author: Mr. JUSTICE CRAVEN

text:
    Barbara D. Hall, Plaintiff-Appellant, v. Leiby S. Hall, DefendantAppellee.
    (No. 11980;
    Fourth District
    April 18, 1974.
    A. James Shafter and Michael J. Kehart, both of Decatur, for appellant.
    Harold F. Tenney, of Decatur, for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This appeal involves the sufficiency and appropriateness of a periodic alimony award in a divorce case. The parties were married in 1959. They separated in 1971. In 1972, the plaintiff-wife procured a divorce upon the grounds of mental cruelty. It was alleged or the evidence established that the defendant used profane and abusive language toward her; that he would stay out late at night without telling his wife his whereabouts; that he was often drunk or drinking heavily and he drove in this condition. By the terms of the decree of divorce the defendant was ordered to pay $1000 a month as alimony. The plaintiff sought modification of the decree by a motion filed within 30 days of its entry. Upon denial of that motion, she appeals and urges that this is a proper case for alimony-in-gross rather than periodic alimony. She asserts that the existing special circumstances show periodic alimony to be unwise and unadvisable.

At the time of tire marriage, the defendant was employed by an oil company and earned about $600 per month. During the marriage, the defendant, through his own efforts, fared very well financially. Indeed, a financial statement shows his net worth as of January 1971 to be $1,574,234.67. During the marriage the parties lived in a modest home and did not in any way live on an extravagant basis. There was difficulty between them with reference to money and the plaintiffs ability to manage the household upon the basis of the allocated funds. There is a clear indication in this record, and we see no necessity for reciting the details, that this difficulty over money and the defendant’s desire to accumulate money was a substantial part of the problem and it remains practically the principal issue upon this appeal.

During the marriage the wife did not work, nor did the defendant want her to work. She is now 41 years of age and although she was engaged in voluntary charitable activities, it was not asserted that she has any particular skills for commercial employment.

The complaint in this case did not allege the existence of special equities or equitable ownership as that term is used in our Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 18), and there is no claim now made that special equities exist within the contemplation of the provisions of that section which authorizes the court to compel conveyance of property from one party to the other in the event that special equities are alleged and proved. This court discussed this issue in Debrey v. Debrey, 132 Ill.App.2d 1072, 270 N.E.2d 43, and we see no need for a repetition of that which we there observed.

The quoted statutory provision relates to conveyance upon the establishment of special equity. Section 19 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 19) provides and authorizes the court upon the entry of a decree of divorce to make such order touching the alimony and maintenance of thé wife as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just. By this section of the statute the court is authorized to order the husband or wife to pay to the other such sum of money or convey such real or personal property as the court may deem to be equitable.

The authority granted in this section is not based upon special equities in the sense of ownership but rather is based upon the existence of special circumstances which lead to the conclusion that periodic alimony, although judicially preferred, is inappropriate under the facts. An excellent article that succinctly states the difference between the power granted in these two sections is found in the Illinois Bar Journal (Jan. 1974), Neumark, Property Rights in Divorce, at page 242. The author distinguishes tire two sections as follows:

“Whereas the genesis for a section 18 transfer is some demonstrative proof of equitable ownership in the property, no such precondition attaches to an alimony-in-gross conveyance. All that is required under section 19 is that the recipient spouse be entitled to alimony and that the conveyance be equitable in light of the surrounding circumstances. The conveyance need not, in fact, be requested by the recipient spouse so long as the record demonstrates that this form of alimony is in his or her best interests. Thus, as often is the case, a special equity claim to property which has been short-circuited either by a failure to evidence equitable merit or by a pleading defect, may still be accomplished indirectly by a court directed transfer of property as part of the gross award of alimony. Indeed many gross awards have been predicated in part on factors that closely resemble special equity considerations, even though such factors in and of themselves were imperfect to justify a conveyance under section 18. These awards suggest that special equity considerations are ambulatory and may be adopted by the court as at least a partial basis for an award of that property in gross alimony form.
Before the alimony section of the Divorce Act was amended in 1949 to provide the alimony-in-gross awards, Illinois courts had no authority whatsoever to direct transfers of property from one spouse to the other in lieu of periodic alimony. The usual practice of awarding alimony prior to the codification of the alimony-in-gross concept was to do so in such a manner that it would remain within the control of the court. This was ordinarily accomplished by providing for an award of periodic alimony payable over an indefinite period of time, modifiable after decree upon a showing of an increase or decrease of tire parties’ needs or ability to pay. The award of periodic alimony is still judicially preferred to alimony-in-gross because the court retains jurisdiction to make these modifying orders as they become appropriate. In the final analysis, however, it is clear that both the allowance of alimony, whether in periodic or in gross form, and its amount, rest primarily within the discretion of the court.
The property that comprises the gross award, like the special equity claim, is not confined to real estate and may be in money or in property, real or personal.’ Furthermore, it is well to remember that the gross award package often contains several components. It may consist not only of one or more properties, real or personal, but may in addition call for the payment of a specified sum of money in installments over a definite period of time as well.” (Citations omitted.)

As noted in the cited article, alimony-in-gross is not a panacea. In Honey v. Honey, 120 Ill.App.2d 102, 256 N.E.2d 121, we observed that the usual and proper procedure is to award alimony in periodic payments. The factors of the respective needs and abilities of the parties then remain within the control of the court. We then discussed the cases and factual circumstances that warrant alimony-in-gross. In Honey, we found no circumstance that would tend to support an award of alimony-in-gross. However, we noted:

* * [A]limony in gross may be awarded where the entire record shows that periodic payments are not feasible, as where the record shows that a spouse does not pay his bills or will not work, Smothers v. Smothers, 25 Ill.2d 86, 182 N.E.2d 758; Miezio v. Miezio, 6 Ill.2d 469, 129 N.E.2d 20; or where the husband was regularly intoxicated and refused to work, Persico v. Persico, 409 Ill. 608, 100 N.E.2d 904; or again, where the husband’s occupation was so hazardous that he might not be able to continue to produce income, Rodely v. Rodely, 28 Ill.2d 347, 192 N.E.2d 347.” 120 Ill.App.2d at 105—106, 256 N.E.2d at 123.

Our review of the record in this case leads to the conclusion that the provision for alimony should have been an alimony-in-gross award rather than periodic alimony. There is no reason to continue the financial bickering between the parties through periodic alimony. Here, as in Rodely, it seems both expedient and practical that alimony-in-gross be awarded for there is an element of hazardousness, and here, as in Overton v. Overton, 6 Ill.App.3d 1086, 287 N.E.2d 47, the husband has a substantial net worth but a somewhat irregular yearly income. In this connection, the evidence indicates that his yearly income is in large part dependent upon the amount that he determines that the corporations closely held by him will pay him by way of compensation. In this case, as in Dmitroca v. Dmitroca, 79 Ill.App.2d 220, 223 N.E.2d 545, the husband’s drinking is a factor and there is no security for the wife under the decree for periodic alimony.

Likewise, in this case, the reasons for preference of periodic alimony are absent. There is no indicated need here to determine on a continuing basis the respective need and ability to pay. There were no children bom of the marriage, nor are there any adopted children. The variables with reference to need in connection with a mother supporting a child accordingly are not present. In Harding v. Harding, 18 Ill.App.3d 550, -N.E.2d-, we considered a decree providing for periodic alimony of $1200 per month together with $200 per month for support of each of four minor children, and in addition made disposition of certain property held in joint tenancy and provision for maintaining insurance policies. The facts in that case were such that periodic alimony was clearly mandated under the case decisions. The reasons for periodic alimony present in abundance there are absent here.

Upon this record, we can readily determine that the periodic alimony awarded was inadequate within the guidelines set forth in Schwarz v. Schwarz, 27 Ill.2d 140, 188 N.E.2d 673. Indeed, we would characterize the award as minimal. For the reasons stated, however, alimony-in-gross is more appropriate upon the facts.

That portion of the decree of the circuit court of Macon County providing for periodic alimony is vacated and this cause is remanded to that court with directions to enter an order providing for alimony-in-gross in accordance with the views herein expressed.

Vacated in part and remanded with directions.

SMITH, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. David J. Symmonds, Defendant-Appellee.
    (No. 12303;
    Fourth District
    April 18, 1974.

