author: Mr. JUSTICE TRAPP

text:
    Charleston National Bank, Adm’r of the Estate of Rex L. Brandenburg, Plaintiff-Appellant, v. International Harvester Company, Defendant-Appellee.
    (No. 12110;
    Fourth District
    September 5, 1974.

      Rehearing denied November 4, 1974.

      John E. Norton, of Belleville, and Henry E. Kramer, of Brainard, Bower & Kramer, of Charleston (Edward J. Kionka, of counsel), for appellant.
    Jack E. Horsley, Richard F. Record, Jr., and Stephen L. Com, of Craig & Craig, of Mattoon (Paul C. Nelson, of Law Department, International Harvester Co., of Chicago, of counsel), for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff, as administrator, sued for wrongful death. The trial court directed a verdict for defendant upon a count alleging product or manufacturer’s liability. This appeal follows a finding as provided in Supreme Court Rule 304.

Plaintiff’s decedent fell from the operating station of a large earth-moving vehicle known as a payscraper. The evidence is that the vehicle weighed approximately 13 tons, and that the driver’s station was about. 8 feet above ground level. The driving platform was substantially the width of a single seat. The allegations specified that the machine was: unreasonably dangerous in that the drivers seat latching device was inadequate and unsuited for its intended purpose of holding the driver’s seat in a stable position; that the operator’s station was not properly and safely designed to prevent the operator from falling from the machine, and that the machine was not equipped with adequate instructions and warnings that the driver should not stand up while operating the machine. It is alleged that such defects were the proximate cause of death when decedent was thrown or fell from the machine on to the ground and was run over by it.

A directed verdict requires that the trial court find that the evidence, in its aspects most favorable to the plaintiff, so overwhelmingly favors defendant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.

On the morning of October 30, 1968, decedent was operating the pay-scraper to move dirt from tire east to the west end of the job. After emptying a load he would return eastward along a recently completed concrete highway to the starting point for another cycle of moving dirt from a nearby ditch. The evidence conflicts as to whether several windrows of dirt, some 9 inches high, had been placed across the highway to slow traffic and that such were located southwest of where decedent was found.

At about 11 A.M., decedent was found face down on the pavement with his head crushed. The machine continued under its own power some 150 feet until it had veered into a bank of earth and halted with the engine running. There was blood on the inside of the right rear wheel. Decedent’s head was the only portion of his body that was injured. The body was found in the right hand lane of the paved road with the head approximately 3 feet from the edge of the pavement and at an angle to the southwest. The coroner testified to his conclusion that decedent’s head was squeezed beween the inside of the tire and the body of the machine.

Decedent had operated the machine throughout the morning until his death at about 11 A.M. At times he had been observed operating the machine while standing. There is testimony that standing is a dangerous practice and that defendant had been warned about it by his employer. There is also testimony concerning the practice of the operators of such machines to stand while driving because of perspiration and for respite from the jolting.

Decedent was observed some 30 to 35 seconds before his death, seated and driving the machine eastward along the highway at some 8 to 10 miles per hour. There is testimony that empty machines travelling upon a highway might bounce a great deal.

• All the evidence on the issue of unreasonably dangerous condition concerns the driver’s compartment on the payscraper. The suspension system of the driver’s seat was designed for a farm tractor and patented by defendant’s engineers. The component parts of the seat are manufactured by the Bostrom Company, but sold by defendant without change as official International Harvester parts to and through defendant’s dealers. The seat was designed to enable an operator of farm equipment to adjust the height of the seat rearward or frontward relative to a steering wheel or a farm tractor. The seat is adjustable to five positions, encompassing a total movement of 5 inches front to back and 3 inches upward from the lowest and most forward position to the highest and most rearward position. Such adjustability is not necessary on the payscraper. The seat was secured in one of the five positions by means of two latches, or in engineering terms, pawls. The lower pawl, when locked in position, prevented the seat from moving to the rearward positions. The seat was spring mounted, so that if the lower pawl was disengaged or broken, the seat would spring back from the position to which it had been adjusted to the most rearward position. Thus, if the lower pawl was disengaged or broken, while the seat was in its forwardmost position, the seat would spring back 5 inches and up 3 inches; if the seat were already adjusted to its rearwardmost position, a broken pawl would result in no change of position of the seat. The driver’s weight, however, is sufficient to depress the springs, so that if the lower latch or pawl were broken, the seat would not come up if the driver was sitting quietly in the veh'cle at rest. It was customary to adjust the seat to be in the lowest position unless one was extremely tall, in which case the seat might be adjusted to tire second lowest position. The seat was also designed to tilt forward.

There is expert testimony to the effect that the seat was defectively designed, both because of the dual cam seat latching arrangement and because the light spring clip intended to prevent the seat from tilting forward was inadequate for its purpose since a sudden movement from breakage of either cam would throw the seat back and allow it to tilt forward.

Mechanical tests show that the metal in the pawl was porous and without sufficient tensile strength to sustain its potential load. However, if the vehicle were moving on a very smooth pavement, with constant speed, and the driver sitting quietly, there are few possibilities that the spring clip itself, rather than the pawl, could come loose. If one were sitting on the machine, and the pawl broke, the seat would raise and go to the rear whenever the driver stood up, and if the driver then attempted to sit back down in a normal position, the seat would be too far to rear for operation. Pieces of the broken lower pawl of the seat on decedent’s payscraper were found on the floor of the payscraper while it was still running shortly after decedent’s death. When a co-worlcer sat on the seat of the payscraper in an attempt to drive it, the seat sank down about four inches. When the machine was then operated, the seat “bounced a little bit but that is all.” The break in the latch was the sort that could be caused by a sudden impact not incident to movement down a smooth roadway with no shocks or fractures involved. The broken latch was one manufactured for defendant, and installed on the decedent’s machinery 13 days prior to the incident to replace a previously broken lower seat latch. The broken latch found at the time of the inc'dent had not been changed in any way since defendant’s service mechanic installed it on decedent’s payscraper on October 17, 1968. The seat on the other payscraper on the project had been wired down; the seat on decedent’s payscraper was not wired down.

On delivery, the machine in question was not equipped with safety belts, guard rails, or any other lateral protection device to prevent the operator from falling off the machine other than the arms of the seat itself. There is expert testimony to the effect that the operator’s area was not properly designed because there was nothing to prevent the operator from falling. This was described as the major hazard to the operator.

Also, there is expert testimony to the effect that the danger of operating the machine in a standing position should be pointed out to tire operators in a printed operator’s guide, and that decals in the operator’s area should warn the operator of the use of various safety devices, and should also warn the operator that an operator’s guide with safety rules is available. There were no such warnings on the payscraper in question.

The court’s reasons for directing a verdict are obtained from colloquy in the record. He concluded that there was no evidence from which the jury could reasonably infer that decedent fell from the,machine, or from wh'ch they could infer that a safety device might have prevented a fall. Such conclusion was founded upon a preceding conclusion that the position in which the body was found was inconsistent with falling in such a manner that the machine passed over it. He concluded that decedent could have climbed from the machine despite the fact that it was moving at some speed, that decedent was seen seated some 30 seconds before and that the machine continued under its own power over some distance..

On this record, we cannot say that no verdict other than one for defendant could ever stand, and under Pedrick, we reverse. It appears highly unLkely upon the facts of this case that decedent voluntarily left his operator’s position on the payscraper. There is sufficient evidence in the record from which the jury could conclude that decedent fell or was thrown off the moving machine, whether or not as a result of the broken seat latch. There is testimony that the vehicle in question could bounce markedly while driving down the highway in question. There were hand prints on the air cleaner immediately to the right and in front of the driver’s compartment, and the machine had driven some 150 feet down the highway without a driver. A motion picture admitted into evidence and shown to the jury rather clearly demonstrates that if the scraper portion is in the raised position, it would be possible for the operator of a moving scraper to fall from his position, cling momentarily to the air cleaner, and have the entire machine pass over his body without injuring any portion of the operator other than his head, leaving the body in the position relative to the payscraper testified to at trial. There is sufficient evidence from which the jury could conclude that the lower seat latch broke while plaintiff was seated, and that when plaintiff stood up the seat sprang backwards resulting in decedent’s loss of balance when he attempted to sit down again. The record reveals sufficient evidence to go to the jury that decedent’s death resulted from an unreasonably dangerous condition of the payscraper which existed at the time it left defendant’s control and was the proximate cause of decedent’s death. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182.

