author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Briggman, Defendant-Appellant.
    (No. 59206;
    First District (2nd Division)
    July 23, 1974.

      Paul Bradley, of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court.

Defendant, Clarence Briggman, was charged with aggravated battery causing great bodily harm (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4(a)), aggravated battery using a deadly weapon (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4(b)(1)) and armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2). After a jury trial he was found guilty on all three counts, and was sentenced to a term of 4 to 10 years on the count charging him with armed robbery. On appeal defendant contends that (1) the trial cotut erred in refusing the jury’s request to hear a certain portion of the testimony; (2) the prosecutor committed reversible error by reference to defendant’s prior illegal activity; (3) defendant’s guilt on the armed robbery charge was not proven beyond a reasonable doubt; and (4) both aggravated battery convictions arose from the same conduct.

At trial the following evidence was adduced. The complaining witness, Larry Koenig, testified that on June 11, 1972, at approximately 1:25 A.M., he left his home at 5734 North Winthrop Avenue, Chicago, IHIinois, to purchase a newspaper. As he walked south on Winthrop toward the elevated station at Bryn Mawr Avenue, defendant demanded money and hit Koenig once with a piece of lead pipe. Defendant reached into Koenig’s coat pocket and took approximately $12. Koenig was able to grab the pipe and a 7- or 8-minute struggle with defendant ensued. Defendant ran north and Koenig proceeded south on Winthrop to obtain aid. After Koenig had walked less than one block, defendant came up from behind and proceeded to hit Koenig 12 or 15 times in the face with a broomstick. This second struggle lasted 4 or 5 minutes, whereupon defendant fled again. The police arrived shortly thereafter,, and Koenig described his assailant. As Koenig was being driven to the hospital in the squad car, he observed defendant standing on the northwest comer of Bryn Mawr and Winthrop, and identified him as his attacker. Defendant was arrested approximately % of a block from the scene of the second assault.

Koenig, further testified that, during the entire incident, he observed defendant three times. He first noticed defendant when defendant was 5 to 6 feet away and was walking toward him. During the first scuffle Koenig viewed defendant face-to-face for 7 or 8 minutes. The area was illuminated by lights from surrounding apartments and from a street light 12 to 15 feet away. During the second scuffle, Koenig again observed defendant’s face. At this time Koenig was bleeding slightly, but his vision was unimpaired. He described the assailant to the police as “short, moustache, tan corduroy jacket, blue shirt, blue jeans, and scuffed-up shoes.” Defendant matched this description when he was identified by Koenig on Bryn Mawr.

On cross-examination Koenig testified that he wears glasses for reading. He recalled that there were very few persons on the street at the time of the incident, but lights in the apartments were on. Koenig stated that when he was struck he knew his nose was broken, but he was not in tremendous pain, and during the entire incident, he was not upset.

Chicago Police Officer David Sandlund testified that on June 11, 1972, at approximately 1:25 A.M., he responded to a radio call and proceeded to 5702 North Winthrop. He observed Larry Koenig standing in the street in a dazed condition, bleeding from Ms face and with bruises about his eyes. Koenig told him that he had been robbed and described the offender. Koenig was placed in the squad car to be transported to the hospital. While proceeding south on Winthrop, Koemg observed defendant and yelled “That’s the man.” When he was stopped and arrested, defendant was walking southbound and was at the northwest comer of Winthrop and Bryn Mawr. Defendant perfectly matched the description previously given by Koemg.

On cross-examination the officer testified that some apartment lights were on and that there were approximately 10 street lights on that block. No weapons were found on defendant’s person; he had in Ms possession at the time of his arrest $3.73. The officers attempted to search the area, but neither the pipe nor the broomstick was found. The officer testified that “empty fields” in the area made a thorough search difficult. However, keys and loose change were discovered in the grass at the location of the initial attack.

It was stipulated by the parties that if Koenig’s treating physician from Weiss Memorial Hospital were called to testify, he would state that in the early morning hours of June 11, 1972, he examined Larry Koemg and determined that he had suffered a fractured nasal bone and multiple lacerations of the face.

Defendant, Clarence Briggman, then testified that on the evemng of June 10, 1972, he had been at Bryn Mawr Beach. He spent the evening walking on the beach and talking to persons whom he knew from seeing there. Defendant was unable to name any of the persons he was with that evening. At approximately midnight he left the beach to return to Ms home at 4826 North Winthrop. He walked to Bryn Mawr and then turned south onto WintMop. At tMs point he was stopped by the police and arrested. Defendant stated that he stopped nowhere between the time he left the beach at midnight and the time of his arrest. He also denied ever previously seeing Larry Koenig or ever striking or robbing him.

After the jury had been instructed in the law, one of the jurors asked the trial court if he could ask a question. The court responded:

“No sir. You may return to the jury room. If there is a question and the foreman is elected you may write the question on a piece of paper and deliver it to tire bailiff. If it pertains to the case I will consider it. You may not get an answer, you will get a response, but you may not get an answer.”

During the deliberation of the jury, the trial court received a note from the jury which read:

What direction was defendant walking when he was arrested by the policemen as testified to by the policeman.

The court instructed the bailiff to “tell the jury there is no answer to the question.” The jury resumed deliberation and thereafter returned verdicts of guilty on all counts.

Two recent Illinois Supreme Court opinions, People v. Queen, 56 Ill.2d 560, 310 N.E.2d 166 and People v. Pierce, 56 Ill.2d 361, 308 N.E.2d 577, discuss the issue of a jury’s request to review testimony. Both opinions adopt the view that it is within the discretion of the trial court to allow or refuse a jury’s request to review testimony. The court in Pierce stated its reasons for adoption of this rule:

“The trial court will have a full knowledge of the case. It will know the charges against the accused, the witnesses and their supporting or defeating testimony and other evidence which may have been presented. It will be in a position to assess the request and judge whether a review of testimony, considering the circumstances, will be helpful or hurtful to the jury’s proper deliberations. This question of review, like so many others which appear in the course of trial, is best entrusted to the trial court’s sound discretion.” 56 Ill.2d 361, 364.

The court in Queen discussed a related issue and held that a statement by the court, in response to the jury’s request to rehear testimony, that it could not consider such a request constituted error. A court’s refusal to exercise discretion in the erroneous belief that it has no discretion as to the issue presented is error.

We have perused the record in the instant case, and we conclude that the trial court committed error in refusing the jury’s request. We are of the opinion that this refusal, coupled with the fact that apparently neither defendant nor his attorney was present in the courtroom during the communication with the jury, constitutes error which deprived defendant of his right to a fair trial.

As in other situations involving discretion of the trial court, a court of review wiH not disturb a decision within the trial court’s discretion absent a showing of abuse. People v. Pierce, supra. The court in Pierce found no abuse inasmuch as:

“A review of the testimony [requested by the jury] * * * discloses only testimony that is unequivocally incriminating and damaging to the defendant, who did not present any defense at trial. The jury had already reached two verdicts at the time of its request * * * and it is clear that the defendant’s attorney acted protectively and in the defendant’s interest in agreeing that the testimony * * * should not be reviewed for the jury. If it could be said on any ground that the trial court should not have refused the jury’s request, any consequent error was a species of harmless error, error which favored the defendant and of which he cannot complain. [Citations omitted.]” 56 Ill.2d 361, 364.

