker.

Since Ledford some appellate opinions have followed strictly the requirements that the person or property affected by the offense be identified in the indictment. (People v. Wolf, 7 Ill.App.3d 739, 288 N.E.2d 688; People v. Allsop, 6 Ill.App.3d 688, 286 N.E.2d 387, People v. Moyer, 1 Ill.App.3d 245, 273 N.E.2d 210.) Other appellate opinions have reviewed the matters of record to ascertain whether or not the accused was, in fact, misled in any way in the preparation of his defense. People v. Springs, 2 Ill.App.3d 817, 277 N.E.2d 764; People v. Viar, 131 Ill.App. 2d 983, 268 N.E.2d 872; People v. Cicchetti, 2 Ill.App.3d 535, 275 N.E.2d 661; People v. Kaprelian, 6 Ill.App.3d 1066, 286 N.E.2d 613; People v. Palmer, 4 Ill.App.3d 309, 280 N.E.2d 754.

In People v. Jones, 53 Ill.2d 460, 292 N.E.2d 361, the indictment named Charles Mundy as the victim of armed robbery. Upon the date of trial, the court permitted amendment of the indictment to show the name of the victim as Delbert Mundy, a different individual. The court affirmed the trial court’s aUowance of the amendment as a formal defect within the ambit of Ill. Rev. Stat. 1969, ch. 38, par. 111—5. The court said:

“The liberation of criminal pleading also reflects a lessening in importance of the indictment’s secondary functions. The indictment as a means of informing defendants of particulars concerning the case is now far overshadowed by the array of discovery procedures available to the defense. Similarly, the time when an indictment defined the limits of jeopardy has passed and a prior prosecution on the same facts may be proved by resort to the record. (See, e.g., People v. Jankowski (1945), 391 Ill. 298, 302, 63 N.E.2d 362.) The primary safeguard of indictment by grand jury, which remains secured to criminal defendants, is to protect individuals from the caprice of the public prosecutor.” (53 Ill.2d 464.)

The court continued to say:

“We believe that this constitutionally required protection has been afforded this defendant and that the particular facts in this case demonstrate the amendment of the victim’s first name to be a mere formality. Where, as here, no hint of surprise or prejudice to the defendant is shown, aUowance of such an amendment is not error.” (53 Ill.2d at 465.)

Upon such considerations the court said:

“A holding that the identity of an armed-robbery victim is an essential allegation of an indictment charging that offense is, however, not dispositive of the issue of whether the misstatement of identity is a formal or substantial defect.” 53 Ill.2d at 463.

The omission of the name of the infant victim in the indictment does not suggest a withholding of her identity but seems to be rather a form of the practice of withholding the name of any minor associated with an offense. (Ill. Rev. Stat. 1969, ch. 37, par. 702—8(3).) The use of such procedure here does not bring any assertion that defendant was misled in preparing his defense, that he was taken by surprise or that he has, in fact, suffered any prejudice. (People v. Nelson, 17 Ill.2d 509, 162 N.E.2d 390; People v. Jones, 53 Ill.2d 460, 292 N.E.2d 361.) There were no such claims either in the trial court or upon appeal.

As a factual basis for the plea, the State’s Attorney stated in the record matters to which witnesses would testify, including the fact that the victim was defendant’s stepdaughter, that defendant and his wife took the child to the hospital where examination disclosed substantial injury and made reference to the medical findings. He further stated that defendant made admissions to police officers and welfare workers that he had performed the acts. The State’s Attorney also noted that defendant claimed an alibi defense. Defendant’s counsel did not controvert the statement of facts but supplemented it with reference to the domestic problems of defendant and his wife. Thereupon, the court questioned defendant who said that he had not been coerced by counsel’s refusal of services if defendant went to trial, and that he, the defendant, had no complaints concerning counsel’s assistance. Defendant answered affirmatively the court’s question whether he was pleading guilty because he was guilty in fact.

Within the terms of the secondary functions of an indictment, it cannot be said that defendant has such want of knowledge of the identity of the victim that there was prejudice in preparation of his defense. The record of the factual basis of the plea furnishes ample record of this prosecution for purposes of supporting a plea in bar of a subsequent prosecution. (People v. Jankowski, 391 Ill. 298, 63 N.E.2d 362; People v. White, 130 Ill.App.2d 775, 267 N.E.2d 129.) Defendant, in fact, has had the constitutionally required protection described in People v. Walker, 7 Ill.2d 158, 130 N.E.2d 182, and the omission of the infant’s name is properly deemed a formal defect, rather than a substantial defect. See People v. Stanley, 4 Ill.App.3d 23, 280 N.E.2d 14.

Defendant argues that the court acted in an arbitrary manner in denying defendant’s petition for probation, and that this corut should reverse such denial and grant probation.