In Hardware State Bank v. Cotner, 7 Ill.App.3d 212, 287 N.E.2d 13 (reversed on other grounds), this corut discussed Olsen v. Pigott, 39 Ill.App.2d 191, 188 N.E.2d 361, and Clubb v. Main, 65 Ill.App.2d 461, 213 N.E.2d 63. In each case there was no eye witness to the occurrence events. This court said:

“In Clubb and Olsen, the evidence was undisputed that their deaths were caused by the particular machinery. The evidence was undisputed that each piece of machinery was defective in one or more ways. In addition, in Olsen, evidence was presented that previous epileptic seizures had been experienced by the plaintiff and this was assigned as a possibility for his fall from the equipment. Evidence negating this was presented. Likewise in Clubb it was argued that the plaintiffs fall from the tractor was occasioned by physical illness or that a wasp or bee may have attacked him. These cases merely demonstrate that there are proper cases for jury determination where the facts are disputed, where reasonable inferences from known facts are divergent or where the conduct of the plaintiff is not free from doubt.” 7 Ill.App.3d 215, 216.

The questions of whether decedent was operating the machine while standing and eating a sandwich, and if so, such conduct constituted “misuse” of the product sufficient to defeat liability are matters to be raised by affirmative defense and to be decided by the jury. Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305.

Defendant’s argument that there is no evidence that the machine was in the same condition as when it left the defendant manufacturer does not persuade. An invoice in evidence shows that the machine was delivered to the decedent’s employer about September 9, 1968. There is no dispute that it was delivered without seat belts, side rails or other protective devices. The evidence is clear that the broken pawl described in evidence was a replacement made by defendant at a time for service on October 17, 1968. So far as the allegations in issue are concerned, the evidence shows that it was in the same condition as at the time delivered.

As this case must be remanded for a new trial, we consider various errors in evidentiary rulings that should not occur on retrial. The trial court excluded testimony by two witnesses of prior breakages of the power seat latches. The basis of these rulings was absence of sufficient foundation to show similarity of circumstances in the previous breakages. Although there was no evidence as to the circumstances under which the other machines were operated, the payscraper is obviously designed for heavy duty off-the-road use, and would never be operating on a paved highway except to transport loads of dirt or the tractor itself from place to place. The other witness testified that the latches on the identical machines used on the project where decedent was killed had suffered broken latches which had to be replaced.

The evidence of other instances of breakage in cases of this type are admissible to show that the common cause is a dangerous or unsafe condition and that the manner in which the pawl served its purpose is material to the safety of the machine for its practical use. It is also material to show notice of such unsafe condition to the manufacturer. (City of Bloomington v. Legg, 151 Ill. 9, 37 N.E. 696; Moore v. Jewel Tea Co., 116 Ill.App.2d 109, 253 N.E.2d 636, aff'd, 46 Ill.2d 288, 263 N.E.2d 103.) In Vlahovich v. Betts Machine Co., 101 Ill.App.2d 123, 242 N.E.2d 17, aff'd, 45 Ill.2d 506, 260 N.E.2d 230, and Ray v. Cock Robin, Inc., 10 Ill.App.3d 276, 293 N.E.2d 483, it was held to be error to exclude evidence of such similar occurrences. There is other testimony in the record that defendant received 10 to 40 complaints per year concerning the broken pawls over a period of years. Although the excluded testimony might have been cumulative, on remand such testimony should not be excluded as inadmissible.

A copy of a report prepared by one of the defendant’s engineers was denied admission into evidence on the basis that as the author of the report was present in court to testify, the report should not be admitted into evidence because the author’s testimony and not the report would be the best evidence of the matters' contained in the report. The report included instructions to remove the lower seat latch and to weld a portion of tire seat to the frame to eliminate the need for the lower latch, because, unlike a farm tractor, a payscraper does not have any specific need for a seat to be adjustable to enable the operator to stand up. There was no explanation of the absence of the original. Upon such a foundation, the trial court correctly ruled that the copy should not be admitted under the “best evidence” rule. However, the “best evidence” rule is merely a preference for documentary originals, and such rule does not require the exclusion of documentary evidence where oral testimony to the same effect is available. On remand, if the original is produced or its absence satisfactorily explained with proper authentication of a copy, the report should not be excluded by virtue of the “best evidence” rule, and should be accepted into evidence if no other evidentiary objections are properly sustainable. Cleary, Handbook of Illinois Evidence § 15.1 at 245-246 (2d ed. 1963); Pugh v. Bershad, 133 Ill.App.2d 174, 272 N.E.2d 745.

Certain data sheets published by the National Safety Council were testified to be authoritative and were excluded from evidence on the basis that they were not competent. It appears that portions of these data sheets are not relevant and were properly excluded. However, the relevant portions should have been accepted into evidence to aid the jury in deciding what was feasible, and what the defendant knew, or should have known, about safety precautions without conclusively determining the standard of care to be imposed upon defendant. Hardware State Bank v. Cotner, 55 Ill.2d 240, 302 N.E.2d 257.

The judgment is reversed and the cause remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SMITH

license: Public Domain

text:
    State Bank of Cerro Gordo, Plaintiff-Appellee, v. Jim Benton, Defendant-Appellant.
    (No. 12165;
    Fourth District
    October 10, 1974.
    Monroe, Wilson, Dyar, Houchen, McDonald and Taylor, of Decatur (Kirdey E. Wilson, of counsel), for appellant.
    Burger, Fombelle and Wheeler, P. C., of Decatur (Thomas Ml Wheeler, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This is an appeal by the defendant from a judgment of the circuit" court of Macon County imposing individual liability against him for $9,174.20 for an indebtedness of “Jim Benton, Inc. ” a corporation. In entering such judgment, the trial court pierced the corporate veil and imposed the individual liability. Its action in so doing the defendant says is against the manifest weight of the evidence. We disagree and affirm the trial court.

In 1964, Jim Benton incorporated Jim Benton, Inc., under the Illinois Corporation Act and was the owner of 249 shares of the 250 shares of the authorized stock of. the company. The defendant’s wife was the owner of the other share and the amount contributed by way of capitalization was $2,500. The corporation engaged in a used car business over the years and was dissolved in October, 1969. For its fiscal year ending March 31, 1969, the final corporation income tax return shows total gross receipts of $815,000 plus. During its corporate existence, Jim Benton advanced some $100,000 to the corporation for operating capital. The corporation supplied finance for individuals purchasing cars on installment contracts and during the years transacted considerable business with the plaintiff bank. The bank obtained a judgment against the corporation for the deficit on five installment contracts in default, demanded payment and then filed suit against Jim Benton individually.

No report of trial proceedings was available and accordingly a stand-by record was made certified by the parties and approved by the trial judge. From this it appears that during the transaction in question, the bank was aware that the contracts were being purchased from the corporation, that the bank records showed no personal guarantee by Jim Benton and that the bank had on several occasions requested financial statements from the corporation and from Jim Benton and his wife. Benton testified that the corporation ceased to do business in September, 1969, although his sworn answer to written interrogatories was that the corporation ceased to do business in October. He stated that he had during the course of the corporation’s existence made loans approximating $99,000 and that after the corporation ceased to do business, he repaid himself $20,000 to $25,000 as repayments on loans which he had previously made. He did lease some cars personally and did not know why on his final corporation return the depreciation was taken by the corporation, and that all of the contracts in question here were made before the corporation was dissolved. He further testified that he signed all of the contracts and in fact signed all agreements made on behalf of the corporation. Although tire corporation had a manager, he was the only one authorized to enter into any agreements for or on behalf of the corporation. He prepared and presented a financial statement furnished to the bank. He further testified that he did not transfer any of the corporate assets during the preceding year except that he had repaid himself some of the money he had loaned and that the amount would approximate $20,000 to $25,000. The contracts upon which tire judgment was against the corporation were based on a retail installment contract form on which the name of Millikin National Bank at Decatur, Illinois, was printed, together with a dealer’s assignment and agreement and a full recourse agreement signed by Jim Benton, Inc., by J. E. Benton. The name of Millikin National Bank was stricken from all of the agreements and instead a rubber stamp State Bank of Cerro Gordo was used on the front page.

On the facts here stated, the trial court pierced the corporate veil, held that the corporation was the alter ego of Jim Benton and imposed a judgment against him individually for this indebtedness of the corporation to the plaintiff. The defendant basically relies upon the proposition that there is nothing inherently wrong in an individual acting as a corporation and that a corporation is generally recognized as a legal entity separate and apart from its individual shareholders, be they one or many. The plaintiff accepts this rule but asserts that the corporate fiction may be disregarded when it is merely an alter ego or business conduit of an individual in cases where it should be so disregarded in the interest of securing a just determination of an action and that actual fraud or illegality is not required.