      James R. Burgess, Jr., State’s Attorney, of Urbana (Donald R. Parkinson, Assistant State’s Attorney, and James L. Profit, Senior Law Student, of counsel), for the People.
    No appearance for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal by the State pursuant to Supreme Court Rule 604 (a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1)) from an order granting the defendant’s motion to suppress evidence. On January 10, 1973, at 8:15 P.M., Illinois State Trooper Nargelenas stopped the defendant’s car after observing it had only one headlight functioning. Following routine procedure for hours of darkness, as the trooper approached defendant’s vehicle he used a flashlight to glance inside to ascertain the number of occupants and the possible presence of any weapon. In so doing he observed some beer cans on the floor behind the front seat and a plastic lid with a grass-like substance on the back seat. When the defendant, who was alone in the car, was unable to produce his driver’s license, he was requested to accompany the trooper back to the squad car to determine by radio whether the defendant had a valid driver’s license. The trooper asked the defendant’s age and the defendant refused to tell him. It appeared to the officer that the defendant was under 21 years of age. The trooper then returned to the defendant’s car where he ascertained that the beer cans were empty. While looking in the rear of the vehicle, the trooper again noticed the grass-like substance on the back seat, and suspecting that it was marijuana, he seized it.

After a complaint was filed charging defendant with possession of more than 2.5 grams, but less than 10 grams of cannabis in violation of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56½, par. 704), he was arraigned and plead not guilty. The defendant then filed a motion to suppress alleging that the search was illegal, stating that he had been stopped for a minor traffic violation and offered no resistance to the arrest for failure to have one headlight working and for failure to have his driver’s license on his person, after which “* * * the officer thereupon conducted a search which was illegal and recovered from the petitioner’s automobile a small amount of Cannabis which was sitting on a plastic lid on the rear seat of the automobile along with miscellaneous items”.

On March 2, 1973 a hearing was had on the motion to suppress, following which the court granted the motion along with a statement of the court’s findings. The court found that the trooper had observed the plastic lid with the grass-like substance on the back seat as well as the beer cans on the floor when initially approaching the defendant’s car, and that after it was learned the defendant did not have a valid driver’s license on his person and the defendant refused to tell his age, the trooper had probable cause to return to the defendant’s car and ascertain whether or not the beer cans contained any beer. However, the court went on to find “the officer, at the same time, suspected that the grass on the plastic lid might be marijuana. There being no evidence before the court that the officer had any training or knowledge of what marijuana looks like, there is finding by the court that the officer did not have probable cause to seize the grass in the back seat.” The court also found “* * e that the evidence was not produced to the court to ascertain the time it was determined that the substances [sic] was marijuana or at what time the officer had probable cause to believe that it was.”

On this appeal the State presents three issues: Whether the conduct of the trooper constituted a search; if so, whether it was a reasonable search; and whether the trial court improperly excluded the testimony of the trooper. At the outset it should be noted that the court specifically found the trooper had probable cause to return to the defendant’s car and investigate the condition of the beer cans. The contention of the defendant in his motion that the entire search was invalid because he had only been stopped for a minor traffic violation is of no merit. The United States Supreme Court has recently spoken on the matter of warrantless searches incident to arrest for traffic offenses and rejected the contention that the relative seriousness of the offense for which the arrest is made limits the extent of the permissible search, holding that a law-enforcement officer’s authority to make a full search incident to a custodial arrest requires no justification beyond the fact of the arrest itself. (United States v. Robinson, 94 S.Ct. 467, 38 L.Ed.2d 427; Gustafson v. Florida, 94 S.Ct. 488, 38 L.Ed.2d 456.) Those Supreme Court cases are similar to the instant case in that they involve an arrest for relative minor traffic violations and a fortuitous discovery of narcotics in the subsequent search but are distinguishable in that the search was of the person of the defendant.

We agree with the trial court that the State trooper had probable cause to return to the car and make a search. The Illinois Supreme Court has said that an accused is afforded constitutional protection against unreasonable searches and seizures if the State is compelled to support a search incident to an arrest without a warrant by credible evidence showing the basis for reasonable cause by the arresting officer. (People v. McCray, 33 Ill.2d 66, 210 N.E.2d 161.). Here defendant failed to produce a driver’s license at the request of the arresting trooper, and this alone has been held a circumstance sufficient to warrant a policeman’s reasonable belief that he may be dealing with a criminal rather than a mere traffic violator. (People v. Gilyard, 124 Ill.App.2d 95, 260 N.E.2d 364.) In that case, the court upheld the policeman’s search of the driver and both passengers of the automobile. In addition, in the instant case, the trooper had observed beer cans in the back of the car and defendant appeared to be under the age of 21 (in fact, defendant was 19), so that the mere possession of the beer might be an offense even if it were not open. Regardless of how well the trooper had seen the plastic lid containing a grass-like substance from outside the car, once legitimately inside the car for the purpose of inspecting the beer cans, he was not obliged to ignore the former. The Illinois Supreme Court has said:

“We have held that a search implies a prying into hidden places for that which is not open to view; and that a search implies an invasion and quest with some sort of force, either actual or constructive * * *. Where, as here, the articles are in plain and open view and are observed by police officers under suspicious circumstances, it is not a ‘search’ nor an unreasonable seizure for the officers to make a reasonable investigation thereof.” (People v. McCracken, 30 Ill.2d 425, 429, 197 N.E.2d 35.)

A search incident to a lawful arrest is reasonable even though it is not restricted to evidence directly related to the offense for which the arrest is made. (People v. Pruitt, 79 Ill.App.2d 209, 223 N.E.2d 537.) The test is whether the search was reasonable. (People v. Wright, 42 Ill.2d 457, 248 N.E.2d 78.) A seizure of property, the possession of which is unlawful as well as evidence related to the crime, is permissible. People v. Hester, 39 Ill.2d 489, 237 N.E.2d 466.

Probable cause is required for any warrantless search. (Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022.) However, probable cause in that sense refers to a belief which is reasonable that a search of the particular place or thing will disclose evidence, fruits of the crime, or is necessary for the protection of the police officer so as to justify the search. Here there was a valid arrest and the court found probable cause to return to the car to investigate the beer cans. The real issue here is the precise scope of the required “probable cause”. The trial court in its order did not find the search itself invalid as lacking probable cause, nor did it make any finding that the marijuana was not contraband found in plain view during the valid search. Rather, the finding that the officer lacked probable cause is directed at the officer’s qualification or competency to formulate the probability that the grass-like substance was marijuana.

Again referring to the United States Supreme Court cases involving narcotics discovered in a search incident to arrest for minor traffic violations: in Robinson, the defendant was stopped while driving without a license, and during the subsequent search the officer felt an object which he removed from a pocket and saw that it was a crumpled cigarette package. The officer testified that he did not know what was in the package, but it did not feel like cigarettes so he opened it and found 14 gelatine capsules containing a white powder which he thought to be, and which later analysis proved to be, heroin. The heroin was introduced at the trial which resulted in the defendant’s conviction. Therefore, in Robinson the policeman only saw the crumpled up cigarette package— nothing resembling narcotics—and then opened the package and saw capsules which contained white powder which he thought to be heroin. In discussing the validity of the search and seizure, the Supreme Court did not question why the policeman thought the white powder was heroin. The Supreme Court said:

“Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct.”

Gustafson v. Florida is factually more similar to the instant case, involving a minor traffic violation where the defendant was placed under arrest for failure to have a driver’s license and marijuana was discovered in the subsequent search. In that case the policeman took the cigarette package from defendant’s pocket and saw marijuana cigarettes in it. At; the trial, the policeman testified: “I had been shown this in training at the police department and these appeared to be marijuana to me.” Again, the Supreme Court said that the search was valid and where it turned up a package, the policeman was entitled to open it, and when seeing it contained home-made cigarettes which he believed to contain an unlawful substance, he was entitled to seize them. It should be noted that in those two cases the police officers did not directly view the contraband as did the trooper in the instant case, and even after opening the packages the contents were not such that the officers could be positive they were contraband—rather a white powder which the first officer believed to be heroin and the second home-made cigarettes which that officer believed to be marijuana.

In People v. Machroli, 100 Ill.App.2d 227, 241 N.E.2d 609, while in the process of being lawfully arrested, the defendant placed a small box on a dresser in plain view of the arresting officer who picked it up, opened it, and found three tablets, later identified as a narcotic. The seizure of the tablets and the box was held not to be unreasonable. In another case, police officers who had probable cause to believe a crime was being committed when they entered a room were not required to overlook packets observable after the entry which were known to them to be the type of container used for dispensing narcotic drugs. (People v. Hayes,. 81 Ill.App.2d 400, 226 N.E.2d 517.) The instant case is distinguishable from these in that the arresting trooper did not merely see a package or contáiner which looked suspicious, but rather viewed the grassy substance itself. The term “probable cause” generally refers to the required condition precedent for the warrantless search (People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756) and therefore in the above cases the respective courts were only concerned with the legal justification for looking in the cigarette packages, box, and packets, not requiring proof of the officer’s qualification to recognize the contraband contained therein to justify seizing it. In the instant case, the judge found a valid arrest and probable cause to conduct a search of the car, but then found no probable cause to seize the marijuana not concealed so as to require opening any container.