Upon our reading of the record in the instant case we are convinced that this situation is not analogous to that in Pierce. Here the jury requested the policeman’s testimony concerning the direction in which defendant was walking or facing at the time of his arrest. The questioning of the victim and of defendant at trial involved the route taken by the victim from his home to the elevated station at Bryn Mawr, the locations of the attacks and the route taken by defendant from Bryn Mawr Beach to his home. We cannot characterize the testimony requested by the jury as “insignificant” as does the State; rather we are convinced that a review of the requested testimony, considering the circumstances of this case, would have been crucial to the jury in its deliberation. This testimony was not “unequivocaHy incriminating” to defendant, as in Pierce, but, in fact, corroborated defendant’s testimony regarding his arrest. Moreover, the court’s ambiguous response to the jury may have unintentionally confused or misled the jury.

This error must be considered highly prejudicial when it is considered that neither defendant nor his attorney was present when this communication with the jury ensued. Apparently, the attorneys were granted leave by the court when the jury retired to deliberate, and were to be summoned to court when the verdicts were to be returned.

It is clear that an accused has an absolute right to be present at proceedings which involve his substantial rights. (People v. Mallett, 30 Ill.2d 136, 195 N.E.2d 687.) It has generally been held that the proper practice is to discuss the jury’s request with defendant’s counsel and the prosecutor prior to responding to that request. (People v. Harmon, 104 Ill.App.2d 294, 244 N.E.2d 358; People v. Longstreet, 2 Ill.App.3d 556, 276 N.E.2d 825.) In People v. Pierce, supra, defendant’s counsel was present during the communication with the jury, but defendant was not present. The court there held that:

“considering that the refusal of the jury’s request was in the defendant’s favor * # we judge it cannot be said that substantial rights of the defendant were affected by the trial court’s refusal. Even if it could be said that- substantial rights were involved and the refusal was error, the error was benign and the defendant will not now be heard to remonstrate.” 56 Ill.2d 361, 365.

Again, the situation in the case at bar is not analogous to that in Pierce. The court in Pierce recognized that in some instances concerning communication with the jury, substantial rights of an accused will be involved. Under the circumstances of this case, we are of the opinion that the communication with the jmy as to vital testimony affected the substantial rights of defendant, and that defendant was denied his right to be present at such a proceeding. People v. Harmon, supra.

The State relies on People v. Pulley, 11 Ill.App.3d 292, 297, 296 N.E. 2d 373, wherein the court found that “while the record seems to suggest that defendant’s attorney was present [during the communication with the jury], it clearly does not indicate that [defendant] was not present.” Further, the court indicated that a request concerning testimony, unlike a request concerning instructions of law, and a refusal of that request, are not grounds for reversal, even if “defendant’s attorney was not present.” (11 Ill.App.3d 292, 297.) In the case at bar, we reiterate that the testimony sought by the jury was obviously pertinent to their deliberations. We do not rely on Pulley. We conclude that the court erred in refusing the jury’s request to rehear a certain portion of the testimony, and that the court erred in communicating with the jmy outside the presence of defendant and his counsel. These errors resulted in a denial of defendant’s right to a fair trial.

It is clear that errors involving an accused’s constitutional rights will not require reversal where such errors are found to be harmless beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.) Once errors of constitutional magnitude have been established, the burden shifts to the State to prove beyond a reasonable doubt that the errors did not contribute to an accused’s conviction. (People v. Bracey, 51 Ill.2d 514, 283 N.E.2d 685.) Viewing all the evidence in the case at bar, we cannot say that the State has sustained its burden. Although defendant was arrested near the scene of the attacks only minutes after the attacks, the money taken from the victim was not recovered and was not in defendant’s possession, and the weapons wielded by the attacker were not found. In addition, the police officer testified that when he arrived at the scene, the victim was in a “dazed condition,” and was bleeding from the face. We therefore are not convinced that the evidence of defendant’s guilt was so overwhelming as to render the errors harmless beyond a reasonable doubt. Accordingly, we reverse defendant’s convictions and remand the cause for a new trial.

In view of our disposition of this case, we deem it necessary only to comment upon defendant’s second assignment of error: that he was unduly prejudiced by the prosecutor’s reference in his closing argument to defendant’s admission that on the night of the offenses “he had smoked some reefers.” On cross-examination defendant was asked whether he had been drinking on the beach. Defendant admitted drinking wine, and also volunteered the information that he had been smoking “reefers.” The following colloquy then ensued:

Prosecutor: You smoke a reefer?
Defendant: Yes.
Prosecutor: That is what is commonly referred to as marijuana?
Defendant: Yes.
Defense Counsel: Objection.
Court: Sustained.
Prosecutor: And drinking wine?
Defendant: Yes.

Near the conclusion of his closing argument the prosecutor made mention of defendant’s volunteered statement:

“Furthermore, he told you that he was drinking within that night, and that he had smoked some reefers. Could it be that he doesn’t remember what he did that night? * * *”

Initially, we note that no objection was raised to the prosecutor’s comment in his argument, and therefore any error may be deemed to have been waived. (People v. Tolefree, 14 Ill.App.3d 754, 303 N.E.2d 555.) However, this court may consider assignments of error as to seriously prejudicial arguments of counsel, even though no objection was made at trial. People v. Moore, 9 Ill.2d 224, 137 N.E.2d 246.

In any event, we are of the opinion that, under the circumstances, the prosecutor’s comment was proper. It is well settled that it is proper for a prosecutor to pursue a line of questioning which is initiated by a defendant. (People v. Bridgeforth, 51 Ill. 52, 281 N.E.2d 617.) Here defendant testified on direct examination as to his activities at the beach. The prosecutor pursued this line of questioning and inquired if defendant had been drinking. Defendant then volunteered the information that he had been smoking “reefers.” Once defendant volunteered such inform^tion, he assumed the risk that his testimony would be subject to elaboration by cross-examination or comment in closing argument. See People v. Sevastos, 117 Ill.App.2d 104, 252 N.E.2d 745; People v. Snell, 74 Ill.App.2d 12, 219 N.E.2d 554. While defendant’s volunteered statement may have been inadmissible if elicited by the prosecution, it is axiomatic that defendant cannot complain of testimony he volunteered. People v. Musinski, 22 Ill.2d 518, 177 N.E.2d 142; People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766; People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551.

Furthermore, we are of the opinion that the prosecutor’s question concerning marijuana was merely an attempt to clarify defendant’s volunteered statement, and was well within the scope of proper cross-examination. By a defendant’s testimony, as any other witness’, he opens himself to cross-examination on matters relevantly raised by that testimony. (People v. Sevastos, supra; see People v. Snell, supra.) We are of the opinion that the trial court improperly sustained defense counsel’s general objection to the question. Therefore, defendant’s testimony regarding his use of marijuana was properly in evidence, and was the proper subject of comment by the prosecutor in his closing argument.

In view of the foregoing, we need not consider defendant’s remaining assignments of error. The judgment of the trial court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

LEIGHTON and DOWNING, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Joseph L. Stokes, Petitioner-Appellant.
    (No. 57470;
    First District (4th Division)
    July 24, 1974.