“A sole stockholder cannot wrongfully cause the transfer of all of the property of the corporation to be made to himself so as to deprive a creditor of the corporation of the payment of his debt; and if he does so, the creditor may hold him responsible for that payment.” (19 Am. Jur. 2d Corporations § 715 (1965); Angle v. Chicago, St. P., M. & O. Ry. Co., 151 U. S. 1, 38 L.Ed. 55, 14 S.Ct. 240.) “Where the corporate fiction is merely an alter ego or business conduit of an individual, it may be disregarded in the interest of securing a just determination of an action.” (18 Am. Jur. 2d Corporations § 15 (1965).) The doctrine that a corporation is a legal entity existing separate and apart from the person or persons composing it is a legal theory used for the convenience of the business world. “The concept cannot, therefore, be extended to a point beyond its reason and policy, and when invoked in support of an end subversive of this policy, will be disregarded by the courts.” (Annot., 63 A.L.R.2d 1051 § 1 (1959).) The case at bar is almost on all fours with Automotriz del Golfo de California v. Resnick, 47 Cal.2d 792, 306 P.2d 1, 63 A.L.R.2d 1042, where the question of inadequate capital is discussed as a basis for piercing the corporate entity and holding individuals hable. Piercing the corporate entity will be accomplished to prevent a solely-owned corporation to escape sales tax. Superior Coal Co. v. Department of Finance, 377 Ill. 282, 36 N.E.2d 354.

In People ex rel. Scott v. Pintozzi, 50 Ill.2d 115, 277 N.E.2d 844, our supreme court stated: “The concept of disregarding the corporate existence and imposing liability personally upon the real parties to a transaction is well established and is summarized in 19 C.J.S., Corporations, sec. 839, page 264: Where the director or officer is the alter ego of the corporation, that is, where there is such unity of interest and ownership that the separateness of the individual and corporation has ceased to exist, and the facts are such that an adherence to the fiction of separate existence of the corporation would sanction a fraud or promote injustice, such director or officer will be held liable for obligations of the corporation.’ ”

Each complaint in this case alleges the transfer by the defendant of corporate funds to himself, that such transfer was made without consideration and with the intent to defraud existing creditors of the corporation and the plaintiff as creditor. The answer of the defendant to the interrogatories indicate that on April 1, 1968, to March 31, 1969, the corporation returned to the defendant the sum of $9,808.08, and that such payments were repayment of funds advanced by him. It is thus apparent that as an individual creditor, he profited to this extent to the exclusion of other creditors including the plaintiff. Thus the defendant attempts here to use the corporate entity for his own personal benefit to the exclusion of the plaintiff, and thereby becomes unjustly enriched at the expense of the corporate creditors. Under such circumstances, we are of the opinion that the authorities require that the corporate veil be pierced and the defendant be held personally liable for the payment of this indebtedness. It seems perfectly clear that the protective cloak of corporate entity is sought to be used for his own personal enrichment and to accomplish an unjust result.

Accordingly, the judgment of the trial court must be and it is hereby affirmed.

Affirmed.

CRAVEN and SIMKINS, JJ., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Boyd et al., Defendants-Appellants.
    (No. 57686;
    First District (4th Division)
    September 25, 1974.

      Rehearing denied October 24, 1974.

      Paul Bradley and William K. Hedrick, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Michael J. Polelle, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant-appellants were indicted for the offenses of robbery and aggravated battery and after a jury trial the defendants were found guilty of both crimes. The defendants were sentenced on the robbery charge and Boyd received a sentence of 3 to 6 years in the penitentiary and Richmond was sentenced to a term of from 5 to 15 years in the penitentiary. The defendants have raised four issues in this appeal. They contend that the trial court erred in refusing to grant their motions to suppress identification testimony; that the trial court placed a burden upon the defense of calling adverse witnesses as their own witnesses and thereby denied defendants the right to due process of law, counsel and confrontation; that the trial court unduly restricted the defense cross-examination of two witnesses; and that the evidence was insufficient to support the convictions. In addition defendant Boyd maintains that his sentence must be modified pursuant to the provisions of the Illinois Unified Code of Corrections.

The complaining witness, Robert Treskow, testified that on October 18, 1971, at approximately 11 P.M., he was walking east on Wilson Avenue in Chicago. He stated that as he crossed an alleyway and started up on the sidewalk two men grabbed him on each side and a third man grabbed him from behind. Mr. Treskow turned to his right and left and looked at the assailants who were on either side of him. He stated that the men dragged him into the alley and that he was hit below his left eye. Treskow was knocked to the ground and beaten and then he passed out. He stated that the two defendants and a third man whom he could not identify were the ones who beat and kicked him. Treskow did not know how long he was unconscious but when he regained consciousness he noticed his shirt was bloody and his pants had been ripped where he carried his wallet. He testified that his wallet was missing and that it contained approximately $4 and his identification cards which were contained in a plastic packet. He stated he left the alley and walked west on Wilson Avenue to a tavern, and asked someone to call the police.

A police officer arrived at the tavern and Treskow had a conversation with him. Treskow then got into the squad car and was taken to the Foster Avenue Police Station. When Treskow arrived at the police station, he was taken into a room with several desks. He stated he had a conversation with an officer-clerk and that this officer gave back his identification cards. Treskow testified that another policeman, Officer Freeburg, came into the room and took him into another room and asked Treskow if he could point out the people who had robbed and beaten him. Treskow stated that there were more than 10 people in the room but he was not sure of the exact number. He described the people in the room as civilians and dressed in either jackets or shirts and ties and sweaters. Treskow stated that he identified two men who were in the room as his assailants. These two men were the defendants. Treskow also made an in-court identification of the defendants as the men who robbed and beat him. He stated that at the time he identified the defendants at the police station they were not handcuffed. After the identification at the station, Treskow was taken to. the emergency room at Weiss Memorial Hospital.

Upon cross-examination Treskow stated that he observed the assailants on either side of him for less than 5 minutes. He was then asked if he saw them for less than a minute and he responded that he looked to the left and to the right but for how.long in each direction he did not know. He was asked if he was able to determine whether all three men who attacked him were Indians and he replied that he was able to ascertain that two of them were. However, Treskow did admit that on a previous occasion he had stated that all three men were Indians although he never saw the third man. Treskow was also questioned during cross-examination about the description of his assailants that he had given to the police. He stated he gave a description of three Indians but he was only able to identify two. One was .wearing a light jacket and the other was wearing a blue jacket and Treskow also thought he had on blue denim pants. Treskow stated that he was not informed while at the police station how the police had recovered his identification cards nor was he told before he entered the room where he made the identification that the police had arrested two suspects.

On redirect examination Treskow stated that when he was first grabbed he was on a sidewalk next to the street. He was then asked what the lighting conditions were and he responded, “As I recall the North Shore Church is right across the street, a large church so the street side is fairly well lighted.” However, Treskow did state it was dark in the alley.

The next witness called by the prosecution was Officer Lonnie Sides of the Chicago Police Department. He testified that on October 18, 1971, at approximately 11 P.M. he responded to a robbery in progress call. When Officer Sides arrived in the area of .1020 West Wilson, he observed Mr. Treskow. He stated that Treskow was bleeding severely from the face. Officer Sides took Treskow to his squad car, got a description of the assailants from Treskow and an account of what had happened. Sides then sent a flash message over his radio. During cross-examination Offi.cer Sides stated that Treskow told him that one of his assailants was 22 to 30 years old and the other was between 30 and 40. According to Sides, Treskow also described the approximate height and weight of the robbers and told him that his assailants were Indians. Officer Sides .also stated that two other policemen, Officers Hilden and Freeburg, arrived at the scene and told Sides to come over to their vehicle. Sides walked over to their squad car and stated that he observed the two defendants in the back seat. Officer Sides also stated that Mr. Treskow did not come over to the other squad car.

Officer Michael Hilden of the Chicago Police Department testified for the prosecution and stated that on October 18, 1971, at approximately 11 P.M., he and his partner, James Freeburg, were on patrol in a squad car. They were southbound on Sheridan Road and as they approached Lawrence Avenue they received a radio communication. Officer Hilden stated that as they approached Lawrence Avenue and Kenmore, he and his partner observed two men walking north on Kenmore. According to Officer Hilden, the two men were Indians and one was wearing a white coat and the other a blue jacket. The officers curbed their vehicle and called the two men over to the squad car. Officer Hilden made an in-court identification of the defendants as the men who were stopped. Officer Hilden testified that it was approximately 2 minutes after the radio communication was received that he observed the two men. He also stated that the location where he observed the defendants was approximately two blocks from the scene of the robbery. Officer Hilden testified that as the two men walked towards the squad car, he observed the defendant Boyd drop a packet out of his rear pocket. According to Hilden, Officer Freeburg picked up the packet and then the two men were placed in the rear of the squad car. In the squad car Officer Hilden examined the packet and observed that the identification cards in it bore the name of Robert Treskow. Officer Hilden stated that they then proceeded to the intersection of Wilson and Kenmore where Officer Sides was located. Officer Hilden had a conversation with Officer Sides and then the defendants were taken to the 20th District Police Station.