The Illinois Supreme Court has said that the subjective belief of a police officer that an envelope contained in the pocket of a traffic offender contained gambling devices was an insufficient basis for a search of the envelope where it was not predicated upon other objective facts, such as something about the envelope itself or its visible contents which gave the police an indication of their illicit nature. (People v. Tate, 38 Ill.2d 184, 230 N.E.2d 697.) But where a search is lawful and reasonable and being made for specific property, it is not rendered unlawfully exploratory merely because it produces other articles of evidence relating to some other offense, and where an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search, he need not return it because it was not one of the things it was his business to look for. (People v. Robinson, 40 Ill.2d 453, 240 N.E.2d 630.) The trial court in Tate had admitted the evidence, saying that the envelope in the defendant’s pocket was in plain view. The supreme court reversed, saying the envelope itself being in plain view did not justify seizing it, and opening it to examine the contents constituted a search which was not justified where the officer only testified that he believed it contained policy slips. As noted above, the instant case does not involve the search and seizure of a package, capsule, or envelope which contains evidence or contraband, but rather the suspected contraband was directly observed and the issue is what action the officer could take upon that observation. In People v. Johnson, 15 Ill.App.3d 741, 305 N.E.2d 208, the police found a wallet on the floor near the defendant who was apprehended in a vacant apartment pursuant to a call from a tenant about prowlers. The wallet contained the ID of a man other than defendant or his two colleagues. The appellate court said the policeman had reasonable cause to arrest the defendant and since there was a valid arrest, the seizure of the wallet in plain view was permissible and did not even constitute a search. The policeman did not know that the wallet was stolen—stolen wallets are not the natural consequence of trespass and disorderly conduct with which the defendant was charged— and yet once there was a valid arrest, the policeman had authority to seize and investigate. Likewise, in the instant case, marijuana is not a natural consequence nor evidence of the traffic violations, and neither are all grassy substances contraband, but where there was a valid arrest and a legitimate search the police officer was authorized to seize and investigate the material.

The Code of Criminal Procedure provides for a motion to suppress evidence illegally seized to be made by a defendant aggrieved by an unlawful search and seizure on the grounds that the search and seizure without a warrant was illegal; or the search and seizure with a warrant was illegal either because of a defect in the warrant or in its execution. (Ill. Rev. Stat. 1971, ch. 38, par. 114—12(a)(1)(2).) The Code further provides that “The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were unlawful shall be on the defendant.” (Ill. Rev. Stat., ch. 38, par. 114—12(b).) This has been taken to mean, for example, that if the seizure would be lawful if the articles are contraband and it is unclear whether they are, the defendant must establish that they are not in order to succeed. People v. Hall, 56 Ill.App.2d 7, 204 N.E.2d 824.

Section 114—12 is phrased in terms of illegality of the search and seizure, and the cases collected in Smith-Hurd Annotated under that provision are concerned with the validity of the search rather than with the competency of the particular piece of evidence uncovered. It is the State’s burden to show the basis of an arresting officer’s belief which led to the arrest when a search without a warrant pursuant to the arrest is attacked. (People v. McCray.) At the hearing on the motion to suppress, the burden is on the defendant to prove the search and seizure unlawful. (People v. Wright.) Of course, proof that the grass-like substance is marijuana is an element of the offense which the State must prove at trial and a proper foundation must be laid for its introduction into evidence at the trial.

It appears that in an attempt to effect the spirit of paragraph 114—12(b) to determine the admissibility of evidence before trial, the the court made a ruling in anticipation of a failure of the prosecution to lay a foundation for the evidence at a trial—a failure to show how the evidence is relevant and competent rather than finding that the police officer had no probable cause to seize the marijuana found in the car. Neither the defendant nor the court objected to testimony about seizing marijuana given at the hearing which was held to determine the legality of the search and so any error in the trooper’s testimony at the hearing was waived. The order suppressing the marijuana is not based on findings of an unlawful search (in fact, probable cause to search the car was found), but rather on the grounds the police officer had failed to explain why he believed the grass substance was marijuana to establish his basis for having probable cause to seize it, and this appears to be in anticipation of foundation as to relevance or competence required in order to introduce evidence at a trial rather than to the validity of the search and seizure.

“Probable cause” justifying the search of an automobile without a warrant not incidental to arrest is knowledge of facts warranting a reasonably prudent person in believing that a crime has been or is being committed, and that evidence thereof is contained in the automobile. The search must be for specific property and may not be exploratory and made solely to find evidence of guilt. (People v. Erickson, 31 Ill.2d 230, 210 N.E.2d 422.) The above is the stricter rule for showing probable cause when there is a warrantless search not incidental to arrest, and, of course, in the instant case the search was incidental to arrest. To constitute “probable cause” for searches and seizures, it is unnecessary that the arresting officer should have before him legal evidence of suspected illegal actions. What constitutes “probable cause” for searches and seizures must be determined from the standpoint of the officer, with his skill and knowledge, rather than from the standpoint of an average citizen under similar circumstances. (United States v. Sebo, 101 F.2d 889.) For example, in People v. Davis, 33 Ill.2d 134, 210 N.E. 2d 530, the defendant’s car was stopped for making an illegal left turn and for having no license plates. When the defendant got out to display his driver’s license, the officer noticed a small tin-foil packet on the floor of the car. The officer picked up the packet, cracked it open and found it to contain narcotics. Only then was defendant arrested, after which the car was searched and another packet found. The supreme court held both packets were properly admitted into evidence—the first under the plain view doctrine and the second as incident to arrest. If the officer, simply seeing a tin foil packet which could contain anything, is justified in looking inside and concluding that it contained narcotics without a chemical analysis, then surely the trooper in the instant case, seeing a substance itself in plain view was justified in seizing it, whether under the plain-view doctrine or as a search incident to arrest. It seems clear that a police officer need not be absolutely certain that a certain substance is contraband if all other conditions for its seizure are established. For example, it appears that even an expert cannot positively identify heroin or distinguish it from other white powdery substances solely by visual inspection, but it has not been held necessary to have a professional chemist analyze suspected heroin before it may be seized. While in order to testify that a substance is a narcotic at a trial, a witness should testify to his qualifications, i.e., that he had been trained to recognize the substance, that he has had so many number of years as a policeman having extensive experience with it, etc., this does not appeal' to be necessary when the issue is merely the validity of the search and seizure. As was discussed above, this case is distinguishable from those where the contraband was packaged or in some way concealed, for example, the cases involving heroin contained in tin-foil packets or in capsules. It is true that every grass-like substance is not contraband, but neither do all tin-foil packages or capsules contain narcotics; and although grass-like substances are not per se contraband, any grass-like substance which is precious enough to be collected and placed in plastic containers surely gives rise to as much probable cause to the reasonable officer as would finding a tin-foil packet or a gelatin capsule. It appears that the order suppressing this evidence has intermingled two concepts: Whether the search is invalid because of no probable cause to institute the search, or because the particular thing seized was outside the scope of a reasonable search, and the requirement of foundation at trial to show the substance is contraband and how determined to be such in order to render it admissible evidence.

It may be useful in making this distinction to examine the dissenting opinion in United States v. Robinson. The cases cited there concern the finding of marijuana or heroin during the search of a person arrested for minor traffic violations. They do not question the reasonableness of the officers belief that the white powder or the grassy substance was narcotics, but rather the reasonableness of tire intensive search which resulted in the findings which the dissenters believe were unjustified searches for weapons since traffic offenses do not entail fruits of the crime as do other offenses which might justify the search of the person and the immediate area to prevent destruction. That is to say, even that dissent does not propose that probable cause concerns the police officer’s expertise in identifying narcotics by sight, but rather goes to the reasonableness of instituting the search and its intensity. Since this search was found to be incident to a lawful arrest, the evidence should not have been suppressed before the prosecution had an opportunity to establish its admissibility at trial.

Reversed and remanded.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE RECHENMACHER

text:
    Milton Hoyt et al., Plaintiffs-Appellants, v. Continental Casualty Company et al., Defendants-Appellees.
    (No. 73-26;
    Second District
    April 17, 1974.
    Glazer and Cohan, of Chicago, for appellants.
    Williams & Leonard, Ltd., of Chicago, for appellees.
   Mr. JUSTICE RECHENMACHER

dehvered the opinion of the court:

Appellants appeal from an order of the Circuit Court of Du Page County dismissing their complaint without leave to amend.

Only a brief statement of facts is necessary. Milton Hoyt is insured under a group hospital policy issued by defendant-appeUee Continental Casualty Co. The policy provides a cash payment of $35 (described in the policy as “Daily In-Hospital Indemnity”) when an insured person is “* # « confined within a hospital (as defined in the pohcy) * * * for each day of such confinement but not to exceed the number of days payable stated in the schedule, as the result of any one accident or sickness.”