In People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300, the appellate court vacated the sentence imposed and directed the trial court to grant probation. The supreme court concluded that Supreme Court Rule 615 was not intended to grant authority to a court of review to reduce a penitentiary sentence to probation, but that the authority conferred by the rule was to determine whether the trial court exercised discretion or acted arbitrarily in denying probation.

The investigating probation officer recommended denial of probation. The record of the probation hearing discloses that defendant’s counsel did not controvert any of the matters in the report except in one minor aspect. The report included the statement of witnesses concerning prior physical abuse of the child by the defendant.

Defendant called certain witnesses at the probation hearing. One had had no more than a passing acquaintance with defendant until about a week before the offense. Two witnesses had not seen defendant since his marriage when the child was brought into his home. Certain witnesses testified to a brief that defendant could abide the rules of probation, but the record does not show that they were informed as to what the rules were. The trial court observed defendant throughout several court appearances. In denying probation, it was noted that the assault was upon a particularly helpless victim, and the trial court concluded that probation would not protect society and that rehabilitation required more than that which could be provided through probation. Upon the record, we cannot conclude that the court failed to exercise judicial discretion, or that he acted arbitrarily.

Counsel have submitted supplemental briefs upon the question of the necessity that the court appoint two psychiatrists to examine defendant prior to proceeding as is provided in Ill. Rev. Stat. 1969, ch. 23, pars. 2401 and 2402.

These provisions were adopted in 1957 and added as paragraphs 825f and 825g, to the statute regarding sexually dangerous persons. (Ill. Rev. Stat. 1957, ch. 38, pars. 820.01—825g.) Upon the adoption of the Criminal Code in 1963, these paragraphs were not placed in such Code. The Committee Comments note that such paragraphs were treated as ancillary to “offenses against children” and so were not placed in the Criminal Code. S.H.A. (1970), ch. 38, art. 105, p. 123, Committee Comment.

In the present statutory context there is no stated purpose in psychiatric examination. Presumably, it would show the presence or absence of mental disorder. This is in contrast to the language of the Sexually Dangerous Persons Act, which directs psychiatric examination:

“[T]o ascertain whether such person is sexually dangerous # # # ”

In the proceedings under the Sexually Dangerous Persons Act, there is provision for jury trial upon the issues arising under the petition (par. 105—5), and for custodial guardianship with the Director of Corrections if defendant is found to be sexually dangerous (par. 105—8). In contrast, there is no provision in chapter 23, paragraphs 2401 and 2402, which provide for a hearing upon the findings of the psychiatric examination or for disposition after the psychiatric report is filed.

The courts have examined such statutes as enacted prior to the present provisions of the Criminal Code and have determined that such were enacted for the purpose of preventing persons suffering from a mental disorder, although neither insane or feebleminded, from being punished for crimes they commit during a period of mental disability. (People v. Sims, 382 Ill. 472, 47 N.E.2d 703; People v. Kennedy, 43 Ill.2d 200, 251 N.E.2d 209.) The sole purpose of the statute was to ascertain a mental state. (People v. Redlich, 402 Ill. 270, 83 N.E.2d 736.) The purpose was to ascertain whether the accused’s mental state was such as to require that he plead to an indictment and be placed on trial. People v. Capoldi, 10 Ill.2d 261, 139 N.E.2d 776; People v. McDonald, 44 Ill.App.2d 348, 194 N.E.2d 541.

Here, there is no contention that defendant was not competent to stand trial, to enter a plea or to commit the offense. (See People v. Hedenberg, 9 Ill.App.3d 597, 291 N.E.2d 848.) The examination and hearing pursuant to Ill. Rev. Stat. 1969, ch. 38, pars. 104.1 and 104.2, bring uncontroverted psychiatric evidence that defendant was competent to plead to the indictment under the tests of People v. Sims, 382 Ill. 472, 47 N.E.2d 703; People v. Redlich, 402 Ill. 270, 83 N.E.2d 736, and People v. Capoldi, 10 Ill.2d. 261, 139 N.E.2d 776. Defendant’s citation of People v. Allen, 7 Ill.App.3d 249, 287 N.E.2d 171, brings little persuasion since in that case the uhcontradicted psychiatric evidence was that defendant was incompetent to stand trial.

The Criminal Code, of 1961 defined “responsibility” in broader terms than the former definition of insanity. Ill. Rev. Stat. 1969, ch. 38, par. 6—2, provides:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

By reason of such definition there is now a means of presenting the issue of whether a defendant who was neither insane nor feeble-minded under the former standards of insanity was suffering from a mental disorder should be punished for crimes committed during a period of mental instability. Once there is some evidence which raises a doubt as to defendant’s sanity and responsibility trader the statute at the time of the alleged prosecution must prove his responsibility beyond a reasonable doubt. (People v. Hawkins, 53 Ill.2d 181, 290 N.E.2d 231; People v. Smothers, 55 Ill.2d 172, 302 N.E.2d 326.