The next witness to testify on behalf of the prosecution was Officer James Freeburg. His testimony was substantially similar to that of Officer Hilden in regards to encountering the defendants on the evening in question. Officer Freeburg also stated that he observed the defendant Boyd drop a packet from his rear pocket as he walked toward the squad car. Officer Freeburg further testified that when they arrived at the 20th District Police Station, the two defendants were placed in a review room along with approximately a dozen other people. According to Free-burg, approximately 3 or 4 minutes after he and Officer Hilden and the defendants arrived Officer Sides brought Mr. Treskow into the station. Officer Freeburg stated that Treskow was put in another room that adjoined the review room. Officer Freeburg left the review room and got Mr. Treskow and brought him into the review room. Officer Freeburg stated that he asked Treskow if he could identify Ms assailants and that Treskow identified the two defendants.

Upon cross-examination Officer Freeburg stated that the description he and Officer Hilden received over the radio was of three male Indians. He also stated one Indian was described as wearing a white coat and the other as wearing a blue jacket. However, Officer Freeburg could not recall if the radio broadcast also included a description of the assailants’ ages, heights and weights and color of hair. Officer Freeburg also stated that the two defendants were the only Indians in the review room at the time Treskow identified them.

The defendant, Melvin Boyd, testified in his own behalf. He denied committing the crimes with which he was charged. He also denied ever having Mr. Treskow’s identification packet in his possession and stated he did not drop it when he was stopped by the police. Boyd testified that after he and Richmond were placed in the squad car they were taken to an alley at Lawrence and Wilson. He stated that Officer Sides brought Mr. Treskow over to the squad car and asked Treskow if these were the men. According to Boyd, Treskow stated, “No, sir, them ain’t the two guys, the guy had a white shirt on.”

The first issue raised by the defendants is that the trial court erred in not granting their pre-trial motion to suppress the identification testimony of the complainant, Robert Treskow. The defendants contend that the pre-trial identification procedure was unnecessarily suggestive and that the State failed to prove by clear and convincing evidence that an adequate independent orig:n existed for the identification. While we agree that the pre-trial identification procedure utilized in the case at bar was unnecessarily suggestive, we are of the opinion that an adequate independent origin existed for the identification and therefore, the trial court did not err in denying the motion to suppress the identification testimony of Robert Treskow.

At the hearing on the motion to suppress, Mr. Treskow testified that Officer Freeburg led him into a room that contained approximately 15 to 20 people and asked if he could identify the men who had robbed and beaten him. Treskow could not recall if any uniformed police officers were in the room. He identified the defendants as his assailants and stated that the defendant Boyd was walking around the room trying to get a cigarette. Treskow stated that Boyd approached him and came within 5 or 6 feet and then turned around and went back. Treskow testified that Boyd had a light three-quarter length jacket on and Richmond was wearing a blue jacket and denim trousers. According to Treskow, Richmond was seated in the room and neither man was handcuffed. Treskow denied that any police officer told him that they had arrested someone that they would like him to view.

Officer Hilden also testified at the hearing on the motion to suppress and stated that defendants were placed in a review room and that approximately 10 or 12 people were in the room. Officer Hilden stated there were about four uniformed policemen in the room and that Officer Freeburg brought in Treskow and that Treskow identified the defendants immediately.

Officer Freeburg testified that there were approximately a dozen people in the review room and that four or five of them were uniformed policemen. He stated that only two of the people in the review room were Indians and that they were the defendants. Officer Freeburg was asked if he told Treskow that there were suspects in custody and responded, “I told him there were two people in the room.” Freeburg also testified that Treskow identified both defendants as his assailants.

The law concerning the admissibility of identification testimony has been well established and it was succinctly set forth in People v. Tuttle, 3 Ill.App.3d 326, 330, 278 N.E.2d 458, 461 (1972). The court there stated:

“In order to suppress an in-court identification on the ground of improper pre-trial identification procedures, a defendant bears the burden of proving two facts. First, he must establish that the pretrial identification procedures were so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States, 390 U.S. 377, 384; People v. Holiday, 47 Ill. 2d 300, 307-308.) Second, to the extent that suggestive procedures are established, they must be shown to have been unnecessary’ under the totality of the circumstances. (Stovall v. Denno, 388 U.S. 293, 302; People v Lee, 44 Ill.2d 161, 169.) However, even if a defendant successfully establishes the above two elements, an in-court identification may nonetheless be admissible if the State shows “by clear and convincing evidence, that such in-court identification had an independent origin, arising from other uninfluenced observation of the defendant.’ People v. McMath, 104 Ill.App.2d 302, 313; affirmed, 45 Ill.2d 33; see also People v. Fox, 48 Ill.2d 239, 245.”

We are of the opinion that the pre-trial identification procedure utilized in the case at bar was suggestive and did present a substantial likelihood of irreparable misidentification.

The defendants were placed in a review room with approximately ten other people. Four or five of the individuals in the room were uniformed policemen. The defendants were the only Indians in the room and all the other people were physically dissimilar. The only people in the room wearing clothing similar to that described by the complaining witness were the defendants. In addition the statement by Officer Free-burg that there were two people in the room is also a suggestive factor that must be considered. Martinez v. Turner, 461 F.2d 261 (10th cir. 1972).

In determining whether a pre-trial identification procedure is unnecessarily suggestive, the totaLty of the circumstances surrounding the confrontation must be considered. (Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967 (1987).) When this is done in the instant case, the inevitable conclusion is that no feasible choices for identification were presented to the complaining witness. The case at bar is similar to People v. Morris, 131 Ill.App.2d 443, 266 N.E.2d 444 (1970), and Martinez, supra. As in those cases tire defendants in this case stood out suggestively and prominently in the pre-trial confrontation. The pre-trial identification procedure utilized in the case at bar was suggestive and should not be condoned or emulated. However, we are also of the opinion that an adequate independent origin existed for the identification.

The factors to be considered by a court in determining whether an independent basis exists for an in-court identification were first enunciated by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 241, 18 L.Ed.2d 1149, 1165, 87 S.Ct. 1926, 1940 (1967), and were reiterated in Neil v. Biggers, 409 U.S. 188, 199-200, 34 L.Ed.2d 401, 411, 93 S.Ct. 375, 382 (1972). The Supreme Court stated in Biggers:

“# * # the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of the certainty demonstrated by the witness at the confrontat-'on, and the length of time between the crime and the confrontation.”

In the case at bar, Treskow spent approximately 1 to 5 minutes with his assailants and the initial observation occurred in a reasonably well-lighted area. Treskow testified that when he was grabbed he turned to his right and left and looked at the assailants who were on either side of him. This occurred at a time when Treskow was still conscious and attentive to the events taking place. While there was conflicting evidence as to the degree of thoroughness of Treskow’s prior description of the defendants, there is no doubt that he was able to determine that they were Indians and the style and color of the outer clothing they were wearing. Treskow did not hesitate in identifying the defendants and did so immediately upon entering the review room. The length of time between the robbery and the confrontation was relatively short. When we consider all of these factors, it is our opinion that an adequate independent origin existed for the identification and the trial court, therefore, did not err in denying the motion to suppress the identification testimony of the complainant, Robert Treskow.

The defendants in the case at bar were represented by separate assistant public defenders. Defendant Richmond was represented by a Mr. Kunkle and defendant Boyd by a Mr. Bloom. At the hearing on tire motions to suppress identification testimony Mr. Kunkle called Officer Sides as a witness and questioned him on direct examination. Mr. Bloom then attempted to cross-examine Officer Sides but the trial court would not permit him to do so. Bloom was allowed to conduct a direct examination of Officer Sides and proceeded to conduct a lengthy and thorough examination. In denying Bloom’s attempt to cross-examine Sides the trial court stated:

“You are not going to have the opportunity of cross examining, if you don’t join in the motion, if it’s not your motion present your witness on your motion, but I combined them for this motion. Proceed, it’s direct. Proceed.”

It is evident from this statement and the remainder of the record of the suppression hearing that the trial court was treating tire individual motions of the defendants to suppress identification testimony as combined. Indeed at one point the assistant State’s Attorney prosecuting the case asked the trial court, “Are these motions combined?” and the court responded, “Yes, proceed.” The defendants contend that the trial court erred in not affording assistant Public Defender Bloom the opportunity to cross-examine Officers Sides.