The appellant entered the hospital on November 4, 1971, and was discharged on November 7, 1971. He was paid $105 as daily in-hospital indemnity, based on 3 days of confinement in the hospital, whereas he claims he is entitled to $140 for 4 days of hospital confinement.

The gist of appellant’s argument in support of his claim for $140 is that the word “day”, since it is not otherwise defined or restricted in the policy, means any part of a day in which the insured is confined in a hospital and, therefore, since he was confined in the hospital for part of November 4, all of November 5 and 6 and part of November 7, he should be paid for 4 days, even though the total time of confinement was only 69 hours. He says that, if the word “day” is ambiguous, then, as is customary in resolving ambiguities in insurance policies, the ambiguity should be resolved in favor of the insured.

Appellee, on the other hand, contends that the legal meaning of the word “day” is 24 hours but if any other standard is used to determine its meaning it should be based on custom and usage and in this case should be held to mean “hospital day”.

Both sides have cited cases purportedly establishing either that a “day” is 24 hours (People ex rel. Harless v. Hatch (1863), 33 Ill. 9; Soucie v. Ill. Agricultural Mutual Insurance Co. (1944), 323 Ill.App. 456, 56 N.E.2d 55) (neither being in point); or that “day” can mean, in the law’s contemplation, any part of a day (Greulich v. Monnin (1943), 142 Ohio St. 113, 50 N.E.2d 310; Moag v. State (1941, Sup. Ct. Ind.), 31 N.E.2d 629.) (It is somewhat disconcerting to note that both sides cite Moag as establishing diametrically opposite conclusions.) See also the annotation in 38 A.L.R.2d 768 regarding computation of time with respect to fractions of days.

It is our view of this case that both appellant and appellee here have concentrated too narrowly on a single word—the word “day”—in construing the language of the policy. The word “day”, appearing in the section of the policy entitled “Daily In-Hospital Indemnity”, does not stand by itself and should not be interpreted as though it did. Rather, it is part of a phrase, “each day of such confinement” appearing in the policy as part of the sentence “When as a result of injury or sickness * * * the Insured Person is confined within a hospital * * * the Company will pay the Daily In-Hospital Indemnity * * * for each day of such confinement * * The promise to pay is with reference to “each day of such confinement,” and we must interpret the phrase in a manner to give a common sense meaning to the whole contract.

While the contract is not truly one of indemnity, but is rather a contract to pay money without reference to hospital charges, nevertheless, it is fair to assume that the contract was not entered into in total disregard of what the hospital itself considered a day of confinement. It would be absurd to suppose that the insured believed at the time he took out the insurance that he would be paid for 4 days of confinement if he was only in the hospital 69 hours and was only charged for 3 days. We cannot believe that the appellant in interpreting the policy in this manner was in any way misled to his detriment.

On the other hand, the interpretation of the word “day” as meaning a full 24 hours is legalistic and would likewise produce unfair results.

We feel therefore impelled to examine the language of the contract from a somewhat broader viewpoint in order to give it reasonable meaning and effect.

In United States Trust Co. v. Jones (1953), 414 Ill. 265, 271, 111 N.E.2d 144, the court said, “In construing a written instrument, its letter should be controlled by its spirit and purpose, bearing in mind that the terms employed are servants and not masters of an intent, and are to be interpreted so as to subserve, and not to subvert, such intent. To this end courts are sometimes required to restrict the meaning of words.” We feel this language is particularly apt in considering the case before us. The word “day”, as reference to the few cases which have considered its meaning well demonstrates, has been variously interpreted according to the circumstances under consideration in such case and no amount of debate as to its meaning in the particular context under consideration here would resolve the question.

If considered in isolation the interpretation of “day” must inevitably be arbitrary, therefore unsatisfactory, not only to the parties but to the court. It is a word not susceptible of meaningful interpretation without reference to the context in which it is used. That is no doubt why the Random House Dictionary of the English Language gives not less than 15 different examples of its meaning in various contexts.

Accordingly, we refuse to construe the word in isolation as being an arbitrary period of time, either possibly 1 minute, as the appellant might contend or 24 hours, as the appellee contends. Instead, we give it meaning within the phrase, “for each day of such confinement” and therefore we interpret the policy as saying that it will pay for each period of confinement for which the particular hospital makes its customary daily charge. We do not believe this interpretation of the contract does any violence to the intention of the parties and it provides a rational basis for performance of the contract.

In the light of this holding, appellant received proper payment under the policy and has no more coming.

Since the appellant has no cause of action in his own right, the* class action must likewise fall. The judgment of the trial court is affirmed.

Judgment affirmed,

T. MORAN, P. J., and GUILD, J., concur,


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Rife, Defendant-Appellant.
    (No. 12086;
    Fourth District
    April 18, 1974.

      John F. McNichols, Public Defender, of Springfield, for appellant.
    Robert J. Bier, State’s Attorney, of Quincy, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Walter Rife was found guilty of burglary and theft after a jury trial. He was sentenced to 20 to 50 years in the penitentiary on the burglary count and here appeals from the dismissal of his post-conviction petition.

On June 24, 1969, an Adams County grand jury returned an indictment charging the defendant with committing a burglary and theft on April 16, 1969. The burglary indictment alleged that the defendant “committed the offense of Rurglary in that he, without authority, knowingly entered a vehicle of Adams Electrical Co-op, an Illinois corporation, with intent to commit therein a theft, in violation of the Criminal Code of 1961, Section 19—1.” On July 14, 1969, the defendant appeared before the court with counsel and pleaded not guilty. During September 1969 defendant’s counsel appeared at a series of hearings on several motions previously filed. The defendant failed to appear personally and defense counsel asked for a continuance, stating that he had been unable to contact the defendant since September 3, 1969. On September 22, 1969, the cause came on for trial before a jury, and when the defendant again failed to appear, his bond was ordered forfeited, and a bench warrant was issued for the defendant’s arrest after his brother and wife testified that they had no contact with the defendant during the month of September.

On April 6, 1970, the cause was transferred to the inactive calendar, and on May 15, 1970, the State’s Attorney filed a petition for a writ of habeas corpus ad prosequendum, directed to the warden of a Federal institution in Texas, where the defendant was incarcerated.

The defendant was present and testified in his own behalf at the trial held on June 11, 12, and 13, 1970, at the conclusion of which the jury returned verdicts of guilty to both burglary and theft. On June 13, 1970, judgment was entered on the guilty verdicts, a hearing in aggravation and mitigation was set for July 14, and the defendant was remanded to the custody of the Federal marshal to be held in tire Quincy, city jail. When the State’s Attorney and defense counsel appeared on July 14, 1970, the court took judicial notice that the defendant had absented himself from jail and continued the hearing in aggravation and mitigation to August 3, 1970. On August 3, 1970 the court heard the State’s application for judgment on bail bond and entered a judgment for the People in the amount of $6000 and costs against the defendant. Defendant did not appear on September 8, 1970, and on September 9 notice was sent to defendant to appear for sentencing. The defendant still did not appear on September 21, 1970, and at that time, after hearing defense counsel’s arguments in mitigation as to the circumstances of the instant offense as well as to the lack of violence or threat to personal safety shown by the defendant’s past record which was concededly extensive, the defendant was sentenced to 20 to 50 years on the burglary conviction.

Almost 1 year later, during August 1971, the defendant contacted the clerk of the Adams County circuit court by mail from the Federal penitentiary in Leavenworth, Kansas, requesting a complete record of all the proceedings in the case there for the purpose of his pro se appeal stating that he did not wish counsel to be appointed.

On January 31, 1972, the defendant filed a pro se post-conviction motion alleging that his constitutional right to a speedy trial had been denied in that the Adams County State’s Attorney had learned that the defendant was incarcerated in Texas shortly after the defendant’s arrest by Federal authorities after his indictment in Illinois in June 1969, and that the State’s Attorney could and should have promptly caused him to be brought back to Illinois for trial instead of waiting for approximately 1 year. On May 3, 1972, a hearing was held on the above motion at which the defendant was found to be indigent, counsel was appointed, and a hearing set for June 5, 1972. Following several continuances, on August 21, 1972, appointed counsel filed an amended petition for post-conviction relief, which refined the grounds alleged by the pro se petition: that the defendant was denied rights secured by both the Illinois and the Federal constitution by reason that he was arrested on April 16, 1969, but was not brought to trial on the charge until June ll, 1970, which was a period greater than the 120-day period provided by Illinois statute for bringing a defendant to trial; and further that on September 23, 1969, the defendant was arrested in the State of Colorado, and from that time on was available for trial, but was not brought to trial until June 11, 1970, a period also in excess of the 120-day statutory period. On August 22, 1972, the State’s Attorney filed a motion to dismiss the post-conviction motion on the grounds that the defendant did not move to dismiss the indictment prior to or during the trial, nor did he raise the issue in any post-trial motion, and therefore the defendant had waived any possible error as to his right to a trial within 120 days of incarceration. On September 1, 1972, the motion to dismiss defendant’s post-conviction petition was granted after arguments were heard.