      Aaron J. Kramer, of Chicago (Peter B, Loughman and Schiff, Hardin & Waite, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank Baumgart, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

deHvered the opinion of the court:

Petitioner, Joseph L. Stokes, was charged in three indictments with three burglaries and two counts of rape that took place during two of the burglaries. On February 14, 1968, petitioner, represented by Assistant Public Defender Paul Bradley, withdrew his plea of not guilty and entered a guilty plea to all the above charges. He was sentenced to concurrent terms of not less than 7 nor more than 12 years on each indictment. The next day he further pleaded guilty to a charge of attempted escape, receiving a sentence of not less than 1 nor more than 4 years, to run concurrently with the sentences on the above charges. A petition for post-conviction relief was filed on January 27, 1969. This petition was later amended with the assistance of counsel. The petition related solely to petitioner’s plea of guilty to the burglary and rape which was committed upon Ms. Melanie J. Hayes. The petition was dismissed without an evidentiary hearing on motion of the State, and petitioner appeals this order of dismissal.

Petitioner raises numerous contentions urging this court to reverse the order of dismissal, but we must first examine a threshold question before we consider the points he raises. A plea of guilty, made in a voluntary and understanding manner, operates as a waiver of all nonjurisdictional errors and defects. (People v. Brown, 41 Ill.2d 503, 244 N.E.2d 159; People v. Phelps, 51 Ill.2d 35, 280 N.E.2d 203; People v. Loy, 52 Ill.2d 126, 284 N.E.2d 634; and People v. Dunn, 52 Ill.2d 400, 288 N.E. 2d 463.) Since none of the errors at trial raised by petitioner are of a jurisdictional nature, we may only reach them for consideration on this appeal if we find that the guilty plea was not knowingly and voluntarily made. After careful examination of the record, we are of the opinion that the guilty plea in the instant case was knowingly and voluntarily made.

Petitioner asserts that his guilty plea was not knowingly and voluntarily made since, inter alia, he was denied his right to effective assistance of counsel in making the plea due to the incompetency of the assistant public defender appointed to represent him. As petitioner quite correctly points out in his brief, incompetence of trial counsel is a question of constitutional dimension and is cognizable in a proceeding under the Post-Conviction Hearing Act. (People v. Savage, 8 Ill.App.3d 162, 289 N.E.2d 460.) A defendant, to establish that his trial counsel was incompetent, must demonstrate the actual incompetence of counsel by his actions in carrying out his duties as the trial attorney which resulted in substantial prejudice to the defendant and without which the outcome would probably have been different. (See People v. Goerger, 52 Ill.2d 403, 288 N.E.2d 416, and the cases cited therein.) We have examined the conduct of petitioners trial counsel with the above criteria in mind, and we are of the opinion that the record does not establish incompetency of counsel. Quite the contrary, we find that Mr. Bradley, the trial counsel, was capable, conscientious and thorough in his representation of petitioner.

Petitioner urges that the incompetency of his appointed counsel is evident from the record primarily in that Mr. Bradley failed to investigate or discuss a statement made by Ms. Hayes to him that her attacker had a mole or birthmark on his stomach which she was able to see during the course of an oral sex act which she had been forced to perform. Mr. Bradley stated, in affidavits presented in connection with the instant petition, that his investigation and the evidence against Mr. Stokes was such that no “viable defense” was possible and he advised a guilty plea be entered. He believed that the testimony of the victim regarding the rapes and other acts or attempted acts would be highly inflammatory and prejudicial to his client. We are of the opinion that what petitioner now asserts as incompetency on Mr. Bradleys part was simply an exercise of his judgment as trial counsel as to matters of defense strategy. It is “well settled” that a review of the representation afforded by appointed counsel does not extend to matters of the “exercise of judgment, discretion or trial tactics” even where counsel on appeal or the reviewing court might have acted in a different manner. People v. Wesley, 30 Ill.2d 131, 136, 195 N.E.2d 708, citing People v. Kirkrand, 14 Ill.2d 86, 150 N.E.2d 788; People v. Robinson, 21 Ill.2d 30, 171 N.E.2d 11; People v. Hare, 25 Ill.2d 321, 185 N.E.2d 178, and People v. Anthony, 28 Ill.2d 65, 190 N.E.2d 837.

Petitioner further asserts that his guilty plea was not knowingly and voluntarily made since the State had withheld certain statements in its possession which may have helped establish his innocence and that “cruel and inhuman” conditions at the Cook County jail had affected him so as to render his plea coerced, unintelligent and unknowing. We find no merit in either argument. The statements in question were those of Ms. Hayes regarding the mole or birthmark. Petitioner’s trial counsel had spoken to Ms. Hayes and was aware of the same facts she told the police. Even if the question of whether these reports should have been turned over had not been waived by petitioner’s guilty plea, no prejudice resulted since the defense was already in possession of the information. Petitioner also alleges that the conditions he encountered in jail influenced his decision to plead guilty, but he has failed to demonstrate in what manner. It is not claimed that these conditions were specifically directed at him to force him to plead guilty or that he was ever persuaded to do so by jail personnel. Petitioner was given adequate time while in jail to consult with counsel and discuss whether or not to plead guilty to the charges. We cannot then say that his guilty plea was invalid as a result of conditions while in confinement.

Petitioner’s final point on appeal concerns the failure of the judge to allow a motion for a change of venue in the post-conviction proceedings. Petitioner moved for a change of venue alleging that the judge before whom petitioner’s case was to be heard, the Honorable Frank J. Wilson, was biased and prejudiced as to the facts alleged as grounds for relief in the post-conviction petition. The motion, and attached affidavit of counsel, noted that during a hearing on a petition for post-conviction relief filed on behalf of Willie Steward, and where incompetency of the very same assistant public defender was at issue, the following statement was made by Judge Wilson when he interrupted affiant’s argument:

“I’m going to stop all this right here. Paul Bradley was one of the best public defenders Cook County ever had. The petition will be denied.”

Petitioner argues that this comment established a bias on the part of the trial judge and that proper consideration of an allegation of incompetency against Mr. Bradley in the instant case would not be possible.

We disagree with petitioner. Petitioner, citing People v. Jenkins, 11 Ill.App.3d 690, 297 N.E.2d 279, is correct when he notes that the right to a change of venue in a post-conviction proceeding is not absolute. He argues, however, that in the instant case the failure of the trial judge to disqualify himself and the alleged bias noted above served to deny petitioner a fair hearing and his right to due process of law. Petitioner relies on the test stated in People v. Evans, 37 Ill.2d 27, 224 N.E.2d 778, to demonstrate that the trial judge abused his discretion in not granting the motion for a change of venue:

“To establish a constitutional violation within the purview of the Post-Conviction Hearing Act defendant would have to allege facts which, if true, would show that he was substantially prejudiced by the denial of his motion for substitution of judges. In other words, defendant must allege facts which demonstrate that the judge he seeks to have removed is actually prejudiced against him, and that the judge’s bias operated to deny him of his right to a fair trial.” (37 Ill.2d 30-31.)

Petitioner has completely failed to show that the trial judge was in fact prejudiced against petitioner in the instant case or that this alleged bias operated to deny him his right to a fair hearing. The statement attributed to the trial judge during a hearing on a different matter, the context of which we are unable to ascertain, does not show any prejudice against the petitioner or to his argument in the instant case. While petitioner would have this court accept that this statement demonstrates that the trial judge would not sustain any allegation of incompetency on the part of Mr. Bradley, the statement merely shows that the petitioner in that hearing had failed to demonstrate incompetency of counsel. Though the trial judge may have stated previously that he believed that Mr. Bradley had been “one of the best public defenders Cook County ever had,” he did not say he would refuse to consider an allegation of incompetency on his part. Further petitioner has not shown that the alleged bias of the trial judge operated to deny him a fair hearing in the instant case. We have read the entire record presented to this court and are of the opinion that petitioner received a full and fair hearing on his petition for post-conviction relief.