The defendants maintain that the trial court’s refusal to allow Mr. Bloom the opportunity of cross-examining Officer Sides denied defendants their constitutional rights to confrontation, counsel and due process of law. Defendants further maintain that the trial court ruled that any petitioner could not cross-examine witnesses and characterize the issue as whether any petitioner’s attorney can cross-examine suppression witnesses even the witnesses called by the petitioner himself. The thrust of thp defendants’ argument on this issue is that in a hearing on a motion to suppress identification testimony the petitioner must demonstrate the existence of taint but that the restrictions placed on a petitioner in the circuit court do not allow a petitioner to adequately raise the issue of witness credibility. Defendants specifically point to the fact that a petitioner is not allowed to cross-examine, impeach, or ask leading questions of the witnesses he calls and maintain that what is at issue is the constitutional adequacy of the pre-trial devices for protecting defendants. The defendants contend that at some point suppression witnesses should be treated as though they were court witnesses.

We do not agree that the trial court’s refusal to allow Mr. Bloom to cross-examine Officer Sides denied defendants their constitutional rights to confrontation, counsel, and due process of law. The contention of the defendants that the trial court ruled that any petitioner could not cross-examine witnesses is erroneous. The trial court ruled that assistant public defender Bloom would not be allowed to cross-examine Sides because the motions had been combined. The two motions to suppress were identical motions and both' were signed by Assistant Public Defender Kunkle. There was no objection made to the consolidation of the motions and Mr. Bloom never made an offer of proof as to any impeaching material he wished to introduce to the court. Although the trial court’s ruling is somewhat ambiguous, the record indicates that the reason the motions were consolidated was that the evidence for one defendant would be the same for the other defendant. Therefore, although Officer Sides had been called as a witness by Kunkle, he was in effect also Bloom’s witness. The trial court’s ruling was correct and in accord with the general rule of law that one may not cross-examine or impeach his own witness. (People v. Kraus, 377 Ill. 539, 37 N.E.2d 182 (1941); People v. Wesley, 18 Ill.2d 138, 163 N.E.2d 500 (1959).)

The defendants question the constitutional adequacy of the pretrial devices for protecting defendants and contend that the restrictions placed on a petitioner at the trial court level do not allow a petitioner to raise the issue of witness credibility adequately. At a hearing on a motion to suppress identification testimony, the question before the court is whether the identification was improperly influenced by suggestive procedures and if so does an adequate independent basis for the identification exist. The relevant areas of inquiry at such a hearing are the circumstances surrounding the crime; the circumstances of the identification confrontation; and the procedures utilized by the police in having a witness view a suspect. These areas can usually be adequately explored through direct examination. However, if counsel for a defendant finds it necessary to draw in question a witness’ credibility procedures exist for doing so.

Illinois Supreme Court Rule 238 deals with hostile witnesses. It states:

“If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statement.” (Ill Rev. Stat. 1971, ch. 110A, par. 238.)

In addition a witness may be called as a court’s witness or declared a court’s witness during the course of questioning and cross-examined by either side. As stated in People v. Mostafa, 5 Ill.App.3d 158, 165, 274 N.E.2d 846, 851 (1971):

“The principles governing the calling of a court witness are now well established in our criminal law. A witness may be made a court witness, and subjected to cross-examination by either side, where, for sufficient reasons shown, his integrity or veracity is doubtful and neither side desires to vouch for his testimony. (People v. McKee, 39 Ill.2d 265, 270, 235 N.E.2d 625.) Calling a person as a court witness rests in the sound discretion of the trial judge. (People v. Stoudt, 90 Ill.App.2d 140, 232 N.E.2d 800.) The party requesting that a witness be called by the court must make a showing that manifest injustice would result if the request were refused. People v. Johnson, 333 Ill. 459, 165 N.E. 235; People v. Routt, 100 Ill.App.2d 388, 241 N.E.2d 206.” (Accord, People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65 (1958); People v. Wesley, 18 Ill.2d 138, 163 N.E.2d 500, (1959).)

The case of People v. Catavdella, 31 Ill.2d 382, 202 N.E.2d 1 (1964), is an example of where counsel for the defendants availed themselves of the procedures whereby they were permitted to cross-examine a witness whom they had called at a hearing on a motion to suppress certain evidence. Counsel for the defendants in the instant controversy did not seek to utilize either Supreme Court Rule 238 or the procedure of having a witness declared a court’s witness.

We do not agree that there is any question as to the constitutional adequacy of the pre-trial devices for protecting defendants. While a defendant who moves to suppress identification testimony bears the burden of demonstrating the existence of taint, adequate procedures exist to raise the issue of witness credibility if that should become necessary. The defendants contend that at some point suppression witnesses should be treated as though they were court witnesses. However, a suppression witness can be called as a court’s witness if sufficient reason is shown to doubt the witness’ integrity and veracity.

The defendants have cited the United States Supreme Court case of Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965), and assert that the holding in Pointer should be applied to the instant controversy. However, the Pointer decision is totally inapposite to the defendants’ situation. In Pointer the defendant was arrested and brought before a judge on a preliminary hearing. The chief prosecution witness testified but Pointer, who was not represented by counsel, did not cross-examine the witness. At trial it was established that the chief witness had moved and did not intend to return to Texas. The prosecution then introduced the transcript of the child witness’ testimony at the preliminary hearing as evidence against Pointer. Pointer’s trial counsel objected on the basis that utilization of the transcript would be denial of Pointer’s right to confront the witnesses against him. The Supreme Court agreed that the use of the transcript to convict Pointer denied him a constitutional right. However, it is readily apparent that the facts in the case at bar are totally different from those in Pointer. As the State points out in its brief, in the instant controversy defense counsel were permitted to question Officer Sides at the combined hearing on the motions to suppress identification testimony. In addition they cross-examined Sides at the trial and the State never attempted to introduce at trial the testimony taken at the combined hearing. The Pointer decision is simply not applicable to the defendants’ situation.

The defendants also cited People v. Robinson, 46 Ill.2d 229, 263 N.E.2d 57 (1970), as authority for the proposition that our supreme court has struck down attempts to restrict relevant questioning by defense counsel at a suppression hearing. However, in Robinson, the defense counsel was not permitted to question a suppression witness in regards to any relevant areas. In the case at bar both defense counsel questioned Officer Sides and the examinations were lengthy and thorough. Defendants also rely on People v. Nudo, 131 Ill.App.2d 930, 268 N.E.2d 894 (1971), but that decision is also not persuasive authority for the defendants’ position. We are of the opinion that the trial court’s refusal to allow Assistant Public Defender Bloom to cross-examine Officer Sides was not a denial of the constitutional right to confrontation. Sinrlarly, we find no merit in the contention that the rights to counsel and due process of law were denied.

The next issue raised by the defendants is that the trial court unduly restricted the cross-examination by defense counsel of two witnesses at the trial. Defendant Richmond maintains that his defense attorney was not permitted to introduce impeaching evidence in regards to the testimony of the complainant, Robert Treskow and defendant Boyd contends that his defense attorney was not allowed to impeach Officer Lonnie Sides. At trial, during the cross-examination of Treskow, Mr. Kunkle, defense counsel for Richmond, questioned Treskow as to how long he had an opportunity to observe Richmond at the time of the robbery. Treskow responded in effect that he did not know. Mr. Kunkle then asked the following questions and Treskow gave these responses:

“Q. Was it less than an hour?
A. Was it less than an hour?
Q. Yes.
A. Yes.
Q. Was it less than a half hour?
A. Yes.
Q. Was it less than a minute?
A. That I don’t know.”

Kunkle then referred to the transcript of the testimony that Treskow gave at the preliminary hearing in this case. He asked Treskow if he was asked this question and did he give this answer:

“Q. Okay, about a second or two you had a chance to see them?
A. Approximately, right.”

The State’s attorney objected and the trial court asked, “What was the purpose of asking that question.” Mr. Kunkle responded in effect that the testimony was offered for tire purposes of impeachment. The trial court' stated:

“Counsel, one side or the other side here he said the exact same thing to both sides, that is not impeaching; and the motion of the state wiU be granted, the jury is completely to disregard everything that the defense attorney has just read from that transcript.”

Defendant Richmond contends the trial court erred in not allowing Mr. Kunkle to impeach Mr. Treskow and in stating in the presence of the jury that the evidence was not impeaching. We do not agree.

It is well established that a witness may be cross-examined as to prior inconsistent statements. However, the inconsistency must be substantial and relate to a material and not a collateral or irrelevant matter. (People v. Dascola, 322 Ill. 473, 153 N.E. 710 (1926).) The test whether a prior statement is sufficiently inconsistent to be utilized for impeachment purposes was succinctly stated in People v. Rainford, 58 Ill.App.2d 312, 320 to 321, 208 N.E.2d 314, 318-319 (1965).