The issue of defendant’s responsibility as insanity as now defined was not raised in the trial court or initially presented in the briefs on appeal. The record does not suggest any prior mental illness or conduct which indicates that defendant was one who should not be required to stand trial upon the charges. Thus, the record does not reflect a defect affecting substantial rights which should be noticed, although not brought to the attention of the trial court under the provisions of Supreme Court Rule 615(a).

We find that this record contains many pro se documents which would be properly treated as seeking post-conviction relief and for appointment of counsel. A docket entry states that such “Pleadings (are) to be considered with appeal now recently filed and pending”. A subsequent docket entry notes, “Whereas cause on appeal with Illinois Defender Project counsel, these pro se filings referred to him for consideration”.

Supreme Court Rule 615(a) provides for an appeal of a final judgment of the circuit court in any post-conviction hearing. So far as the record discloses, there has been no compliance with any of the provisions with article 122 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 122—1 through 122—7), providing for appointment of counsel and proceeding to disposition upon the petition. Such petition continues to pend in the circuit court. The trial court had no authority under any statute or rule to order the consolidation of the undisposed post-conviction petition, or to direct that it be heard with the pending appeal.

The judgment of conviction which is appealed is affirmed.

Affirmed.

SIMKINS, J., concurs.

Mr. JUSTICE CRAVEN,

dissenting:

It is expressly required by the statutory provisions cited in the majority opinion that one charged with a sexual crime against a child under the age of 13 years shall, by action of the judge of the trial court, be required to undergo a psychiatric examination. The examination shall be by two psychiatrists appointed by the court for that purpose and a report in writing of the result of their examination is to be delivered to the person charged. The majority opinion concludes that noncompliance with that statutory provision, while error, is harmless. Tire majority then proceeds to equate the examination there required with the issue of competency. Its conclusion that the failure to have the examination is harmless error is based upon a determination that the defendant was otherwise determined to be competent. In this case, and in People v. Newbern 16 Ill.App.3d 1037, 307 N.E.2d 439, the court seems to conclude that the legislative requirement for psychiatric examination is misplaced statutorily or without legislative focus. I do not agree.

First, it seems to me that the examination is required under the holding in People v. Flowers, 51 Ill.2d 25, 281 N.E.2d 299; under our holding in People v. Allen, 7 Ill.App.3d 249, 287 N.E.2d 171; and inferentially in the opinion in People v. Hedenberg, 9 Ill.App.3d 597, 291 N.E.2d 848. The purpose is not to ascertain the defendant’s competency but rather to ascertain and to give the prosecuting attorney behavioral science information so as to enable the prosecutor to make an informed judgment as to whether he should proceed by criminal prosecution for the offense or civil commitment under the provisions of the Sexually Dangerous Persons Act. A defendant can be incompetent to stand trial and still subject to classification as a sexually dangerous person, and conversely, a defendant can be competent to stand trial and yet still be subject to commitment civilly for treatment as a sexually dangerous person in lieu of criminal proceedings.

       “2401. In all cases in which a person of the age of 17 years and upwards is charged with any violation of a statute or ordinance, the basis of the charge being a sexual crime against a child under the age of 13 years, the trial of such charge shall be in a circuit court.
      2402. The judge of the court in which an indictment or information under Section 1 of the Act1 is tried shall, before trial, require a psychiatric examination of the person charged. The examination shall be by two psychiatrists appointed by the court, who shall make a personal examination of the person charged and shall file with the court a report in writing of the result of their examination, a copy of which shall be delivered to the person charged.”


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Leonard, Defendant-Appellant.
    (No. 11913;
    Fourth District
    April 10, 1974.

      Michael J. Costello, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (Hugh H. Rowden, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The defendant appeals from his conviction of theft under section 16—1(b) of the Criminal Code in that by deception he obtained control over property of value in excess of $150. (Ill. Rev. Stat. 1971, ch. 38, ¶[ 16—1(b).) The defendant was found guilty by a jury trial and following a hearing in aggravation and mitigation was sentenced to two to ten years in the penitentiary.

The initial issue is the defendant’s contention that his conviction must be set aside because the State failed to try him within 120 days as required by section 103—5(a) of the Code of Criminal Procedure. (Ill. Rev. Stat. 1971, ch. 38, ¶ 103—5(a).) The defendant was indicted on December 22, 1970, and charged with having committed this offense on December 2, 1970. Trial was set for March 22, 1971, at which time the defendant failed to appear, resulting in a forfeiture of bond and the issuance of an arrest warrant. The defendant was arrested on October 28, 1971, and held in custody continuously until trial on February 28, 1972, a period in excess of 120 days. The defendant first appeared before the court on November 1, 1971, and the trial was then reset for December 6, 1971. On November 30, 1971, the defendant appeared in open court stating that he had no attorney and the court appointed counsel. On December 6, 1971, the appointed counsel asked for a continuance on the grounds that he had just been appointed. The docket entry indicates that the defendant agreed and the cause was continued to January 10, 1972. On January 3, 1972, defense counsel’s motion for a continuance to February 28, 1972 was granted.