Three issues are raised in this appeal from the dismissal of the amended post-conviction petition: (1) that the burglary indictment in the instant case was defective in that reference was made to the entry of a vehicle rather than a motor vehicle, and thus an essential element of the offense was not alleged; (2) the defendant’s right to be present at all stages of the proceedings against him was violated by his. being sentenced in absentia; and (3) the propriety of the 20- to 50-year sentence on the burglary conviction.

Section 111—3 of the Code of Criminal Procedure states that a charge shall be in writing and allege the commission of an offense by stating the name of the offense, citing the statutory provision alleged to have been violated, setting out the nature and elements of the offense, and specifying the date and county of the offense as well as possible. (Ill. Rev. Stat. 1969, ch. 38, par. 111—3(a).) The burglary indictment in the instant case set out the date and location at which the defendant was charged with committing the offense of burglary in that he, without authority, knowingly entered a vehicle of Adams Electrical Co-op with the intent to commit a theft in violation of the Criminal Code, section 19—1. The Criminal Code provides that: “A person commits burglary when without. authority he knowingly enters * * * a motor vehicle as defined in the Illinois Motor Vehicle Law * * *.” (Ill. Rev. Stat. 1969, ch. 38, par. 19—1(a).) The Motor Vehicle Code defines vehicles which are self-propelled, but not operated on rails, as motor vehicles. (Ill. Rev. Stat. 1969, ch. 95½, par. 1—146.) Elsewhere in the statutes, vehicles are said to be every device in, upon, or by which persons or property may be transported or drawn upon a highway, except those moved by human power or operated exclusively on stationary rails or tracks. (Ill. Rev. Stat. 1969, ch. 95½, par. 1—217.) Therefore, the defendant contends that the indictment in the instant case was fatally defective by failing to allege an essential element of the offense of burglary in that “vehicles” is a broader term than “motor vehicles” which the burglary statute specifically includes as an object capable of being burglarized.

An indictment charging an offense defined by statute should be as fully descriptive of the offense as the language of the statute, and should allege all the substantial elements of the offense. (People v. Martin, 62 Ill.App.2d 97, 210 N.E.2d 587.) The charge need not contain the precise statutory language, and where the statute clearly defines the offense an indictment charging the offense substantially in the language of the statute is sufficient. (People v. Donaldson, 341 Ill. 369, 173 N.E. 357.) On the other hand, an indictment must allege all the facts necessary to constitute the crime charge (People v. Vraniak, 5 Ill.2d 384, 125 N.E.2d 513), and likewise an indictment alleging facts not constituting the offense is insufficient. People v. Barnes, 314 Ill. 140, 145 N.E. 391.

The purpose of an indictment is to apprise a defendant of the exact crime with which he is charged, so that he may prepare his defense and plead the judgment in bar of a subsequent prosecution for the same offense. (People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897.) The defendant does not seriously contend that the indictment here failed to fulfill the above requirements, but rather that since the burglary statute refers to motor vehicles as defined in the Motor Vehicle Code as one of the objects which, if entered without authority with the specified intent, the use of the word vehicle failed to charge the offense of burglary at all—there being a definition of that broader term elsewhere in the statute. A void indictment confers no jurisdiction on the trial court. People ex rel. Kelley v. Frye, 41 Ill.2d 287, 242 N.E.2d 261.

The defendant cites several cases involving driving while intoxicated, where the indictment omitted the words “while under the influence of alcohol.” In such cases the intoxicated condition of the accused is the essence of the offense, so failing to charge it is distinguishable from the instant case where the state of mind and every action of the defendant is charged, the alleged defect being to the specificity of the object entered. Most of the cases finding a burglary indictment defective, as the defendant seeks here, are those where entry of a building which is more or less well identified, is charged with failure to allege ownership or occupancy of another. That defect arguably prejudices the accused in two ways: by not precisely identifying the building involved since several buildings may have a common name thereby hindering preparation of a defense and pleading in bar, and also it is necessary for the offense of burglary that the defendant not have a right to be in the building involved so the owner or occupant should be alleged as an element of the offense to show a lack of possessory authority in the accused. The defect in the instant case is much more formal. The owner of the vehicle and its location are alleged and the defendant shows no prejudice by the omission of the word “motor”. The reference to the named statute clearly showed that the defendant was being charged with a burglary of a vehicle within paragraph 19—1, which specifically refers to motor vehicle as defined in chapter 95y2. Therefore, under all of the circumstances, this charge was sufficient to serve the pmposes of an indictment and the defendant shows no prejudice from its alleged flaw. (People v. Viar, 131 Ill.App.2d 983, 268 N.E.2d 872.) Whether these objectives are met must be determined by the substance of the charge rather than by the technicalities of the language. People v. Dzielski, 130 Ill.App.2d 581, 264 N.E.2d 426.

Having escaped from the Quincy jail on June 30, 1970, following his conviction on June 13, 1970, the defendant was not present when sentence was entered on September 21, 1970. This issue was raised for the first time in a supplemental brief filed on this appeal of the dismissal of the amended post-conviction petition. Especially under these circumstances, where sentencing in absentia contributed to the lack of a direct appeal, we agree that whether the defendant validly waived his right to be present at sentencing is a constitutional question involving fundamental fairness which, pursuant to Supreme Court Rule 615, should be considered by this court. Ill. Rev. Stat. 1969, ch. 110A, par. 615; People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663.

The Illinois Constitution expressly assures every person accused of a crime the right to be personally present at every stage of the trial, from the arraignment to the final sentence. (Illinois Constitution 1970, art. I, sec. 8.) The defendant has the right to be present at every stage and a right to participate in his own defense. (People v. Kirilenko, 1 Ill.2d 90, 115 N.E.2d 297.) The right to be present at all stages of the trial may be waived (People v. Allen, 37 Ill.2d 167, 226 N.E.2d 1), and unless voluntarily waived by the defendant himself, not only does he have the right to be present, but his presence is essential. People v. Davis, 39 Ill.2d 325, 235 N.E.2d 634.

However, a defendant may not prevent his trial by voluntarily absenting himself therefrom, and the defendant in a criminal case has a duty to present himself when his case is reached on the Jury trial calendar. If a defendant voluntarily absents himself from the courtroom after the trial begins, it is uniformly held to be a waiver of his right to be present, leaving the court free to proceed. (People v. Steenbergen, 31 Ill.2d 615, 203 N.E.2d 404.) In People v. Davis, the court distinguished Steenbergen by noting that in that case the defendant was present when the trial commenced and then later absented himself, but “[w]e have not, however, been referred to, nor has our research revealed, a single case in which a reviewing court has sustained the felony conviction of a defendant whose entire trial occurred in his absence.” 39 Ill.2d at 330.

The supreme court has made it clear that before a waiver of the right to be present at a proceeding against him will be found by the mere absence of an accused, it must be clear that such absence is voluntary and willful. (People v. Smith, 6 Ill.2d 414, 129 N.E.2d 164.) The supreme court recognized that the defendant’s constitutional right to be present at every step taken in his case may be waived, and where he voluntarily absents himself from the courtroom at the moment a verdict is rendered, or runs away from the courtroom after he learns of the verdict and refuses to return for sentencing or further proceedings, he is deemed to have made such a waiver. However, in Smith the defendant had been present at all times during his trial until the State rested, then several continuances were had, after which a final hearing was held at which the defendant was not present. In the absence of the defendant the court heard testimony of the witnesses, found the defendant guilty, and sentenced him in absentia. The supreme court held that such a failure to appear for sentencing, in the absence of some explanation, would not be presumed voluntary and willful and where a record fails to disclose the reasons for defendant’s absence, he will not be deemed to have waived his right to be present.