“Generally, a prior statement of a witness, in order to be capable of being proved for purposes of impeachment, must be materially inconsistent with his testimony. The test to be applied in determining inconsistency has been variously stated but basically is that the inconsistent statement must have a reasonable tendency to discredit the direct testimony on a material matter. McCormick on Evidence, c 5, § 34, p 64 (1954); CJS vol 98, Witnesses, § 583, p 559.”

It has also been stated that “* # * a witness [is not] to be discredited by a variance in slight particulars between his testimony and his previous statements where there is no material inconsistency or contradiction.” (98 C.J.S. Witnesses § 583 (1957).) We are of the opinion that the variance between Treskow’s testimony at trial and at the preliminary hearing was not material and therefore, the trial court did not err in striking the evidence Mr. Kunkle sought to introduce and instructing the jury to disregard it.

It is also significant to note that the very same evidence which Kunkle sought to introduce had already been introduced by Assistant Public Defender Bloom when he cross-examined Treskow. Bloom had asked Treskow if he had observed his assailants for less than 5 minutes and Treskow responded affirmatively. Bloom then asked Treskow, “Was it less than a minute?” and Treskow replied, “I don’t know.” Assistant Public Defender Bloom then referred to the same part of Treskow’s preliminary hearing testimony that Mr. Kunkle had attempted to introduce and Treskow admitted being asked that question and giving that answer. The State did not object. Therefore, even if this preliminary hearing testimony was impeaching of Treskow’s trial testimony, we are of the opinion that it was not error to prevent this repetition of questions that had already been answered. (Walther v. Chicago & Alton R.R. Co., 188 Ill.App. 221 (1914).) “It is the rule that the exclusion of evidence, designed to impeach a witness or affect his credibility, will constitute reversible error where the effect has been prejudicial. (People v. Whitehead, 35 Ill.2d 501; People v. Malston, 122 Ill.App.2d 466.)” (People v. Jackson, 2 Ill.App.3d 297, 302, 275 N.E.2d 737, 741 (1971).) We cannot perceive how the exclusion of the evidence sought to be introduced by Kunkle prejudiced the defendant Richmond when the identical evidence had been fully and adequately brought to the attention of the jury during the cross-examination conducted by Assistant Public Defender Bloom. Kunkle’s questioning was redundant and even if the evidence was impeaching the trial court correctly exercised its discretion in controlling cross-examination by prohibiting repetitious examination by defense counsel.

We do not look with favor upon the trial court’s comment in the presence of the jury that the evidence was not impeaching. This comment was made in response to the State’s objection and gave the rationale for the trial court’s sustaining the objection. As previously pointed out, we find no material inconsistency in Treskow’s trial and preliminary hearing testimony and the trial court’s explanation of its ruling was not so harmful as to constitute prejudicial error. See People v. Morgan, 28 Ill.2d 55, 190 N.E.2d 755 (1963).

Defendant Boyd maintains that the trial court erred in not allowing his defense counsel to impeach Officer Lonnie Sides. Officer Sides was called as a witness on behalf of defendant Richmond. Assistant Public Defendant Kunkle asked Officer Sides on direct examination the following question and he gave the following answer:

“Q. So you didn’t see or did you see Mr. Treskow in the same room with these two gentlemen at any time on that evening?
A. No, sir, I didn’t.”

At the conclusion of Kunkle’s direct examination Boyd’s defense counsel, Mr. Bloom, began to cross-examine Sides. Mr. Bloom attempted to refer to the preliminary hearing testimony of Officer Sides but the State interposed an objection and a conference was had in the trial court’s chambers. The trial court stated that Bloom by calling Officer Sides as a witness at the motion to suppress had vouched for Ir's credibility and that to now allow Bloom to cross-exam'ne Sides would be ridiculous. Mr. Bloom then made an offer of proof by referring to Officer Sides’ preliminary hearing testimony in which he stated that while he was interviewing Treskow at the police station Treskow observed two people in the same room and identified them as his assailants. Mr. Bloom maintained that this was impeaching of Officer Sides’ trial testimony that he did not see Treskow in the same room with the defendants at any time on the evening in question. The trial court ruled that this was not impeaching and that Bloom could not impeach Sides because he had vouched for his credibility at the motion to suppress.

While we agree with defendant Boyd that the trial court erred in not permitting defense counsel Bloom to impeach Officer Sides, we are of the opinion that Boyd was not prejudiced thereby since Mr. Bloom was able albeit indirectly through subsequent questioning of Officer Sides to draw the jury’s attention to the inconsistency between Sides’ preliminary hearing and trial testimony. Officer Sides was not called as a witness on behalf of defendant Boyd and Assistant Public Defender Bloom had not vouched for Sides’ credibility at trial. The case of People v. Van Dyke, 414 Ill. 251, 111 N.E.2d 165 (1953), is analogous to the instant situation. In that case Earl Keller and Jesse Van Dyke were arrested and charged with burglary and larceny. At the trial of Van Dyke, Keller was called as a witness by the State and admitted knowing Van Dyke but denied being with h'm at the time of the crime. Van Dyke also called Keller as a witness and he testified again that he did not see Van Dyke on the day of the crime. The State was permitted on cross-examination to question Keller as to a prior inconsistent statement he gave the assistant State’s attorney. Our supreme court upheld this use of a prior inconsistent statement as proper for impeachment purposes and held that to preclude proof of a prior declaration inconsistent with that stated in testimony would not be an aid to the promotion of justice. The State in Van Dyke was therefore allowed to impeach a witness called by the defense who had previously been called by the State. Similarly, in the case at bar, Assistant Public Defender Bloom should have been permitted to introduce the impeaching evidence in regards to Officer Sides’ testimony. However, as previously stated the exclusion of evidence sought to be admitted for impeachment purposes is reversible error only where the effect has been prejudicial. (People v. Jackson, supra.) We are of the opinion that despite the erroneous ruling of the trial court defendant Boyd was not prejudiced.

At the conclusion of the conference in chambers, defense counsel Bloom resumed his questioning of Officer Sides. Although he was not permitted to directly refer to Officer Sides’ preliminary hearing testimony, Bloom asked a series of questions through which he was able to elicit from Sides and draw the jury’s attention to the fact that Mr. Treskow had identified the defendants as his assailants in Officer Sides’ presence. We are, therefore, of the opinion that through a circuitous method the impeachment of Officer Sides was accomplished and that defendant Boyd was therefore not prejudiced by the trial court’s ruling.

The next issue raised by the defendants is that the State failed to prove them guilty beyond a reasonable doubt. We do not agree. The complainant, Robert Treskow, identified the defendants as his assailants and did so unhesitantly and immediately upon entering the review room. While we have held that the confrontation procedure was unnecessarily suggestive, there existed a sufficient independent basis for the in-court identification. Treskow’s identification of the defendants was not doubtful, vague, or uncertain. In addition Hiere was the testimony of Officers Hilden and Freeburg that as the defendants approached the police car defendant Boyd dropped a packet of identification cards which bore Treskow’s name. Our supreme court stated in People v. Bennett, 3 Ill.2d 357, 363, 121 N.E.2d 595, 598-599 (1954):

“This court has often announced the rule that the possession of stolen property, the proceeds of a burglary or larceny, soon after the commission of the offense, is evidence of the guilt of the person or persons in whose possession it is found and is sufficient to warrant a conviction unless such possession is explained or unless there appears from all the evidence a reasonable doubt of the defendant’s guilt. (People v. Kasallis, 385 Ill. 158; People v. Sampson, 337 Ill. 643.)”

The possession of the stolen packet of identification cards was strong corroborating evidence and the possession was not explained at trial. We have thoroughly reviewed the record in this case and are of the opinion that the evidence is sufficient to prove tire defendants guilty beyond a reasonable doubt.

The final issue raised in this case is by defendant Boyd who maintains that his sentence of 3 to 6 years for robbery must be modified pursuant to the provisions of our Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.) The offense of robbery is a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 1(b).) Under the Unified Code of Corrections the maximum term for a Class 2 felony is any term in excess of 1 year but not exceeding 20 years. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b)(3).) The minimum term for a Class 2 felony is 1 year unless the court having regard to the nature and circumstances of the offense and the history and the character of the defendant sets a higher minimum term. However, if the court imposes a higher minimum term it cannot be greater than one-third of the maximum term set by the court. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3).) Accordingly, defendant Boyd’s minimum term of 3 years must be reduced to 2 year's. With the exception of reducing defendant Boyd’s sentence, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed and sentence modified.