The controlling question in determining whether a defendant is entitled to a discharge under the 120-day statute is whether the delay of the trial beyond 120 days was “occasioned by the defendant”, and, if so, he is not entitled to discharge under the statute. (People v. Nunnery, 54 Ill.2d 372, 297 N.E.2d 129.) The supreme court noted that the criteria in each case is whether the defendant’s acts in fact caused or contributed to the delay. Where the defendant specifically requests or agrees to a continuance, the statutory 120-day period is tolled, and the period begins to run anew. (People v. Dawson, 3 Ill.App.3d 668, 279 N.E.2d 483.) The same result occurs if the defendant causes a delay in the proceedings, even if he did not expressly seek a continuance. (People v. Caruth, 4 Ill. App.3d 527, 281 N.E.2d 349.) The defendant contends that he cannot be held responsible for the delay from November 1 to November 30, 1971—if it may even be considered a delay—because he was only exercising his right to secure counsel. In a similar vein, it is urged that the defendant cannot be said to have caused the continuance granted on December 6 to allow the newly appointed counsel time for preparation because to do so would infringe on his right to able representation and, in any event, that delay resulted from the court’s failure to appoint counsel earlier. As to the final continuance granted on January 3, 1972, defendant argues that the record does not show he agreed to that continuance and he should not be held liable for delays occasioned by appointed counsel. In a case involving the waiver of a jury trial by an attorney for his client, the supreme court has said that the relationship of an attorney to the client is one of agency, and the general rules of law applicable to agency apply. (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.) The supreme court noted that an accused ordinarily speaks and acts through counsel. In People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, the court reaffirmed the rule enunciated in Novotny. Since the time between defendant’s arrest on October 28, 1971, and the trial on February 28, 1972, only slightly exceeded 120 days, if the defendant was responsible for any of the several delays, he would not be entitled to discharge under the statute. Both continuances of the trial were at the request of defense counsel, and no delay from the original trial date of December 6 was at the instance of the prosecution or the court, so clearly defendant is not entitled to a discharge on the grounds that the State failed to give him a speedy trial.

The defendant also urges that he was not proved guilty beyond a reasonable doubt. It is uncontroverted that the defendant received a $300 check from the complaining witness James for which defendant promised to deliver a color television set. Likewise, it is uncontested that the defendant cashed the check and did not deliver a television set, nor return the money to the Jameses.

The defendant testified that he was a self-employed seller of small appliances and televisions; that he made no misrepresentation to the Jameses; that he accepted the check from the Jameses with the payee space left blank, being uncertain whether he would obtain the television in St. Louis or Peoria. Defendant said he told the Jameses it would take a week to 10 days to obtain the set; that he went to an auction house in Springfield where he could purchase television sets wholesale; and that he was on his way to deliver the television set when he was arrested, but that the police failed to see the set in the back of his car. In contradiction to this, the Jameses testified that the defendant represented to them he was associated with a well-known Springfield television dealer and that tire set would be delivered in 1 or 2 days. The television dealer testified that while he knew the defendant, the defendant had never been employed or associated with the business. The former operator of the auction house testified that he also knew the defendant, but that the auction house was out of business in December 1970, and that it had never been an authorized RCA dealer and could not get television sets at wholesale prices. A bank employee testified that the James’ check for $300 had been cashed on December 2, 1970, and an FBI expert testified that the defendant had filled in his name and endorsed that check. The police officer who arrested the defendant on December 6, 1970, testified that he saw no television in the defendant’s car. Here, the jury observed and listened to the defendant as well as to the prosecution witnesses whose testimony was inconsistent with defendant’s on almost every element. Questions of credibility are questions of fact to be decided by the jury and so are tire inconsistencies between the defendant’s testimony and that of the other witnesses. (People v. Brandys, 15 Ill.App.3d 379, 304 N.E.2d 471.) When dealing with questions of credibility of witnesses, the reviewing court cannot substitute its judgment for that of a jury on the issue unless proof was so unsatisfactory as to warrant a reasonable doubt of guilt. (People v. Stewart, 12 Ill.App.3d 226, 297 N.E. 2d 391.) Here, the proof of guilt was satisfactorily established.

Defendant alleges that he was denied due process by the failure of the State to produce evidence that he was arrested on two occasions subsquent to his December 6 arrest—December 10 and December 14, 1970. Defendant cites Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, as authority for the argument that such evidence was exculpatory in that it would show defendant was attempting to deliver the television set to Mr. James when arrested as defendant had testified. Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562, clearly indicates defendant’s argument is without merit. Firstly, there was no specific request by the defense for records of subsequent arrests; secondly, there was no evidence that the defendant possessed any television sets on either of the subsequent arrests; and, thirdly, the evidence established that defendant was charged with the instant offense on December 7, 1970, shortly after his initial arrest on December 6, 1970. In addition, although apparently ignored by both parties on appeal, a stipulation was made at trial by the state’s attorney and defense counsel concerning the subsequent arrests.