For the foregoing reason, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmie Walker, Defendant-Appellant.
    (No. 59024;
    First District (4th Division)
    July 24, 1974.

      Paul Bradley, of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Defendant was indicted on June 5, 1972, for the offense of armed robbery. On January 4, 1973, he withdrew his plea of not guilty and entered a plea of guilty to the charge of armed robbery. After accepting his plea, the court sentenced him to a term of not less than 4 years nor more than 4 years and 1 day.

The sole issue presented in this appeal is whether the trial court, in accepting defendant’s guilty plea, complied with the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, §402).

At the proceedings on the plea, defendant’s attorney represented to the court, in the presence of the defendant, that Walker wished to change his plea to the charge of armed robbery from not guilty to guilty.

The defendant indicated to the trial judge that the statement made by his counsel was correct. Defendant indicated, further, that he was aware of the penalty to which he may be subjected and that no other agreements or threats had induced him to plead guilty.

At this point, the following colloquy occurred:

THE COURT: Now you realize when you do plead guilty you automatically give up your right to a trial by jury. And you know what a jury trial is, 12 people listen to the witnesses that confront you in open court and listen to all of the evidence and the law and then decide whether you are guilty or innocent.
DEFENDANT: Yes.
THE COURT: And you want to give up that right?
DEFENDANT: Yes.

The People and defendant’s counsel then stipulated the facts upon which the charge was based. Following a recitation of those facts, defendant stated that he was pleading guilty to the charge of armed robbery because he was in fact guilty of that crime.

On appeal, defendant argues that the trial judge failed to comply with the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, § 402) in accepting his guilty plea. He contends that the trial court erred in failing to advise him of the nature of the charge against him, his right to persist in the plea of not guilty, and that he waived the right to a trial of any kind by pleading guilty.

Supreme Court Rule 402 itself states that substantial compliance with its terms is necessary in hearings on guilty pleas. Substantial compliance requires that the defendant be informed of his rights and the consequences of his plea so that it is knowingly and intelligently made. (People v. Shepard (1973), 10 Ill.App.3d 739, 295 N.E.2d 310; People v. Anderson (1973); 10 Ill.App.3d 558, 294 N.E.2d 763; People v. Mendoza (1971), 48 Ill.2d 371, 270 N.E.2d 30.) In reviewing the admonitions of the trial court to the defendant, a common-sense approach must be taken to determine whether there has been substantial compliance with the provisions of the rule. People v. Tennyson (1972), 9 Ill.App.3d 329, 292 N.E.2d 223; People v. Reed (1971), 3 Ill.App.3d 293, 278 N.E.2d 524.

Our examination of the record shows that the trial judge went to great lengths to insure that the defendant was aware of the consequences of his plea of guilty to armed robbery and that the plea was voluntary. The rule that a defendant understand the nature of the charge against him does not require the court to recite all the facts which constitute an offense. It is sufficient for the court to state to the accused the essence or general character of the offense. People v. Wright (1971), 2 Ill.App.3d 304, 275 N.E.2d 735; People v. Harden (1966), 78 Ill.App.2d 431, 222 N.E.2d 693, affd (1967), 38 Ill.2d 559, 232 N.E.2d 725.

In People v. Anderson (1973), 10 Ill.App.3d 558, 294 N.E.2d 763, the defendant was held to have been properly admonished pursuant to Supreme Court Rule 402 despite the failure of the trial court to admonish him of his right to persist in the plea of not guilty, his right to confront the witnesses against him, and his right against self-incrimination.

The record in the case at bar shows that the trial judge informed the defendant of the charge, advised him of his right to a jury trial and ascertained that he knowingly waived the jury. The court also advised defendant of the minimum and maximum sentence under his plea of guilty and, through the stipulation of facts, ascertained that there was a factual basis for the plea.

In our opinion, the proceedings at the hearing were in substantial compliance with Supreme Court Rule 402. (Ill. Rev. Stat. 1971, ch. 110A, § 402.) Accordingly, the judgment of the trial court is affirmed.

Affirmed.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE BARRETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnnie Miller, Defendant-Appellant.
    (No. 57907;
    First District (5th Division)
    July 26, 1974.

      David Lowell Slader, of Portland, Oregon, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Johnnie Miller, Eddie Ligón and Edward Dell Hooks were charged in a multiple-count indictment with the murder of Gilbert Burns and the aggravated battery of Robert Burns, in violation of sections 9 — 1 and 12 — 4 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, pars. 9 — 1, 12 — 4). The jury found all three men guilty of aggravated battery, and found Miller and Ligón guilty of murder; the murder charge as to Edward Hooks was dismissed for violation of the 120-day statute. The trial court sentenced Johnnie Miller to concurrent terms of 30 years to 60 years on the murder conviction and 7 to 10 years on the aggravated-battery conviction.

All three defendants prosecuted an appeal under a single general number. In People v. Ligon, 15 Ill.App.3d 746, 305 N.E.2d 212, this court affirmed the convictions of Ligón and Hooks and modified the sentences imposed on the aggravated-battery convictions to conform to the Unified Code of Corrections.

In his appeal, defendant Miller contends that he was denied the right to a speedy trial; that he was denied the right to a fair trial by reason of the introduction of incompetent and prejudicial evidence and the improper comment of the prosecutor; that the trial court improperly refused to instruct the jury on the elements of self-defense and manslaughter; and that the sentence imposed upon the murder conviction was excessive. The evidence adduced at trial is set forth at length in People v. Ligon and need not be repeated here.

OPINION

Defendant Miller contends that he was denied the right to a speedy trial because more than 120 days elapsed between the date of his incarceration and the date of his motion for discharge, without any delay having been caused by him in the proceedings, and that consequently the trial court erred in denying his motion for discharge filed pursuant to section 103 — 5 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 5). Defendant alleges that he was arrested and charged with the instant offenses on August 13, 1971, from which date he was held without bond; that at a hearing held on August 16, 1971, the matter was transferred to another branch of the Cook County felony court because the matter initially was improperly assigned to a branch that did not hear the type of felony here involved; that at the August 16 hearing his mother requested time to secure him an attorney; that the matter was continued to September 2, 1971; and that the continuance from August 16 to September 2 was not due to his mothers request for time to secure counsel but rather was due to the State’s improper assignment of the case to the wrong court, necessitating reassignment to the proper court.

We hold this contention is without merit. The following colloquy occurred at the hearing on August-16, 1971, resulting in the continuance to September 2, 1971:

“THE CLERK: Willie Caldwell, Johnny Miller. James Griffen, complainant.
COURT SERGEANT: Two defendants.
THE COURT: Yes, Willie Caldwell and Johnny Miller. Who is Willie Caldwell?
THE DEFENDANT CALDWELL: I am.
THE COURT: Johnny Miller?
THE DEFENDANT MILLER: Yes.
THE COURT: Do you have a lawyer, fellows?
A BYSTANDER: No. I would like to—
THE COURT: Who are you?
A BYSTANDER: I’m his mother.
THE COURT: Whose mother?
A BYSTANDER: Johnny Miller’s mother.
THE COURT: What do you want to say?
A BYSTANDER: I would like to have it continued to give me a chance to get a lawyer.
A BYSTANDER: Your Honor, I’m asking for the same opportunity. I’m Willie’s mother.
THE COURT: You want a continuance to get your boy a lawyer?
A BYSTANDER: Yes. .
THE COURT: Both boys are seventeen years old, is that correct?
A BYSTANDER: Yes.
A BYSTANDER: Yes.
THE COURT: The charge is murder. No bail. What date do you want?
A POLICE OFFICER: 23rd of September, your Honor?
THE COURT: Why don’t we put this in Branch 66? Do you have a date in Branch 66? Area 4.
A POLICE OFFICER: Yes, your Honor. How about 2 September?
THE COURT: September 2, Branch 66.
A POLICE OFFICER: Thank you, your Honor.
THE COURT: Explain to the parents what that is.
A POLICE OFFICER: Yes, I will.
(Whereupon, said cause was continued to September 2, 1971.)”