The defendant makes a well-documented and appealing argument for the proposition that it is a fundamental element of our criminal system for the defendant to be present when sentence is imposed and that one’s absence because of escape, although voluntary, is not an intentional relinquishment of a known right such as to be a valid waiver of that right. This is buttressed by the argument that the State loses nothing by postponing sentencing since the conviction has been entered, and the defendant would not begin serving his sentence until recaptured in any event. The defendant extensively reviews the rules in various states and the Federal jurisdiction where sentence may not be imposed when the defendant is absent for any reason including his escape from custody. However, those jurisdictions noted have legislative requirements for presence at sentencing, whereas in IUinois the long-standing case law to the effect that the defendant waives his constitutional right to be present at sentencing by running away after he learns of the verdict has never been altered by the legislature. (People v. Weinstein, 298 Ill. 264, 131 N.E. 631.) In fact a statute enacted in 1971 provides that:

“In any criminal trial, where a defendant after his trial commences willfully absents himself from court for a period of two successive court days, the court shall proceed with the trial. The absence of such defendant shall not operate as a bar to concluding the trial, to a judgment of conviction resulting therefrom, or to a final disposition of the trial in favor of the defendant.” (Ill. Rev. Stat. 1971, ch. 38, par. 115—4.1, effective September 2, 1971.)

In the instant case the 42-year-old defendant was present during his trial and testified in his own behalf and his subsequent voluntary escape from the Quincy municipal jail constituted a waiver of his right to be present at sentencing.

As a corollary to this issue, the defendant contends that by sentencing him in absentia the court also prevented him from having an effective hearing in aggravation and mitigation, and also in effect, denied him of the right to appeal. However, section 1—7 of the Criminal Code (now section 1005—4—1), providing for a pre-sentence hearing in aggravation and mitigation, is not constitutionally required; does not confer constitutional rights and cannot be a basis for relief under the Post-Conviction Hearing Act. (People v. Wade, 47 Ill.2d 38, 264 N.E.2d 207.) Likewise, the right to appeal in criminal cases is not per se of constitutional dimension. (People v. Baze, 43 Ill.2d 298, 253 N.E.2d 392.) That case went on to note that recent decisions of the United States Supreme Court do reflect a concern with providing any defendant who so desires a full appellate review of his conviction and exceptional circumstances may warrant inquiry into whether the defendant was improperly denied a right to appeal. People v. Brown, 39 Ill.2d 307, 235 N.E.2d 562.

At the time defendant was sentenced to 20 to 50 years on the burglary conviction, the trial judge noted the defendant’s extensive criminal record extending back to 1944 and commented on the defendant’s escape following the conviction resulting in his absence at that time. Defendants counsel in mitigation argued that although the defendant had a long criminal record, none of those offenses nor the instant burglary involved any personal injuries or violence. At the time of sentencing the Criminal Code provided that a person convicted of burglary could be imprisoned for any indeterminate term with a minimum of not less than 1 year. (Ill. Rev. Stat. 1969, ch. 38, par. 19—1(b).) The defendant argues that this court should reduce his sentence to be in conformance with the new Unified Code of Corrections. Burglary is now a Class 2 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 19—1(b)) for which the sentence may be from 1 to 20 years (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—8—1(b)(3)) with the minimum no greater than one-third the maximum. (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005—8—1 (c)(3).) The Unified Code of Corrections provides that if an offense has not reached the sentencing stage or a final adjudication, the new penalty should apply. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008—2— 4.) However, a proceeding under the Post-Conviction Hearing Act is not an appeal, but is a new proceeding providing an original and independent remedy to consider constitutional claims which have not already been adjudicated. (People v. Vail, 46 Ill.2d 589, 264 N.E.2d 201.) This court may not modify sentences which are in excess of the new Unified Code of Corrections on an appeal from the denial of a post-conviction petition. People v. Nutt, 13 Ill.App.3d 60, 299 N.E.2d 792.

It appears that the only way this court could act on the sentence issue would be to find that the 20- to-50-year sentence imposed was so excessive as to be cruel and unusual punishment for the offense of burglary and perhaps in conflict with the 1970 constitutional mandate (art. I, sec. 11) that sentences be set with the objective of restoring the offender to useful citizenship as well as according to the seriousness of the offense, thus raising a constitutional question requiring a post-conviction hearing. However, where the sentence imposed is within the statutory limits prescribed for the offense of which the defendant is convicted, the issue of sentence excessiveness does not involve a constitutional question. People v. Sluder, 40 Ill.2d 559, 240 N.E.2d 666.

Therefore the conviction of burglary and the sentence imposed thereon will be affirmed.

Affirmed.

SMITH, P. J., and KUNCE, J., concur.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Manns, Defendant-Appellant.
    (No. 73-309;
    Fifth District
    February 21, 1974.

      Rehearing denied May 15, 1974.

    D. A. McGrady, of McGrady, Madden and McGrady, of Gillespie, for appellant
    Nicholas G. Byron, State’s Attorney, of Edwardsville (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The appellant was convicted of theft exceeding $150 in 1969 in the Circuit Court of Madison County. That conviction was affirmed by this court on appeal. (People v. Manns, 1 Ill.App.3d 871, 274 N.E.2d 194.) On January 11, 1973, the appellant filed a petition in the circuit court seeking relief pursuant to Ill. Rev. Stat., ch. 110, sec. 72. The section 72 petition was denied by the trial judge, who had participated in the original trial.

The appellant subsequently asked the circuit court to modify his sentence. The appellant had been placed upon three years probation conditioned upon paying a fine of $500 and serving a term of 90 days at the State Farm. The Unified Code of Corrections became effective on January 1, 1973, and the Code prohibits, as a condition of a sentence of probation, a sentence to a period of imprisonment (Ill. Rev. Stat., ch. 38, sec. 1005—6—3(d)). An exception to that rule is that a sentencing court may order periodic imprisonment as a condition of probation. The circuit court, attempting to render the appellant’s sentence consistent with the new Code, modified the sentence so that the appellant was to serve weekends in the Madison County Jail for one year. The modification resulted in a sentence of incarceration of 104 days in the county jail, whereas the original order resulted in the 90-day period of incarceration at the State Farm. The three-year period of probation and the $500 fine remained a part of the penalty imposed.

The appellant seeks relief from both the judgment denying section 72 relief and the order modifying his sentence.

Ill. Rev. Stat., ch. 110, sec. 72, provides:

“The petition must be filed not later than two years after the entry of the order, judgment or decree. Time during which person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of two years.”

Under the Unified Code of Corrections, section 5—1—12, judgment is defined as “an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty, it includes sentence pronounced by the court”. The motion filed under section 72 must be filed within two years from the entry of judgment. (People v. Colletti, 48 Ill.2d 135.) The appellant failed to file his section 72 petition within two years of the final judgment convicting him of theft. He has not alleged that he was under a legal disability or duress or that the ground for relief has been fraudulently concealed. The appellant’s petition, therefore, was not timely, and we affirm the circuit court’s denial of that petition.

The circuit court did have jurisdiction to modify the conditions of probation pursuant to Ill. Rev. Stat., ch. 38, sec. 1005—6—4(f). That provision, however, requires that a hearing be held before probation conditions are modified and the circuit court failed to hold such a hearing. We therefore vacate the order modifying the appellant’s sentence and remand the cause with directions that a hearing be held in the Circuit Court of Madison County to determine whether the probation conditions should be modified.

Affirmed in part, reversed in part and remanded with directions.

EBERSPACHER, P. J., and CREBS, J., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John E. Thompson, Defendant-Appellant.
    (No. 71-294;
    Fifth District
    March 11, 1974.

      Modified upon denial of rehearing April 15, 1974.

      Robert E. Farrell, Deputy Defender, of Mt. Vernon (Richard E. Cunningham, Assistant Appellate Defender, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (James W. Jerz and Martin P. Moltz, of Model District State’s Attorneys Office, of counsel), for the People.
   REVISED OPINION UPON DENIAL OF PETITION FOR REHEARING.

Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, John E. Thompson, was charged by indictment with the offense of armed robbery. The case was tried in the St. Clair County Circuit Court to a jury which returned a verdict of guilty to the charge of armed robbery. The defendant was sentenced to a term of from 2 to 10 years in the Illinois State penitentiary system after denial of the defendant’s post-trial motions.

The defendant brings four issues for review by the court: (1) That the judgment of conviction is void because the indictment failed to apprise the defendant of the nature and elements of the offense charged; (2) that the defendant was prejudiced by the admission into evidence of a statement allegedly made by the defendant at the time of his arrest; (3) that the State failed to prove the defendant guilty beyond a reasonable doubt; and (4) that the defendant was prejudiced by inflammatory closing arguments of the State.

Due to the conclusion that we reach, we find it necessary to pass only upon the first three issues.

The indictment states in the pertinent part:

“* * * on the 14th day of November, 1970, in St. Clair County, John E. Thompson committed the offense of armed robbery in that he, by threatening the imminent use of force and while armed with a dangerous weapon took an indeterminate amount of money from the person or presence of Willie J. Dickerson.”