The defendant also contends that the trial court erred in the latitude allowed the prosecutor during summation and that the court abused its discretion in denying probation. Examination of the record discloses that the former is of no merit, being a mere allegation that certain remarks could be construed in a way prejudicial to defendant, and as to the latter, evidence adduced at the hearing in aggravation and mitigation, in addition to an extensive probation officer’s report, indicates that the denial of probation was well founded. Further analyzation of these two issues would be of no utility and it is clear that the trial court did not abuse its discretion in either matter.

The defendant expressly waived the issue originally raised alleging that the imposition of a 2-to-10-year sentence was unduly harsh. The theft of property valued in excess of $150 by deception is a Class 3 felony (Ill. Rev. Stat. 1973, ch. 38, ¶16—1), and the maximum term for a Class 3 felony is any term in excess of 1 year not exceeding 10 years. (Ill. Rev. Stat. 1973, ch. 38, ¶ 1005—8—1(b) (4).) The minimum term for a Class 3 felony is to be 1 year “unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court.” (Ill. Rev. Stat. 1973, ch. 38, ¶ 1005—8—1(c) (4).) Therefore, the sentence was within the confines of the statute and will be affirmed, as will the conviction.

Affirmed.

TRAPP, P. J., and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ray Lee Newbern, Defendant-Appellant.
    (No. 11935;
    Fourth District
    April 10, 1974.

      CRAVEN, J., dissenting.
    John F. McNichols, Deputy Defender, of Springfield (J. Daniel Stewart, Assistant Appellate Defender, of counsel), for appellant.

      Robert Welch, State’s Attorney, of Virginia (John A. Beyer, of Circuit Attorney Project, and Bruce Brown, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

After a bench trial, defendant was convicted of indecent liberties with a child (Ill. Rev. Stat. 1971, ch. 38, par. 11—4(3).) Sentence of 4 to 5 years was imposed.

Defendant urges that the trial court’s failure to order psychiatric examinations as required by the Charities and Public Welfare Code (Ill. Rev. Stat. 1971, ch. 23, par. 2401-2402) was reversible error, that defendant was denied a fair trial by reason of a continuance of the trial for 8 days, that defendant was not proved guilty beyond a reasonable doubt, that the trial court improperly considered psychologists’ reports at the probation hearing because defendant was not advised of his constitutional privilege against self-incrimination and because he had not waived his psychologist-patient privilege, and that probation was improperly denied and that the sentence was excessive.

The complaining witness, defendant’s 10-year-old step-daughter testified that she and the defendant were alone in one room of their residence where she was hanging up a dress, when the defendant approached and “he started to rub my breast and he asked me if I liked it. I said, ‘Yes’. Then he asked me again. I said ‘Kind of’. Then he asked me once more. I said ‘No.’ Then he stopped rubbing.” The incident lasted 10 to 15 minutes, during which defendant’s step-daughter was fully clothed. She testified that she was 10 years old on the date of occurrence. Defendant was 45 years old. The witness’ testimony showed some confusion as to the time that she told her mother and the sheriff of the incident, but she was certain the incident occurred on Monday when her mother was at “Tops”.

The defendant testified and denied the occurrence, stating that his daughter had “told stories” before. After defendant’s direct testimony, the People requested a continuance until the next day to produce rebuttal witnesses and to prepare for cross-examination. Over defendant’s objection a continuance was granted for 8 days until February 22, 1972, the earliest date the court could set the case. When the case continued, the State did not cross-examine the defendant, and instead called defendant’s wife, who testified that on one occasion prior to that testified to by defendant’s step-daughter, she had seen the defendant rubbing the little girl’s breast. The complaining witness was recalled and testified that defendant had rubbed her breast and asked whether she liked it on many occasions. Three other rebuttal witnesses were caUed to testify that defendant’s reputation for truth and veracity was bad.

The trial court did not order psychiatric examinations or reports as provided by “An Act to provide for trial in a circuit court and for a psychiatric examination of persons charged with sexual crimes against children” (Laws of Illinois, 1965, p. 3459). Such error was not raised by defendant at his trial nor briefed on his appeal. After it had been raised by this court at oral argument, supplemental briefs were filed. Accordingly, we must consider whether such error is a plain error affecting substantial rights within Supreme Court Rule 615(a). This Act is incorporated into the Charities and Public Welfare Code (Ill. Rev. Stat. 1969, ch. 23, pars. 2401-2402), and provides in relevant part:

“2401. Sexual Crimes Against Children—Trial.) § 1. In all cases in which a person of the age of 17 years and upwards is charged with any violation of a statute or ordinance, the basis of the charge being a sexual crime against a child under the age of 13 years, the trial of such charge shall be in a circuit court.
2402. Psychiatric Examination.) § 2. The judge of the court in which an indictment or information under Section 1 of this Act is tried shall, before trial, require a psychiatric examination of the person charged. The examination shall be by two psychiatrists appointed by the court, who shall make a personal examination of the person charged and shall file with the court a report in writing of the result of their examination, a copy of which shall be delivered to the person charged.”