A continuance that is granted upon the request of a defendant for the purpose of retaining counsel will constitute such a delay in the proceedings chargeable to him as will toll the running of the 120-day statute. (People v. Jenkins, 101 Ill.App.2d 414, 417-420, 243 N.E.2d 259.) The questions that arise concerning the instant request for time to retain counsel — that the request was made by someone other than defendant and that defendant himself did not expressly join in that request or accede to the continuance — are obviated by the fact that defendant was a minor at the time and by the fact that the person making the request was his mother. In light of the foregoing, the continuance must be attributed to defendant and the trial court was correct in denying defendant’s motion for discharge. Merely because the matter had been assigned to one branch of the circuit court and then transferred to another in no manner delayed the proceedings nor worked to defendant’s prejudice; he desired time to secure private counsel in any event, and he succeeded in doing so. In fact, had the matter not been reassigned, defendant’s request for a continuance would have extended the proceedings another 3 weeks, since the record discloses that the date of September 23, 1971, was suggested for advancement of the matter before the September 2 date was settled upon.

Defendant further contends that during final summation to the jury, the prosecutor made a covert reference to defendant’s election not to testify at trial, and that the comment violated his right against self-incrimination and denied him a fair trial.

During the State’s opening argument, the prosecutor commented that the jury should consider the testimony of the eyewitnesses “who have not been impeached, have not been rebutted” in light of the defendants’ theories of the case, and in final summation he commented that when the jury considers the variations and “twists” in the testimony of the State’s witnesses they should also consider that the testimony of those witnesses went unrebutted. Later during final summation the prosecutor commented that the State’s witnesses were not the “caliber of people out on the street to witness crimes,” and that the State was “stuck” with them. He told the jury that they should “[k]eep in mind you did not hear from anybody who told you what happened that night except our witnesses.”

Defendant attacks the last comment as a covert reference to the fact that he did not take the stand in his own behalf. No objections to the statements were raised at trial, so any irregularities are deemed waived. (People v. Dailey, 51 Ill.2d 239, 282 N.E.2d 129.) Although this court will consider prejudicial arguments made without objection of counsel if as a result thereof the parties litigant cannot receive a fair trial, we do not consider the comments of counsel to fall within that rule. (People v. Dailey, 51 Ill.2d 239, 282 N.E.2d 129.) The State’s closing argument was not calculated to direct the jury’s attention to defendant’s failure to testify. Rather, it revolved around the allegedly uncontradicted nature of the State’s case, which provided overwhelming evidence of guilt.

Defendant also contends that he was denied a fair trial by the introduction of photographs of the scene, which allegedly improperly depicted bloodstains on the sidewalk. He argues that the photographs were introduced into evidence ostensibly to show where the offense had occurred, but in reality to show “the gruesomeness of the killing in graphic form.”

The photographs in question clearly do not support defendant’s contention. As noted by the trial court in overruling the defense objection to the introduction of the photographs, one cannot tell that the marks on the sidewalk are in fact bloodstains; there are not, as alleged by defendant, “pools of blood” on the pavement. Testimony had been elicited from the State’s witnesses prior to the introduction of the photographs that two buildings were involved in the incident and that the victims had been backed up against the wall of one of the buildings when the shooting started. It was within the discretion of the trial court to permit the introduction of the photographs of the scene to clarify that testimony. People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, cert, denied, 396 U.S. 1016 24 L.Ed.2d 507, 90 S.Ct. 578; People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208; People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297.

The testimony of State’s witness Janie Howell regarding the specific location of the bloodstains on the sidewalk was elicited after the photographs had been introduced into evidence and had been viewed by the jury. It did not render the photographs improper as evidence for the purpose for which they had been originally introduced. We note also that the photographs were submitted to the jury after defendant’s counsel specifically stated “no objection” thereto.

Defendant attacks the propriety of Charlotte Howell’s testimony that she had refused to speak to police and had left town after the incident because she was afraid. This testimony was elicited by the State in an attempt to rehabilitate the witness, after the defense had questioned her on cross-examination concerning the fact that she had refused to hold telephone conversations with the police after the incident. The defense opened this matter by attacking the credibility of the witness, and it was proper for the State to attempt to dispel any adverse connotation that it had created in the minds of the jury by establishing the true basis underlying the seemingly impeaching testimony. People v. Hampton, 24 Ill.2d 558, 561, 182 N.E.2d 698, cert, denied, 371 U.S. 868, 91 L.Ed 2d 105, 83 S. Ct. 131.

Defendant next contends that it was improper for the court to have refused his tendered instruction on self-defense, and that it was also error for the court not to have given, sua sponte, an instruction on manslaughter.

Where there is no evidence to support a particular defense, it is not error for the court to refuse to instruct the jury on that defense. (People v. Allen, 50 Ill.2d 280, 278 N.E.2d 762.) The only evidence that even remotely supports a theory of self-defense was the testimony of defense witness Easton, to the effect that a larger youth was wrestling with a youth dressed in yellow, when a third youth stepped from the crowd and fired a gun. Bastón also testified that at that point he fled the scene and observed nothing further. The jury could not have found from that evidence that defendant had in any manner acted in self-defense. The other evidence that connects defendant with the shootings clearly cannot be said to support a theory of self-defense, since it demonstrates that after the verbal confrontation between the Burns brothers and defendant had ceased, defendant attacked Gilbert Bums from behind and later shot him in the chest while the Bums brothers were backed against a wall and unarmed. The trial court properly held that there was no evidence tp support the instruction, on self-defense tendered by defendant,.

There was likewise no error in the failure of the court to give a manslaughter instruction. In the absence of a tender by the defense of such instruction the trial court is not required to so instruct the jury. People v. Taylor, 36 Ill.2d 483, 224 N.E.2d 266.

The final point raised by defendant is that the sentence imposed is excessive under the Unified Code'of Corrections. He limits his contention only to the minimum term imposed upon the murder conviction. The Code provides that “for murder, the minimum term shall be 14 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term." Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(c)(1).

Although defendants young age and his unblemished past record weigh in his favor, such factors have been held by this court not to be sufficient of themselves to warrant a reduction in the penalty imposed by the trial court. (People v. Jackson, 103 Ill.App.2d 209, 243 N.E.2d 551.) Rather, weighing heavily against defendant are his active participation in the commission of the offenses, the senselessness of the crime, and the apparent coldness with which he acted. The evidence discloses that defendant deliberately took the life of Gilbert Bums, who had been attempting to leave the scene of the confrontation, after voicing his intention to do so. Defendant shot Bums not once, but a second time as the victim fell to the ground. Upon sentencing defendant the trial court found that he had been “the shooter,” and the nature and circumstances of the offense support the court’s decision to sentence defendant to a 30-year minimum term.