BURMAN and JOHNSON, JJ., concur.

         The record contains two motions to suppress identification testimony. One is on behalf of Melvin Boyd and the other on behalf of Roy Richmond. However, both motions were signed by assistant public defender William J. Kunkle, Jr. It should also be noted that the trial court’s comments that the two motions to suppress were combined were not objected to by either assistant public defender. Both attorneys remained silent when these comments were made,


text:
    The People of the State of Illinois, Respondent-Appellee, v. Arthur Cokes, Petitioner-Appellant.
    (No. 59990;
    First District (3rd Division)
    September 19, 1974.

      Paul Bradley and Allen L. Wiederer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James B. Haddad, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lula Trapps, Defendant-Appellant.
    (No. 73-197;
    Third District
    October 11, 1974.

      Stephen Hurley, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James O. Christy, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant Lula Trapps was found guilty of theft in a nonjury trial and was sentenced by the Circuit Court of Peoria County to serve a term of 1 to 3 years imprisonment.

The defendant contends that the State did not prove beyond a reasonable doubt that she participated in the theft. She argues that all her actions can be explained on the theory of innocence. The State does not argue that defendant herself committed the theft; its position is that the evidence established that a theft was committed and that the defendant is legally accountable for the conduct of the actual thief. The State bases its case on the theory of accountability pursuant to section 5 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2) which provides in part, that

“A person is legally accountable for the conduct of another when: * * * (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

In order to bring the accused within the purview of the statute, three propositions must be established: (1) that she solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) that this participation on her part must have taken place either before or during the commission of the offense; and (3) that it must have been with the concurrent, specific intent to promote or facilitate the commission of the offense. (People v. Ramirez, 93 Ill.App.2d 404.) The nature of the defendant’s contention requires that the evidence be set out in some detail.

Jerome Short, a Peoria police officer, testified that he went to the J. C. Penney store pursuant to a call and there picked up Lawrence Conrad the assistant manager and the two drove to D. Schaffer South, a woman’s clothing store. While inside the store the officer saw two black females in the rear of the store. He left the store, parked his squad car across the street and waited about 60 to 90 seconds when Gwendolyn Wilson came out of the store carrying a large gray sack. She began walking east about 100 feet when she saw his squad car and then began to walk very fast, almost running. About 10 seconds later the defendant came out of the store and there was then about 40 feet between defendant and Gwendolyn Wilson. Defendant began walking east at a fast pace, she looked in the direction of the squad car and then waved and hollered something at Gwendolyn Wilson who then broke into a dead run and ran into the Central Illinois Light building. Gwendolyn Wilson had a pantsuit, priced at $200 with the D. Schaffer South label on it, in the sack she was carrying. Joseph Williams, another Peoria policeman, said he saw the defendant walking at a normal pace and waving at Gwendolyn Wilson, who was about 20 feet from defendant and whose pace then quickened. Defendant then ran across Liberty Street toward the Commercial National Bank. As she began to cross the street he exited his squad car and asked her to come over which she did. A subsequent search of her person revealed no property other than her own. She had over $100 cash in her purse.

Lawrence Conrad testified that he had seen both defendant and Gwendolyn Wilson in his store earlier that morning.

Florence Kreigshauser was working at the front of the D. Shaffer South store when defendant and Gwendolyn Wilson came in to see some coats. She took them to Mary Alice Cleerman, a saleslady in the rear of the store where coats were located. Gwendolyn Wilson had an empty paper sack folded under her arm. After Officer Short came in she walked back to Mrs. Cleerman and told her to watch the girls very carefully. Gwendolyn Wilson left the store alone shortly thereafter; the bag she had was no longer flat but bulging with something in it. The defendant left the store a minute or two later. Mrs. Kreigshauser identified the stolen pantsuit as having come from the store. It was a size 8 and its retail price was $200. She estimated Gwendolyn Wilson to be size 8; the defendant a size 16.

Maiy Alice Cleerman test'fied that she proceeded to show them coats. Defendant and Gwendolyn Wilson then separated but came back together. While they were looking at a rack of clothes one of them made a gesture described as a sort of opening and closing of a coat. She could not remember who made the gesture but later she said that the girls made no physical gesture to each other of any sort. Immediately after the gesture Gwendolyn Wilson went to the front of the store and out. Mrs. Cleerman then attempted to go to the front of the store in pursuit but was unable to get past the defendant who was moving down the racks and who detained her by “stepping gestures” pretending to be looting at things on the garment racks. She further testified that this encounter lasted from 30 seconds to a minute, the aisle was 2 to 2% feet wide; she was not physically held back nor did she ask to get by defendant. No overt action was taken by defendant against her. She then went to front of the shop where she saw defendant leave. On cross-examination she agreed that defendant “just looked from one rack to another rack” and that she had seen customers do that before as they sauntered out of the store.

The defendant testified that she saw Gwendolyn Wilson first on Adams Street that morning and the two of them went directly to D. Schaffer South. She denied having been in the J. G. Penney store earlier. She looked at some coats but didn’t try any on. She did not know that Gwendolyn Wilson was stealing a pantsuit nor did she aid or assist in the commission of the theft. When she left the store she headed for the bank to purchase a money order, she waved at Gwendolyn Wilson and said she was going to the bank and would see her later.

The prosecution hypothesizes (1) the gesture described as a sort of opening and closing of a coat, (2) the stepping gestures in the aisle, and (3) the waving at and yelling something to Gwendolyn Wilson, as conduct from which inferences may be drawn that defendant was aiding and abetting Gwendolyn Wilson in the commission of a theft.

It is unclear how (1) tends to incriminate the defendant when the witness could not remember who made tire gesture and in fact testified that the girls made no physical gestures toward each other of any sort.

As to (2) the witness obviously felt that she was being obstructed yet the State concedes in its brief that if the defendant had merely obstructed the way of Mrs. Cleerman for a few seconds, then let her by, perhaps the inference would not be so strong. Officer Short testified that the defendant came out of the store about 10 seconds after Gwendolyn Wilson and about 40 feet separated the girls. Officer Williams said only 20 feet separated the girls. It is clear that the obstruction, if any, must have been of very short duration and could not have lasted from 30 to 60 seconds. Further, no overt action was taken.

As to (3) the State contends that after the waving and vocal message from defendant the thief broke into a dead run. Officer Short testified that when the thief came out of the store she began waiting east about 10 feet when she saw his squad car and then began to walk very fast, almost running,

To sum up, the State’s entire case consisted of three ordinary occurrences, the movement of a coat, shuffling through clothing racks in a narrow aisle, and waving and yelling. While circumstantial evidence is

legal evidence, yet to warrant a conviction on such evidence the facts proved must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of innocence. Where an act may be attributed to a criminal or to an innocent cause it will be attributed to the innocent cause rather than to the criminal one. A crime is never presumed where the conditions may be explained on an innocent hypothesis. (People v. Benson, 19 Ill.2d 50, 61.) With all the evidence for the State considered it is not of that convincing character that satisfies the mind. On this record there is reasonable doubt of the guilt of defendant. Therefore, the judgment of the trial court is reversed.

Judgment reversed.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. LeRoy Foster, Defendant-Appellant.
    (No. 73-252;
    Third District
    October 11, 1974.

      Robert Agostinelli, of State Appellate Defenders Office, of Ottawa, for appellant.
    Richard Orloff, Assistant States Attorney, of Joliet, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Respondent, LeRoy Foster, appeals from an order of the Circuit Court of Will County by which he was adjudged to be a sexually dangerous person and which order directed his remandment to the custody of the Department of Corrections. On appeal there is no attack on the findings of the court but the contention made by the respondent is that the court lacked jurisdiction and that the governing statute (Ill. Rev. Stat. 1971, ch. 108, § 112 — since repealed) was unconstitutional.

From the record it appears that Foster was convicted in 1958 on two counts of rape and sentenced to 25 years in the penitentiary. As a result of new “good time” rules he was scheduled for discharge on April 3, 1972. Testimony of prison officials at the hearing conducted in the circuit court indicated that under normal and customary procedures, inmates were released at about 11 A.M. or 11:30 A.M. on the date of their proposed discharge. The supervisor testified that he was certain that such procedures were followed at the time respondent was to be released.