The defendant contends that it fails to properly charge an offense. The defendant asserts that an indictment for armed robbery can only be valid if the specific means used are specified in defining the proscribed act. The defendant cites in support of his contention the cases of People v. Coleman, 49 Ill.2d 565, 276 N.E.2d 721, and People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897. A reading of these cases does not convince us that the indictment is inadequate. Indeed the Grieco case states:

“* * * well established in this area of the law is the principle that an indictment phrased in the language of the statute creating the crime is sufficiently certain where the words of the statute so particularize the offense as by their use alone to notify the accused of the precise offense charged against him.” 44 Ill.2d at 409, 255 N.E.2d at 899.

The defendant asserts that use of the words “dangerous weapon” does not fully set forth the elements of the crime sufficiently to allow him to fully prepare his defense, contending that “dangerous weapon” in the indictment could mean anything from fountain pen to hand grenade.

The law of Illinois is clear that an indictment formed in the language of the statute is sufficient to apprise a defendant of the nature of the charge against him. As stated in our recent supreme court case, People v. Hayes, 52 Ill.2d 170, 172, 287 N.E.2d 465, discussing the sufficiency of an indictment for armed robbery: “The indictment was phrased in terms of the statute and sufficiently informed defendant of the charge. Therefore, we find the defendant’s contention without merit.”

The defendant next urges that he was prejudiced by the admission into evidence of a statement allegedly made by him at the time of his arrest. It appears from the record that the defendant filed a series of pre-trial motions, including motion to produce confession, motion to suppress confession and motion for bill of particulars. The State responded by filing a bill of particulars, which stated in part:

“2. The defendant failed to make a written or oral statement regarding his participation in the crime for which he is charged.”

During trial and during the State’s case a conference was held in chambers at which time the State’s Attorney informed the court that the State had an oral statement of the defendant it would like to offer in evidence. Defense counsel objected to the admission of the alleged statement and moved that it be suppressed. The court denied the renewed motion to suppress and ruled that the statement would be allowed into evidence for the limited purpose of impeachment if the defendant chose to testify. After the defendant rested his case, which included testimony of the defendant, the State presented a rebuttal witness who testified as to contents of the oral statement of the defendant, which was exculpatory in nature but inconsistent with his testimony at trial. We are of the opinion that the court committed error in this regard.

Section 114—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., ch. 38, sec. 114—10) provides as follows:

“114—10. Motion to Produce Confession, (a) On motion of a defendant in any criminal case made prior to trial the court shall order the State to furnish the defendant with a copy of any written confession made to any law enforcement officer of this State or any other State and a list of the witnesses to its making and acknowledgment. If tire defendant has made an oral confession a list of the witnesses to its making shall be furnished.
(b) The list of witnesses may upon notice and motion be amended by the State prior to trial.
(c) No such confession shall be received in evidence which has not been furnished in compliance with subsection (a) of this Section unless the court is satisfied that the prosecutor was unaware of the existence of such confession prior to trial and that he could not have become aware of such in the exercise of due diligence.”

Our supreme court in People v. Costa, 38 Ill.2d 178, 230 N.E.2d 871, has construed the word “confession” to include both inculpatory and exculpatory statements. A clear reading of section 114—10 in light of the construction of section 114—11 in People v. Costa precludes the reception into evidence of the statement for any purpose unless the court is satisfied that the prosecutor was unaware of the existence of the statement. There is no indication in the record before us that the State’s Attorney was unaware of the statement or could not have become aware of it in the exercise of due diligence.

The State’s reliance on Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643, and People v. Byers, 50 Ill.2d 210, 278 N.E.2d 65, is without merit. In those cases the issue was whether an alleged violation of Miranda rights rendered a statement inadmissible for impeachment purposes. Here the issue is the applicability of the Code of Criminal Procedure of 1963.

With reference to the contention that defendant was not proven guilty beyond a reasonable doubt, we would point out that the lack of victim identification is not fatal to the State’s case, but is another fact to be weighed by the jury in their deliberations. (People v. Nicholson, 55 Ill.App.2d 361, 204 N.E.2d 482; People v. Oswald, 26 Ill.2d 567, 187 N.E.2d 685.) As stated in People v. Johnson, 12 Ill.App.3d 326, 330, 297 N.E.2d 601,

“A reviewing court will not disturb a guilty verdict on grounds of insufficient evidence unless it is so unsatisfactory, improbable or unreasonable and so palpably contrary to the evidence as to justify the court in entertaining a reasonable doubt of the defendants’ guilt.”

For the foregoing reasons this cause is reversed and remanded to the Circuit Court of St. Clair County for a new trial.

G. MORAN, P. J., and CREBS, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John H. Greer, Jr., Defendant-Appellant.
    (No. 72-351;
    Fifth District
    April 4, 1974.
    EBERSPACHER, J., took no part.
   PER CURIAM.

Robert E. Farrell, Deputy Defender, of Mt. Vernon (Richard E. Cunningham, Assistant Appellate Defender, and Anthony J. Coultas, Senior Law Student, of counsel), for appellant.

Michael J. Henshaw, State’s Attorney, of Harrisburg, for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Wilson, Defendant-Appellant.
    (No. 73-27;
    Fifth District
    April 4, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael C. Dunston, Senior Law Student, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Clyde L. Kuehn, Assistant State’s Attorney, of counsel), for the People.
   Opinion by Mr. PRESIDING JUSTICE G. MORAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Delmar Wiseman et al., Defendants-Appellants.
    (No. 73-59;
    Fifth District
    April 4, 1974.
    EBERSPACHER, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Richard E. Cunningham, Assistant Appellate Defender, and Bruce Stratton, Administrantive Director, of counsel), for appellants.
    Robert Lee Broverman, State’s Attorney, of Shelbyville, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alfred Triplett, Defendant-Appellant.
    (No. 72-321;
    Fifth District
    April 8, 1974.

      Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael J. Rosborough, Assistant Appellate Defender, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Donald J. Dahlmann, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

Appellant was convicted upon his guilty plea of two counts of armed robbery in St. Clair County and was sentenced from 5 to 15 years on each count, sentences to run concurrently. The pleas and sentence were pursuant to plea negotiations. The appeal is based on alleged violations of Supreme Court Rule 402 (Ill. Rev. Stat., ch. 110A, sec. 402).

The record indicates that in admonishing the defendant, the court stated:

“THE COURT: * * * First, you are charged with the crime of armed robbery. This carries a penalty from five up to any number of years. Do you understand that?
DEFENDANT TRIPLETT: Yes, sir.”

The above statement was the only admonition given as to the nature of the charge (Rule 402(a)(1)), and of the sentence available (Rule 402 (a)(2)). The record is void of any fact that the defendant had read the indictment or that it had been read to him. This court and other courts have clearly held that an admonition which does no more than state the name of the charge does not comply with Supreme Court Rule 402(a)(1). People v. Hudson, 7 Ill.App.3d 800; People v. Ingeneri, 7 Ill.App.3d 809; People v. Krantz, 12 Ill.App.3d 38; People v. Bauswell, 12 Ill.App.3d 35; People v. Green, 12 Ill.App.3d 418.

It is difficult to determine whether or not appellant’s answer to this admonition stated above prior to his plea of guilty being accepted by the court was both to the nature of the charge and the minimum and maximum sentence prescribed by law, or just to the available spread of sentences. Supreme Court Rules 402(a)(1) and 402(a)(2) are separate sub-paragraphs and should be so treated in asking questions and admonishing the defendant.

The following statement was made in the record by the prosecution at the time the appellant entered his plea:

“That the defendant, Alfred Triplett, had a minor automobile collision with an automobile in which were riding Geraldine Jenkins and Greta Jenkins. Subsequent to the accident in the stopping of both cars, Mr. Triplett pulled a revolver and took sums of money from each of the individuals.”

The judge addressed the appellant personally after the above statement was made. However, at no time did the judge “read or paraphrase the essential allegations of the indictment or explain to the defendant the acts (and the accompanying state of mind, where applicable) which the State alleges him to have committed”. This quoted language is from People v. Green, 12 Ill.App.3d 418.

The factual basis for the plea as stated by the prosecution falls far short of supplying the missing ingredients for a compliance with the rule that the defendant must understand “the nature of the charge”. The complete record does not demonstrate any basis to determine that the defendant understood the nature of the charge.

The defendant contends that there were other errors in the proceedings when his guilty plea was accepted by the court. However, it is not necessary to discuss these points, as non-compliance with Supreme Court Rule 402(a)(1) is sufficient to reverse this case. Accordingly, the judgment of the trial court of St. Clair County is reversed and the cause is remanded with directions to allow the defendant to plead anew.

Reversed and remanded with directions.

G. MORAN, P. J., and CREBS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Shields, Defendant-Appellant.
    (No. 73-137;
    Fifth District
    April 5, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael Q. Jones, Senior Law Student, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (John M. Goodwin, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of St. Clair County in which defendant pleaded guilty to the offense of burglary and was sentenced to serve a minimum of 2 years and a maximum of 6 years in the penitentiary.