Although defendant does not raise this contention on appeal, the sentence of 7 to 10 years imposed upon the aggravated-battery conviction is improper and should be reduced to conform to the requirements of the Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, pars. 12 — 4(d), 1005 — 8 — 1(c)(4).) Accordingly, the minimum sentence on the aggravated-battery conviction is reduced from 7 years to 3 years and 4 months, and, as so modified, the sentence is affirmed. Defendant’s murder sentence of 30 to 60 years is also affirmed.

In part affirmed.

In part affirmed as modified.

DRUCKER and LORENZ, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Manuel Johnson, Defendant-Appellant.
    (No. 58763;
    First District (5th Division)
    July 26, 1974.
    James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, of counsel), for appellant.
    Remard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William J. Haddad, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Pierce, Defendant-Appellant.
    (No. 59636;
    First District (5th Division)
    July 26, 1974.
    James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, of counsel), for appellant.
   PER CURIAM.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Barry Rand Elden, and Michael A. Tyrrell, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Chalmers, Defendant-Appellant.
    (No. 59702;
    First District (5th Division)
    July 26, 1974.
    James J. Doherty, Public Defender, of Chicago (Patrick Gleason and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

After a bench trial defendant was convicted of battery (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3) and delivery of a controlled substance (Ill. Rev. Stat. 1971, ch. 56V2, par. 1404). He was sentenced to a 6-month term on the battery conviction and to a 1-year term on the controlled-substances violation, the sentences to be served concurrently at the Vandalia State Farm.

Section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56V2, par, 1404) provides that:

“Except as authorized by this Act, it is unlawful for any person knowingly to deliver or possess with intent to deliver any substance which he represents to be a controlled substance. Any person who violates this Section is guilty of an offense and upon conviction shall be imprisoned in a penal institution other than the penitentiary for not more one year or in the penitentiary from one to 10 years, and fined not more than $15,000.”

On appeal defendant contends that this statute is unconstitutional in that it reposes unfettered discretion in the State’s Attorney to set the length of sentence for its violation.

At the outset we note that the constitutionality of this statute was not raised below and therefore we need not consider defendant’s contention on appeal. (People v. Eubank, 46 Ill.2d 383, 263 N.E.2d 869.) However, we feel that the ends of justice will be better served by reaching the merits of his contention. Cf. Bailey v. Bailey, 18 Ill.App.3d 152, 309 N.E.2d 328.

The record indicates that on September 24, 1972, Peter Liken and two companions were walking in the Old Town area of the city of Chicago. They were approached by defendánt who offered to sell them some “hash.” When they refused defendant’s repeated offers, he struck Liken in the chest and then stuffed a cellophane wrapped package into Likens pocket, demanding the payment of $15. Liken refused to pay, and defendant hit him again. At this point a police car arrived on the scene and defendant was arrested.

OPINION

It is defendant’s sole contention that under section 404 “different persons committing identical acts under identical circumstances could be convicted of different crimes, one given a misdemeanor sentence, the other a felony, at the whim of the State’s Attorney.” He argues that this delegation of authority to the prosecutor violates the principles of equal protection embodied in the fourteenth amendment of the United States Constitution and article I, section 2, of the Illinois Constitution.

In its recent decision in People v. McCollough, 57 Ill.2d 440, the Illinois Supreme Court rejected a similar challenge to the involuntary manslaughter-reckless homicide statute (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3). The appellate court in McCollough had ruled that section 9 — 3 of the Criminal Code of 1961 violated the equal protection clause of the Illinois Constitution “in that it places within the uncontrolled and unguided discretion of the State’s Attorney, the Grand Jury, and in some instances the trial judge or petit jury, the power to impose different degrees of punishment for different persons who commit identical acts under identical circumstances.” (People v. McCollough, 8 Ill.App.3d 963, 971, 291 N.E.2d 505.) In reversing this holding the Illinois Supreme Court stated at page 444:

“The contention that the statute grants undue discretion to the prosecutor in determining the offense for which he wiU prosecute is without merit. With respect to a similar contention, this court said in People v. Rhodes (1967), 38 Ill.2d 389, 396, in which the defendant had been convicted of attempted theft: ‘The defendant’s complaint that he should have been charged only with intimidation, which at the time of the events herein related was a misdemeanor, cannot be entertained. The State’s Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged.’ The kind of determination committed to the discretion of the State’s Attorney by the statute in this case is the same kind of discretion that is committed to him with respect to a host of other offenses, and is exercised by him every day. It is not, in our opinion, an unconstitutional delegation of authority.” See also People v. Morrissey, 52 Ill.2d 418, 420, 288 N.E.2d 397.

We beheve that this statement provides the proper guideline for our disposition of defendant’s contention, and therefore we affirm the judgment entered below.

Affirmed.

StiLLIVAN, P. J., and BARRETT, J., concur.

      The penalty provisions of this statute have been amended to bring them into conformance with the Unified Code of Corrections. Conviction for delivery of a controlled substance is now punishable as a Class 3 felony. Ill. Rev. Stat. 1973, ch. 56%, par. 1404.


text:
    The People of the State of Illinois, Plaintiff, v. Donald Mette, Defendant—( Robert H. Allphin, Director, Illinois Department of Revenue, et al., Contemnors-Appellants.)
    (No. 59827;
    First District (5th Division)
    July 26, 1974.

      Rehearing denied September 9, 1974.

    William J. Scott, Attorney General, of Springfield (James R. Zagel and John F. Podliska, Assistant Attorneys General, of counsel), for appellants.
    Edward G. Finnegan, Special Counsel, of Chicago, for the Peopla
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Robert Allphin, Director of the Illinois Department of Revenue, and Phillip Mitchell, Chief Investigator of the Department of Revenue, were held in contempt of court for their refusal to comply with an order directing the return of an automobile belonging to Donald Mette. They appeal contending that their conduct did not constitute contumacious behavior in that the court was without authority to issue the order.

On September 3, 1973, Mette was arrested and charged with the illegal transportation of cigarettes in violation of section 9c of the Cigarette Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 453.9c.) Twenty-five cartons of cigarettes that were in Mette’s possession and his 1973 Buick automobile were seized. On September 26, 1973, pursuant to the prescriptions of the Cigarette Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 453.1 et seq.), the Department of Revenue conducted a hearing to determine whether Mette’s car should be confiscated. Mette was also the subject of a criminal prosecution brought under the same act. At oral argument counsel for contemnors stated that the assistant attorney general in charge of the criminal proceeding was unaware of the contemporaneous administrative action. On September 27, 1973, the State entered a nolle prosequi of the criminal case. Mette requested an order for the return of his car and, pursuant to this request, the court on September 28 ordered “[t]hat the 1973 Buick, Ltd. automobile, Serial No. 4V-39-T-3H-46978, Illinois registration No. HK 8698 presently impounded by the State be immediately restored to Donald Mette.” It appears that the State challenged the jurisdiction of the court to issue this order and indicated that it would be appealed. Although an appeal bond of $5000 was set, no appeal was taken from that order.

Mette sought the return of his car and was refused. On October 3 he filed a petition for a rule to show cause why AHphin and Mitchell should not be held in contempt of court, citing as grounds therefor their refusal to return the car. Mette also requested and received from the court an order of restitution directed to the sheriff of Cook County in whose possession the car had been placed. Before this order was served the auto was removed to a State-owned garage.