The failure to require such examinations and reports is conceded to be error. (People v. Flowers, 51 Ill.2d 25, 30, 281 N.E.2d 299.) The Act in question has had minimal examination by our courts, and the question of prejudice resulting from failure to observe the statutory mandate has never been discussed. People v. McDonald, 44 Ill.App.2d 348, 352, 194 N.E.2d 541, 542; People v. Kolden, 25 Ill.2d 327, 328, 185 N.E.2d 170; People v. Allen, 7 Ill.App.3d 249, 250, 287 N.E.2d 171, 172; People v. Hedenberg, 9 Ill.App.3d 597, 599, 291 N.E.2d 848, 849.

Defendant contends that the statute itself raises a presumption of a bona fide doubt as to his fitness to stand trial or be sentenced requiring reversal of his conviction, and alternatively, that the failure to order the required examination and reports interfered with defendant’s right to have the trial court determine whether defendant should be treated as a sexually dangerous person (Ill. Rev. Stat. 1971, ch. 38, par. 105—1.01) to the extent that his conviction must be reversed.

We examine the contention that the provisions of the Act providing for a psychiatric examination created a bona fide doubt of fitness to stand trial or be sentenced. In the aspect of fitness and competence to stand trial, it has never been asserted that the defendant was incompetent or unable to understand the nature or purpose of the proceedings, or unable to assist in his defense. It is - not asserted that there was unusual conduct of defendant during the proceedings which would raise a bona fide doubt of his competence for trial, nor is it contended that there are facts, which if known to the court, would have raised such doubt. It is not contended that there was a prior history of commitment for mental illness. Ill. Rev. Stat. 1969, ch. 38, par. 104—2 now provides for examination by qualified experts to determine competency before trial, during trial and after a finding of guilt but before sentence is imposed. Such provisions are retained in elaborated form in the Unified Code of Corrections. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—2—1.) There is no assertion of incompetence of counsel in failing to rely upon the statutory provision to determine incompetence for trial. Rather, defendant chose to deny the charge and contest the sufficiency of the evidence. People v. Hedenberg, 9 Ill.App.3d 597, 291 N.E.2d 848.

We examine the contention that the charge of a sex crime against a child and the statutory provision for psychiatric examination, without other circumstances indicating defendant’s competence for trial, raises a bona fide doubt of such competence sufficient to require a sua sponte order for a hearing upon competence as distinguished from a general psychiatric examination.

In People v. Russo, 52 Ill.2d 425, 288 N.E.2d 412, cert. denied, 410 U.S. 940, the supreme court considered an analogous problem. There, defendant argued that his plea of guilty to voluntary manslaughter should not have been accepted without a prior competency hearing because the trial court had ordered psychiatric examination of the defendant. The results of such examination were not introduced into the record, and defendant argued that the court, by approving the examina.tions, itself impliedly indicated that it had reason to believe the defendant was incompetent. The supreme court held that as defendant had no prior history of mental illness, at no time suggested his incompetence, and was represented by competent counsel, the fact that the trial court authorized psychiatric examinations did . not establish a bona fide doubt as to defendant’s competence to stand trial. Had the trial court here, in fact, ordered a psychiatric examination, but had not placed the results in the record, defendant would be in exactly the same situation as Russo except that the moving factor in the examination here would have been the legislative mandate of chapter 23, paragraph 2402, rather than the trial judge’s evaluation of the circumstances. If a trial judge’s authorization of a psychiatric examination upon actual observation of the defendant’s conduct and knowledge of the crime charged does not establish bona fide doubt as to defendant’s competency, it follows that the legislature’s order for such examination without any personal observation of defendant creates no more bona fide a doubt as to the defendant’s fitness.

Likewise, the nature of the crime charged does not raise a bona fide doubt as to defendant’s fitness to stand trial or be sentenced, which would, under either Ill. Rev. Stat. 1969, ch. 38, par. 104—2, or Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—2—1, require the trial court to order a competency hearing. In People v. Motis, 23 Ill.2d 556, 179 N.E.2d 637, defendant pleaded guilty to statutory rape of his 11-year-old step-daughter. At his hearing in aggravation and mitigation, it was disclosed that defendant had actually been convicted of two prior sex crimes against children, and defendant himself stated that he wanted and needed medical treatment. The supreme court noted that no competency hearing had been requested and there was no showing that defendant had ever been adjudged a mental incompetent, and held that under such circumstances, the existence had not been established of a bona fide doubt requiring a competency hearing. In Motis, it was said that:

“[I]n People v. Zerba, 20 Ill.2d 269, we held that bona fide doubt of sanity was not raised by disclosures that the accused had committed prior sex crimes and that he had once been declared a criminal sexual psychopath.” (23 Ill.2d at 559.)