Defendant contends that the age disparity between males and females for purposes of determining status as juveniles violates his constitutional right to equal protection of the law. Next, defendant contends that die State failed to fulfill its promise to stand mute on defendant’s application for probation. And finally, defendant contends that the sentence imposed was excessive.

At the time of the alleged offense the defendant was a 17-year-old male. The then existing Juvenile Court Act provided that, with certain exceptions, no boy under 17 years of age or girl under 18 years of age could be prosecuted under the criminal laws of this state. (Ill. Rev. Stat., ch. 37, sec. 702—7.) The defendant contends that, because the statute provided 17-year-old girls with a procedural protection not given to 17-year-old boys, he was denied equal protection of the law. The defendant further alleges that the above provision is in violation of section 18, article I of the 1970 Illinois Constitution which became effective on July 1, 1971, and which provides that equal protection of the laws shall not be denied or abridged on account of sex.

This issue has previously been answered by the Illinois Supreme Court in People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342. That case differs from the instant case only in that the prosecution in McCalvin was completed before the effective date of the Illinois Constitution. That Court held equal protection was not violated by the aforementioned provision of the Juvenile Court Act, and adhered to its holding in People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656. For additional discussion of this issue, see People v. Jackson, - Ill.App.3d -, - N.E.2d -; People v. Schanuel,-Ill.App.3d-,-N.E.2d-; and People v. Douglas,-Ill.App.3d-,-N.E.2d-, which were filed by this court on January 23, 1974.

We now turn to the contention of defendant that the State failed to fulfill its promise to stand mute on defendant’s application for probation when it cross-examined defendant’s three witnesses at the pre-sentence hearing.

As authority for this contention, defendant cites People v. Riggs (1972), 4 Ill.App.3d 48, 280 N.E.2d 242. In that case, the State’s Attorney, in accordance with a representation made to defendant who pleaded guilty, recommended probation at time of entry of plea but opposed probation at the time of sentencing. This court held that, due to circumstances therein present, probation should have been granted.

A review of cases which have held that a plea of guilty induced by unfulfilled promises loses its voluntary nature and is void reveals that such unfulfilled promises were affirmative in nature. (People v. Pier, 51 Ill.2d 96, 281 N.E.2d 289; People v. Spicer, 47 Ill.2d 114, 264 N.E.2d 181; People v. Mitchell, 46 Ill.2d 133, 262 N.E.2d 915; People v. Washington, 38 Ill.2d 446, 232 N.E.2d 738; People v. Story, 15 Ill.App.3d 94, 303 N.E. 2d 504; People v. Caskey, 4 Ill.App.3d 920, 282 N.E.2d 250; and People v. Riggs, 4 Ill.App.3d 48, 280 N.E.2d 242.) All of the aforementioned cases dealt with situations where the State’s Attorney either promised to recommend probation or promised a reduced sentence.

In the instant case, the promise by the State was merely to “make no recommendation as to probation one way or the other.” Defendant made an application for probation and the court referred the matter to the probation officer for a probation and presentencing report. At the probation hearing defendant called a probation officer who testified that he, defendant, had previously completed a probationary period for another offense and, commenting on his future, stated that he felt there was a necessity for defendant to get back to school to avoid some problems in getting back to society. The witness was neither asked for nor gave a recommendation for or against probation. The cross-examination was within the scope of the direct and appears to be a fair attempt to explore the situation for the benefit of the court. The defendant testified on his own behalf as to his scholastic record, employment record and successful completion of a period of probation while a juvenile. The cross-examination of him included inquiry as to the circumstances which occasioned defendant’s absence from school on the day of the offense to which he had pled guilty. Appellant argues that this cross-examination insinuated that defendant was not a suitable subject for probation. We consider it proper under the circumstances, as an attempt to present information which the court should properly consider in determining whether probation should be granted. We do not consider that the State’s promise to stand mute was violated.

In the hearing the prosecutor made no recommendation, preferred no witnesses in aggravation and presented no extrinsic evidence whatsoever. The only action by the State’s Attorney was cross-examination of defendant’s witnesses, none of which appears particularly vigorous or goes into areas not covered by direct examination. Once the defendant chose to proffer witnesses to support his probation petition and in mitigation, the State was at liberty to cross-examine such witnesses notwithstanding its agreement to “make no recommendation as to probation one way or the other.” An agreement to abstain from all cross-examination will not be inferred from a promise to “make no recommendation as to probation one way or the other.”

Defendant finally contends that the sentence imposed was excessive. The record discloses that defendant was 17 years old at the time of the offense, became 18 while awaiting final disposition of his case, and is now 19, had one prior offense as a juvenile for which he had been placed on probation (and had successfully completed it), had been enrolled in high school until his expulsion for absenteeism due to incarceration for the present offense, and had been periodically employed while attending school. Although the probation officer did not recommend probation he did indicate that the continuance of defendant’s education would be in his, defendant’s, best interest. On oral argument, the State conceded that this appeared to be a minimum-sentence case.

We consider that this may be an ideal case for application of the Unified Code of Corrections provisions embraced in article 7 of the Code to enable defendant to complete his education and seek employment with the hope of rehabilitation. For consideration of the applicability of that article we remand this cause for such determination in the trial court, with directions that if periodic imprisonment is not ordered that the sentence be modified to a minimum of 1 year and a maximum of 3 years and a corrected mittimus issued.

Affirmed and remanded with directions.

G. MORAN, P. J., and CREBS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Holton, Defendant-Appellant.
    (No. 73-120;
    Fifth District
    April 5, 1974.

      Robert F. Godfrey, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (C. H. Stegmeyer, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of St. Clair County revoking appellant’s probation and imposing a sentence of 1 to 3 years’ imprisonment Appellant, Eugene Holton, pleaded guilty to robbery and was placed on probation for 3 years on September 10, 1969 under conditions of section 117—2(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 117—2(a)), including the provision against further violation of law. Two years and two months later a petition to revoke probation was filed, alleging commission of battery on two separate occasions, oral threats on the lives of four separate individuals, and one instance of trespass. A warrant was issued for the arrest of defendant for probation violation on November 15, 1971. A supplemental petition to revoke probation was filed subsequently, alleging, in addition to the above, an oral threat on the life of another individual and the commission of another battery. A protracted hearing was conducted at which facts relating to the above incidents were presented.

In People v. Dotson, 111 Ill.App.2d 306, 250 N.E.2d 174, we described the guidelines for the revocation procedure.

Here a contention is that the State failed to prove by a preponderance of the evidence that the defendant was guilty of violating his probation. Numerous witnesses testified concerning the incidents alleged in the petition to revoke, both for the State and for appellant, the testimony in many instances was in conflict. In People v. Crowell, 53 Ill.2d 447, 451, 292 N.E.2d 721, 723, affirming this court, the supreme court said:

“[T]he finding of a violation of probation will not be disturbed simply because of a conflict in evidence. The trial judge who heard the evidence was in a better position to weigh the testimony of the witnesses than is a reviewing court, and we will substitute our judgment for that of the trial court only when the testimony is contrary to the manifest weight of the evidence and not where the evidence is merely conflicting. People v. Guido (1962), 25 Ill.2d 204, 208, 184 N.E.2d 858.”

In People v. Shadowens, 10 Ill.App.3d 450, 452, 294 N.E.2d 107, 109, we said:

“The credibility of witnesses and the weight to be given their evidence are matters for the finders of fact and should not be disturbed except where the evidence is so unsatisfactory as not to sustain the burden of proof. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385)."

Our review of this record discloses that the evidence is satisfactory to sustain the burden of proof required on some of the alleged violations. We therefore affirm the revocation.

The next contention is that the sentence is excessive. Under the statute in effect at the time of sentencing (Ill. Rev. Stat. 1971, ch. 38, par. 18—1), a minimum of 1 and a maximum of 20 years was provided. Under section 5—8—1(b)(3) of the Unified Code of Corrections which is applicable (People v. Shadowens, supra), a 1-to-20-year sentence is likewise provided. Here the minimum sentence applicable was imposed. We find no abuse of discretion in imposition of the sentence.

Defendant is entitled to credit on his sentence for the time he was on probation, computed from the date of the order placing him on probation to the date that a warrant was issued for his arrest on the petitiou for revocation. Section 5—6—4(a)(h) of the Unified Code of Corrections; People v. Burton, 14 Ill.App.3d 1096, 303 N.E.2d 16; People v. Blake, 15 Ill.App.3d 39, 303 N.E.2d 419.

We therefore affirm.

Judgment -affirmed.

G. MORAN, P. J., and CREBS, J., concur.