It appears that at 4:20 P.M. a petition was filed in the circuit court in Joliet alleg'ng that respondent was a sexually dangerous person and should be kept in the custody of the Department of Corrections until such time as his condition had subsided. The provision for such petition and procedures which followed were section 8 of “An Act in relation to the Illinois State Penitenfary” (Ill. Rev. Stat. 1971, ch. 108, § 112), which was later repealed by enactment of the Un'fied Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, § 1001 et seq.). Respondent was retained at the prison past the 11 or 11:30 A.M. time until around 5 P.M. He was told that he was required to appear in court on April 5, 2 days later. Respondent had planned to return home to Chicago but decided to stay in Joliet until the court date. He signed a waiver form allowing prison officials to keep him incarcerated for another 2 days. On April 5, 1972, respondent appeared in court and was served with a copy of the petition. Thereafter, he was examined by three court-appointed psychiatrists during a continued period of incarceration. On June 2, 1972, following a hearing, the trial court found him to be sexually dangerous and remanded him to the custody of the Department of Corrections.

On appeal in this court, respondent first contends that the trial court lacks jurisdiction to hear the case, contending that the petition was not filed until after the “scheduled time” for his release. We do not agree with that contention. There was no showing that a prisoner is required to be released at any particular time during the day fixed for his release. The statute governing the problems of convicts serving time for sexual crimes, who are nearing the end of their sentences, but appear to be suffering from some type of mental deficiency, are noted in section 8 of the Act. The portion which is relevant to the first issue before us provides: “Before any convict * * * is released upon the expiration of his sentence, the Department of Corrections may file with the Circuit Court * * * a petition in writing setting forth facts tending to show the convict is * * * a sexually dangerous person.” The petition filed under this section was then required to be filed before a convict is released at the end of his sentence. Foster argues in this court that he was “released” at about 11 A.M. or 11:30 A.M. and that the filing of the petition at 4:20 P.M. was too late. While the court should not condone unreasonable detention of persons past the time when they can be legally held by the authorities, there is nothing in the record to indicate that respondent or any inmate has any right to be released at a particular time on a scheduled day of discharge, or that the prison officials have a corresponding duty to release inmates at a certain time of day.

The Stateville officials were not bound to release Foster at any particular time on April 3, 1972. Foster was free to leave at 5 P.M. that day and his decision to stay in the prison for 2 more days was presumably for his own convenience. The delay was reasonable and Foster voluntarily decided to remain for the 2-day period until April 5 as we have indicated. The filing of the petition at 4:20 P.M. on the day of respondent’s release was also timely, since Foster had not in fact been released and the trial court had jurisdiction in the case. See People ex rel. Smith v. Jackson, 37 Ill.2d 379, 227 N.E.2d 366 (1967).

The second contention made by Foster is that section 8 of the Act was unconstitutional in that it denied him equal protection of the laws by providing different treatment and procedures for sexually dangerous inmates than for other classes of mentally deficient inmates that fall under the Act. The Act recognizes four classes of inmates, all of whom must have been convicted for sex crimes: (1) those mentally ill; (2) those in need of mental treatment; (3) those mentally deficient with continuing criminal propensities; and (4) those sexually dangerous. A “sexually dangerous” inmate is described as “any person not mentally ill or retarded, suffering from a mental disorder coupled with criminal propensities to the commission of sex offenses, and who has demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children.” That condition must be found to have existed for a year prior to the filing of the petition under the Act. The Act does not provide definitions for the other classes, however, nor does it provide for any minimum time limit for the existence of conditions as to such classes, which, if discriminatory, is in favor of sexually dangerous persons.

By the terms of the Act, inmates examined and found to be in one of the first three classes are to be committed to the Department of Mental Health upon the expiration of their sentences and thereafter fall under the provisions of the Mental Health Code (Ill. Rev. Stat. 1971, ch. 9F/2). Those found in the fourth class, sexually dangerous persons, however, are recommitted to the Department of Corrections. Respondent argues that this difference in treatment is without a rational basis and is grounded on an arbitrary classification. Wliile it is difficult for us to determine the difference, if any, among the four classes and possible justification for distinct treatment accorded to the sexually dangerous inmate, as opposed to other classes, and while the lack of statutory definitions for the other three classes does not help the analysis, we can discern a basis for classification which seems to have a rational foundation.

While the General Assembly may not legislate treatment simply by classifying, or arbitrarily discriminate against one in favor of another similarly situated, the applicable rule recently stated by the United States Supreme Court in Reed v. Reed, 404 U.S. 71, 75-76, 30 L.Ed.2d 225, 229, 92 S.Ct. 251 (1971), is as follows:

" this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. * * * The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."

With the principles recited in Reed v. Reed, 404 U.S. 71, 30 L.Ed.2d 225, 92 S.Ct. 251 (1971) in mind, we look first to the nature of the classifications. We note that those in the first three classes (the mentally ill, those in need of mental treatment, or those mentally deficient with criminal propensities) are treated together throughout the statute. Those in the fourth class, the sexually dangerous, are given a separate consideration in the areas of the Act now before us. As respondent points out, a rapist-murderer with continuing propensities to kill would fall under the third class and be committed to the Department of Mental Health for treatment under the Mental Health Code~ A rapist considered sexually dangerous is meanwhile remanded to the custody of the Department of Corrections. A basis for varying the dispositions in their cases is suggested by the State, and may be gleaned from the reports of the three examining psychiatrists in the instant case. All three determined that Foster was mentally disturbed but not in need of mental treatment, but that he needed institutional care and treatment provided by the Psychiatric Division of the Department of Corrections. The State thus argues that the legislature felt persons in the first three classes could benefit from a mental health program under the Department of Mental Health, while persons considered sexually dangerous could not. While the doctors' reports are not conclusive, they do show an apparent medical basis for such a legislative classification. On the basis of our analysis, we do not believe there is a violation of equal protection as to sexually dangerous persons arising from tire classification in the Act under consideration.

While respondent notes the “advantages” of treatment under the Mental Health Code he does not elaborate on what these advantages might be or how such treatment is significantly different from that received in the Department of Corrections. Certainly, it is apparent that the sexually dangerous inmate, like the inmates in the other three classes, is recommitted only after a judicial hearing with a right to a jury and counsel. Secondly, he is committed not to the normal pen'tentiary facilities along with other convicts, but to a facility under the Psychiatric Division especially reserved for the care and treatment of sexually dangerous persons. Additionally, he may at any time petition for his release on grounds of recovery and receive a further hearing on that question. The Department itself may also initiate such proceedings. Finally, these guarantees will be judicially enforced. (See People v. Shiro, 52 Ill.2d 279, 283 (1972).) We conclude, therefore, that despite the variation in classification, there appears to be no significant difference in the treatments accorded to inmates in the first three classes and those in the fourth class. There is no d fferent treatment, based on criteria unrelated to the purposes of the Act (to paraphrase the Reed v. Reed opinion), and, therefore, we conclude that there is no denial of equal protection in the dispositions provided for in the Act.

The remaining equal protection issue presents a more difficult problem. Respondent alleges that the Act requires final determination of a petition regarding an inmate in one of the first three classes to be made before the expiration of his sentence. There is no similar time limit for completion of proceedings regarding sexually dangerous inmates, although certainly a reasonable standard applies on a due process basis. (See People ex rel. Smith v. Jackson, 37 Ill.2d 379, 227 N.E 2d 366 (1987).) The Act under consideration is not clear, since it provides that an inmate found to be in one of the first three classes is committed to the Department of Mental Health “upon expiration of his sentence.” In People ex rel Smith v. Jackson, 37 Ill.2d 379, 227 N.E.2d 366 (1967), the majority rejected the argument, by an inmate, that proceedings under a sexually dangerous petition had to be completed by the time his sentence expired. The majority of the court did not specifically discuss the same equal protection issue raised here although it was expounded at some length by Mr. Justice Schaefer in his dissent. The majority of the court thereby obviously rejected this contention. The court in the Jackson case expressly held that proceedings could be reasonably prolonged for a year past the convict’s release date, at least where some delay was attributable to the convict. Presumably the Jackson opinion would be

authority for a conclusion that the same “reasonableness” test would apply to the completion of proceedings for inmates in the first three classes and would find no distinction unrelated to the object of the Act in the treatment accorded to those like respondent who are brought under the fourth class of sexually dangerous inmates.

On the basis of the precedent of People ex rel. Smith v. Jackson, supra, we find no constitutional infirmity in section 8 of the Act. We conclude, therefore, that respondent Foster was recommitted to the Department of Corrections in the Psychiatric Division in a procedure which does not violate his right to equal protection of the laws.

We find, accordingly, that the trial court had jurisdiction to consider the petition filed on the date fixed for Foster’s release. Notably, on the precedent of the Jackson case, we find that section 8 of the Act referred to was not unconstitutional on the basis of the challenge made by respondent. The determination and judgment of the Circuit Court of Will County, finding respondent to be sexually dangerous and remanding him to the Department of Corrections until such time as his condition is found to have been alleviated, is affirmed.

Affirmed.

A. SCOTT, P. J., and DIXON, J., concur.