On October 10 the Department of Revenue ordered that the car be forfeited. The same day the State filed a motion to vacate the court’s orders of September 28 and October 3, reiterating its assertion that the court lacked jurisdiction to issue them. On October 15 the court overruled the motion to vacate and gave contemnors until October 22 to answer the rule to show cause. No answer was filed. On October 22 the court ordered that Allphin and Mitchell be held in contempt of court and fined them each $6500. In addition, it was “further ordered by agreement [that the] automobile in question be forthwith returned to Defendant upon executing a Recognizance Bond in the amount of SIXTY FIVE HUNDRED DOLLARS ($6,500.00) without surety * * *.’’ In seeking review the State filed a notice of appeal solely from “the orders entered by Judge Nicholas J. Bohling, on October 22, 1973, adjudicating Robert Allphin and Phillip Mitchell in contempt of Court and finding [sic] each $6500.00, and the order requesting the return of a certain automobile to Donald Mette.”

OPINION

Contemnors were held to be in' contempt of court in that they knowingly resisted the execution of the orders of the court below directing the return of Mette’s automobile. We note, however, that the court’s order of September 28 was not directed to any specific person or persons. Furthermore, the record does not indicate that contemnors were in court at the time the order was issued or that any explanation of the intended scope of the order was given. We therefore believe that due to this vagueness in the September 28 order, contemnors’ failure to comply with its terms did not constitute contempt of court.

Mette filed a supplement to his petition for a rule to show cause in which he alleged malfeasance on the part of contemnors due to their actions with regard to the order of restitution issued on October 3. Mette claims that after he served contemnors with this order, they removed the car from the custody of the sheriff and placed it in a State-owned garage. We believe that, this does not constitute contumacious behavior. There is no indication in the record that the removal of the auto was intended to thwart Mette’s attempts to regain possession of it. Moreover, since the restitution order was directed to the sheriff of Cook County and not to them, contemnors were not obliged to return the car to Mette.

We therefore reverse the order citing contemnors for contempt of court.

Reversed.

SULLIVAN, P. J.; and LORENZ, J., concur.

       Ill. Rev. Stat. 1971, ch. 120, par. 453.9c, provides in pertinent part that:
      “Any transporter desiring to possess or acquire for transportation or transport upon the highways, roads or streets of this State more than 2000 cigarettes which are not contained in original packages that are Illinois tax stamped shall obtain a permit from the Department authorizing such transporter to possess or acquire for transportation or transport the cigarettes, and he shall have the permit in the transporting vehicle during the period of transportation of the cigarettes. * * *
      Any cigarettes transported on the highways, roads or streets of this State under conditions which violate any requirement of this Section, and the vehicle containing such cigarettes, are subject to seizure by the Department, and to confiscation and forfeiture * * * as provided for in Section 18a of this Act. * * *
      Any person who violates any requirement of this Section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000, or be imprisoned in a penal institution other than the penitentiary for not more than one year, or be both so fined and imprisoned, in the discretion of the court.”

       The transcripts of the hearing held below were not made part of the record for review.

         At oral argument it was represented that judicial review of this administrative order was being pursued.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Sol Gault, Defendant-Appellee.
    (No. 59603;
    First District (2nd Division)
    July 30, 1974.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
    Claire I. Rosen and Sinclair Kossoff, both of Edes and Rosen, of Chicago, for appellee.
   PER CURIAM:

The defendant, Sol Gault, was charged in a complaint filed February 13, 1973, with battery in violation of Section 12 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3), in that on July 22, 1972, he intentionally and without legal justification struck the complainant, Edward C. Thompson, causing him bodily harm. At trial on July 30, 1973, the court, on motion of the defendant, dismissed the complaint, reasoning that since an earlier city charge of disorderly conduct had been dismissed on Februaiy 1, 1973, on motion of the city attorney and was based on the same facts, subsequent prosecution by the State would place the defendant twice in jeopardy. (Ill. Rev. Stat. 1971, ch. 38, par. 3 — 4.) The State has brought this appeal under Supreme Court Rule 604(a) (Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)), contending that the State prosecution was not barred because jeopardy had not attached when the city charge was dismissed.

In dismissing the battery charge, the trial court stated that its decision was based on section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 3 — 4) and on the decision of the United States Supreme Court in Waller v. Florida, 397 U.S. 387, 25 L.Ed.2d 435, 90 S.Ct. 1184, which had held that “successive prosecutions for the same offense by a State and by a municipality within that State are prohibited by the double jeopardy clause” (People v. Allison, 46 Ill.2d 147, 149, 263 N.E.2d 80). The State contends that Waller is not applicable here, since jeopardy does not attach in a bench trial until the court has begun to hear evidence; and that a nonsuit prior to trial, by itself, does not place the defendant in jeopardy. (People v. Laws, 29 Ill.2d 221, 224, 193 N.E. 2d 806.) After examining the precedents in some detail, the court in People v. Jackson, 132 Ill.App.2d 1059, 1063-1064, 271 N.E.2d 673, concluded:

“A dismissal of [sic] a nolle prosequi is not a final disposition of a prosecution and if entered before jeopardy attaches, will not bar further prosecution for the same offense. (People v. Piatt, 35 Ill.2d 72; 219 N.E.2d 481.) * * *
# # #
“* # * We have examined the cases collected in 9 A.L.R.Sd 203, 147 A.L.R. 991, and the notes of the United States Supreme Court cases hereinafter mentioned. In none have we found an instance where the doctrine of res judicata was not related to a conviction or an acquittal or its equivalent, i.e., a direct verdict, a discharge under the 120 day rule, or a dismissal upon a plea of the Statute of Limitations.”

Likewise, in the case before us, since there was no conviction or acquittal or its equivalent, the subsequent State prosecution of the defendant did not twice place him in jeopardy.

Defendant also argues that it would be fundamentally unfair to allow the State to prosecute him now since he agreed to the nonsuit of the cross-complaints of disorderly conduct only on the understanding that it would end the matter. The complaint, it is contended, thereby either waived his right to file a battery complaint or is estopped from doing so. (The record shows that the complainant did object to the dismissal.) In People v. Garcia, 7 Ill.App.3d 742, 747, 288 N.E.2d 637, the court held that a nolle prosequi of a burglary charge, entered before jeopardy had attached, does not prevent a subsequent prosecution for the same offense since the nolle prosequi “leaves the matter in the same condition as before the prosecution.” If voluntary dismissal of a State charge by the State cannot bar a subsequent prosecution, an agreement by a city prosecutor or a private citizen cannot.

Therefore, the judgment of the Circuit Court of Cook County granting the motion to dismiss is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

HAYES, J., took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jeffery W. King (Impleaded), Defendant-Appellant.
    (No. 56926;
    First District (3rd Division)
    August 1, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DEMPSEY, J., took no part.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Chables Carnivale et al., Defendants-Appellees.
    (Nos. 57677-85 cons.;
    First District (3rd Division)
    August 1, 1974.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, John M. Cutrone, and Ricky Petrone, Assistant State’s Attorneys, of counsel), for the People.

      Sherman C. Magidson, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

The State, pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1)), appeals from an order of the circuit court of Cook County sustaining defendants’ pretrial motion to quash their arrests and suppress the evidence seized incident to those arrests. The arrests of the three defendants, Charles Pappas, Nicholas Pappas, and Charles Camivale, occurred in the city of Rosemont, and resulted from the execution of search warrants directed against the latter two defendants by Chicago police officers. The arrest and search of Charles Pappas was not predicated upon the issuance of any warrant. Defendants were subsequently charged with the offenses of gambling, syndicated gambling, and being keeper of bets. The court found that no probable cause existed to justify the arrest of Charles Pappas, and that the Chicago police officers were not empowered by statute to execute the search warrants on the other two defendants outside the officers’ territorial jurisdiction. The following facts were adduced at the hearing on defendants’ motion.