The mere fact, however, that one is both the victim of and unable to control such impulses does not engender the inference that he is unable to comprehend and assist in the defense of criminal prosecution based upon such conduct. There is no prerequisite to criminal prosecution that defendant be free from mental or emotional disturbances. In Withers v. People, 23 Ill.2d 131, 135, 177 N.E.2d 203, holding that mere prior confinement in the psychiatric division of the penitentiary does not establish the existence of a bona fide doubt as to defendant’s competence, the supreme court made the following distinction:

“The test to be applied in determining whether a defendant has the mental capacity to stand trial is whether he understands the nature and object of the charges against him and can, in co-operation with his counsel, conduct his defense in a rational and reasonable manner. [Citations.] If the defendant does understand the nature and object of the charges against him and can, in cooperation with his counsel, conduct his defense in a rational and reasonable manner, then he is mentally competent to stand trial although upon other subjects his mind may be unsound.”

In People v. Hammond, 45 Ill.2d 269, 277, 259 N.E.2d 44, 47, it was said that:

“While a defendant may possess a sociopathic personality and suffer from psychiatric and social disturbances, these circumstances, without more, are not sufficient to raise a bona fide doubt as to his competency.”

The mere fact that defendant has been found to have a sociopathic personality disturbance is insufficient to establish a bona fide doubt of his competency. (People v. Franklin, 48 Ill.2d 254, 257, 269 N.E.2d 479.) For the foregoing reasons, we hold that the mere fact the adult defendant. was charged with a sexual crime against a child, which charge requires a pretrial psychiatric examination of the defendant, does not by itself establish a bona fide doubt as to defendant’s fitness to stand trial or be sentenced. The failure to provide such examinations and reports thus does not necessarily result in the trial of a defendant whose fitness to be tried is questionable.

Defendant asserts in the alternative that the failure to provide psychiatric examinations and reports interfered with his right to have the trial court determine whether he should be treated as a sexually dangerous person (Ill. Rev. Stat. 1969, ch. 38, par. 105—1.01), to the extent that -his conviction must be reversed.

The statutory purpose and judicial use of chapter 23, paragraphs 2401 and 2402, are, at best, ill defined. Originally adopted in 1957, the provisions were editorially placed with “An, Act in relation to sexually dangerous persons * * *” (Ill. Rev. Stat. 1957, ch. 38, par. 820.01), and numbered in series as paragraphs 825f and 825g. Upon adoption of the Act of Criminal Procedure of 1963, such provisions were transferred from the Criminal Code and were given the present designation. The Comment of the Drafting Committee of the Act includes:

“The committee likewise considered the act of 1957 (L. 1957, p. 2568, Sexual Crimes Against Children, ch. 23, §§ 2401-2404) providing for psychiatric examination of persons over seventeen years of age charged with sexual offenses against children under thirteen. While some question has been raised as to the constitutionality of the procedure prescribed it had not been passed upon by the Supreme Court. No other case had been found in which the act. had been construed by the Illinois reviewing courts. In view of the fact that the act was adopted so recently by the General Assembly, and. the dearth of information as to its utility and application in practice, thé committee decided not to tinker with it. However, since it provides for a special proceeding ancillary to offenses against children, the committee concluded that it should not be incorporated into the Code of Criminal Procedure.”

So far as the statute discloses, the psychiatric examination has no statutory focus, and there is no direction as to what is to be done with reports filed with the court and delivered to the person charged. There is no provision or direction for entering any order upon the report, or for any further proceeding related to such examination. In contrast, a petition filed which alleges facts contending to show that the person named is sexually dangerous, there is a direction that the appointed psychiatrists make an examination to determine whether the defendant is sexually dangerous. (Ill. Rev. Stat. 1969, ch. 38, par. 105—4.). Such petition by the State’s Attorney presumably would allege facts tending to show the “criminal propensities to the commission of sexual offenses” and the “demonstrated propensities to sexual assault or acts of sexual molestation of children” as provided in. the definition of a sexually dangerous person. Ill. Rev. Stat. 1969, ch. 38, par. 105—1.

The Sexually Dangerous Persons Act itself belies the contention that defendant has any assertable right to have a determination made of his status as a sexually dangerous person. Defendant misconstrues the function of the court in Sexually Dangerous Persons proceedings. No “right” to have the trial court make such a determination arises until after a petition has been filed by the State’s Attorney or Attorney General. No such petition was filed in this case, thus defendant had no “right” which might have been abridged.

While we conclude that the proceeding under the Sexually Dangerous Persons Act is a matter of the prosecution’s direction rather than a “right” of the person charged, there is, in fact, a correlative provision by which the defendant may present the. issue of whether he should be tried and punished for the offenses charged. Ill. Rev. Stat. 1969, ch. 38, par. 6—2(a), provides:

“A person is not criminally responsible for conduct if at the time of such conduct, as the result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”

The Committee Comments (S.H.A. (1972), ch. 38, par. 6—2, p. 328), points out the change from the former requirement which was in effect at the time of the adoption of sections 2401 and 2402, i.e., that one might be convicted unless there was a total incapacity to know what conduct was wrongful, or total incapacity to control behavior.

As noted, this record shows no claim was raised by defendant either as to the competency to stand trial or responsibility for the offense charged. Once there is some evidence which raises a doubt as to defendant’s sanity at the time of the alleged offense, the prosecution must prove his responsibility beyond a reasonable doubt. (People v. Hawkins, 53 Ill.2d 181, 290 N.E.2d 231; People v. Smothers, 55 Ill.2d 172, 302 N.E.2d 326.) In this light the record does not suggest that defendant was so prejudiced as to a substantial right that we must find plain error.

We find no abuse of discretion in the granting of a continuance to the prosecution in this bench trial. The case had been taken from the jury calendar upon defendant’s motion. At the time of the continuance, a jury trial was to commence before the judge within 20 minutes. Defendant’s counsel was unavailable for several days and the trial court had scheduled jury trials. The trial was resumed at the earliest time that the court and counsel could be available. The granting of a continuance had been upon the particular facts of each case and will not be disturbed unless there is a clear abuse of discretion. People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54.

Defendant contends that the testimony of the complaining witness was not clear and convincing, citing People v. Kolden, 25 Ill.2d 237, 185 N.E.2d 170. While the young girl had some difficulty with the passage of several weeks and fixing the date of her complaint, the trial court expressed the view that her testimony concerning the events at issue was clear and convincing. The issue of credibility is for the trier of fact and the reviewing court will not substitute its judgment for that of the trial judge. People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.

It is asserted that this court must reverse because the date was not proven beyond a reasonable doubt. This case differs from People v. Rivas, 5 Ill.2d 556, 126 N.E.2d 638, which is cited by defendant. In that case there was a trial upon one of three separate charges. When the trial court ordered that certain evidence be suppressed, the State was permitted to introduce the testimony of two offenses not then being tied which occurred on a different date. The conviction was reversed for a variance between the indictment and the proof, which not only’ misled defendant in preparing his defense, but would subject him to double jeopardy at the subsequent trial of the offenses pending, This record shows it to be clear that defendant suffered no confusion in preparing his defense and the entire record may be reviewed to support any claim of double jeopardy. (People v. Jankowski, 391 Ill. 298, 63 N.E.2d 362.) In this case the precise time is not an essential element of the offense, and the statute of limitations is not an issue. People v. Angelica, 358 Ill. 621, 193 N.E. 606.

Defendant contends that it was improper for the trial court to consider certain psychologists’ reports at the hearing on probation for the reason that defendant was not advised of his constitutional privilege against self-incrimination, and that he had not waived the psychologist-patient privilege. Such reports of examination were made pursuant to the specific request by defendant in a companion case, and it appears that the sentencing in each case had been delayed by reason of the fact that defendant requested the information to be available at the hearing on probation. In both this case and the companion case, the report includes defendant’s signed release of reports to the probation department. There was, in fact, no objection to the report when introduced at defendant’s request and it appears that any asserted error is properly deemed waived.

Finally, defendant contends that the trial court abused its discretion by denying probation and imposing an excessive sentence. The crime for which defendant was convicted carries a 4-year minimum sentence (Ill. Rev. Stat. 1971, ch. 38, par. 11—4(c)), and under the Unified Code of Corrections, indecent liberties with a child is a Class 1 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 11—4(c)) which continues to carry a 4-year minimum term, (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—8—1(b)(2).) The matter of sentencing lies within the sound discretion of the trial court (People v. Burbank, 53 Ill.2d 261, 275), and will not be altered by a reviewing court unless it is apparent that the court has abused its discretion. Likewise, the granting or denial of probation is a matter lying within the sound discretion of the trial court, and review is limited to the extent of ascertaining whether the trial court did, in fact, exercise discretion or whether it acted in an arbitrary manner. People ex rel. Ward v. Moran, 54 Ill.2d 552, 555, 301 N.E.2d 300.

The judgment is affirmed.

Affirmed.

SMITH, P. J., concurs.

Mr. JUSTICE CRAVEN,

dissenting:

I am unable to agree with the majority opinion insofar as it holds that the statutorily required psychiatric examination is not necessary. The observations contained in my dissenting opinion in People v. Mahoney (Ill. App. 4th Dist., No. 11881), 18 Ill.App.3d 518,-N.E.2d -, are applicable here.

      The Unified Code of Corrections now defines insanity in comparable language. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—1—11.) “Insanity” means the lack of a substantial capacity either to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of the law as a result of mental disorder or mental defect.