Officer Nicolas Aron of the Chicago Police Department, the sole State’s witness, testified that on July 21, 1971, he was armed with search warrants authorizing him to search the persons and automobiles of Camivale and Nicholas Pappas, who were believed to be engaged in illegal gambling activities. The warrants had been issued to two police officers in the city of Chicago. On July 21, Aron observed Camivale in an automobile turn off Harlem Avenue in the Village of Forest Park and enter the westbound lane leading to the Congress Expressway. Aron, dressed in plain clothes, followed him onto the expressway in an unmarked squad car.

Aron further testified that he attempted to overtake Camivale on the expressway to execute the search warrant, but that he was unable to do so due to very heavy traffic and to the driving speed of Camivale. Consequently, Aron and other Chicago police officers driving in a second unmarked squad car summoned by Aron were content to trail defendant on the expressway, and they followed him off the exit ramp at Mannheim Road. The witness stated that he again unsuccessfully attempted to overtake Camivale during the approximately mile-and-a-half drive north on Mannheim Road to the Sheraton Motor Hotel. Officer Aron stated that he had observed Camivale park his auto in the hotel parking lot and meet Nicholas Pappas in the same lot. The two men walked together to the hotel entrance, where they were joined by. Charles Pappas.. The three defendants then entered the hotel.

Officer Aron estimated that 1 or 2 minutes later he and three other Chicago police officers followed the defendants into the lobby. According to the witness, defendants were standing in the lobby about 25 yards away from the police officers near three to five public telephones. The police officers walked up to the men, executed the two search warrants, arid arrested and searched Charles Pappas without a warrant. The searches yielded evidence the State intended to introduce at trial.

On cross-examination, the witness stated that he had recognized Camivale in Forest Park when he was a half block behind Carnivale’s auto. He was able to see that Camivale was riding alone. Officer Aron was unable to recall the number or location of traffic lights and stop signs on Mannheim Road from Congress Expressway to the hotel entrance.

Camivale testified at the hearing that he had taken the Northwest, not the Congress, Expressway to reach the hotel. He also testified that he had been in the hotel for at least an hour before his arrest and that he had eaten breakfast there.

Nicholas Pappas testified that he had been in the hotel for at least half an hour before the police entered and arrested him. He stated that when the police entered he was not standing near telephones, but was in the middle of the lobby looking at a demonstration. Camivale was standing 10 feet away from him and his brother Charles was walking out the lobby door.

Charles Pappas testified that he had been in the hotel for at least half an hour before his arrest, and that he too had been in the coffee shop. He was arrested when he was exiting the hotel lobby.

At the conclusion of the testimony, the court sustained defendants’ motion to quash the arrests and suppress the evidence seized “based on the law and all of the evidence.” The court then granted the State’s motion to strike the cause with leave to reinstate.

We shall consider initially that portion of the court’s order quashing the warrantless arrest of Charles Pappas for lack of probable cause. The testimony on this issue is very brief. Officer Aron testified that he and other Chicago police officers followed Charles Pappas and the other two defendants into the hotel lobby within a couple of minutes of their entrance. He further stated that when he entered the lobby, he observed the three men standing approximately 25 yards away from them near three to five public telephones. The officer immediately walked up and arrested Charles Pappas. Although Charles Pappas denied the officer’s account of the length of time from his entrance into the hotel to the time of his arrest and of his location in the hotel when arrested, it is clear that Officer Aron’s testimony even if true is totally insufficient to show probable cause justifying Charles Pappas’ arrest.

A police officer is justified in arresting a person without a warrant if he has reasonable grounds to believe the suspect is committing or has committed an offense. (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c).) The test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer’s attention would believe the person to be arrested is guilty of the crime. People v. Harper (1973), 16 Ill.App.3d 252, 305 N.E.2d 680.

Not a shred of evidence was produced by the State indicating that there was a probability that Charles Pappas was committing or had committed a crime at the time of his arrest. Indeed one cannot even characterize the defendant’s conduct as suspicious. The only facts, if believed, that the State could establish were that the accused was standing near two suspected gamblers, one his brother, in the vicinity of several public telephones. The court correctly ordered the arrest of Charles Pappas quashed and the fruits of the search suppressed.

The State’s next contention is that the court erred in quashing the arrests of the other two defendants. It argues that the Chicago pofice officers were empowered to enter another municipality to execute these search warrants upon the authority of two statutes, which read as foHows:

“The territory which is embraced within the corporate limits of adjoining municipafities within any county in this State shall be a police district.” (Ill. Rev. Stat. 1971, ch. 24, par. 7 — 4 — 7.) “The police of any municipafity in such a pofice district may go into any part of the district to suppress a riot, to preserve the peace, and to protect the fives, rights, and property of citizens. For these purposes the mayor of any municipality in the district, and the chiefs of police therein, shaU use the pofice forces under their control anywhere in the district.” Ill. Rev. Stat. 1971, ch. 24, par. 7 — 4 — 8.

Cities are creatures of the legislature, deriving their existence and powers therefrom. Consequently, statutes granting powers to municipal corporations shall be strictly construed. (Barnard & Miller v. City of Chicago (1925), 316 Ill. 519, 147 N.E. 384.) An inherent and implied limitation upon any city in the exercise of the powers delegated to it by the legislature is that such powers will be exercised within the corporate boundaries of the municipafity. (City of Rockford v. Hey (1937), 366 Ill. 526, 9 N.E.2d 317.) A municipafity will not possess extraterritorial jurisdiction, even with regard to its pofice powers, unless it is plain that such jurisdiction has been expressly or implicitly delegated to it by statute. City of Des Plaines v. Boeckenhauer (1943), 383 Ill. 475, 50 N.E.2d 483; City of Chicago v. Brent (1934), 356 Ill. 40, 190 N.E. 97.

We take judicial notice that the cities of Chicago and Rosemont are on territory “embraced within the corporate limits of adjoining municipalities” in the County of Cook. Hence, in accordance with section 7 — 4 — 7 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 7 — 4 — 7), the cities are located in the same police district. We next must determine if any of the provisions of section 7 — 4 — 8 of the Illinois Municipal Code have been satisfied in the present case to justify the reach of the city of Chicago’s police powers into the city of Rosemont.

The clear import of section 7 — 4 — 8 is to authorize in certain emergencies the police of one municipality to act in their official capacity in another municipality within the same police district. The provision carefully recites the specific types of occurrences which will trigger the extraterritorial police power of a municipality. However, the facts adduced at the present hearing do not remotely approach fulfillment of any of the conditions set out in that section of the statute. No testimony was offered suggesting that a “riot” was taking place in Rosemont, or that the “peace” of the city had been shattered, or that the accused had endangered any “lives,” abridged any person’s “rights,” or disrupted, destroyed, or claimed any person’s “property” in that city.

The State rests its total position on People v. Harvey (1964), 48 Ill. App.2d 261, 199 N.E.2d 236. In that case Chicago police officers arrested defendant for the burglary of a Chicago gas station and charged him with that crime. The officers proceeded later that same day to defendant’s residence located in the village of Rridgeview, informed his wife of what had transpired, and requested permission to search the home for fruits of the crime. His wife gave her consent, and the search uncovered two checks taken in the burglary. This court found that the trial court had erred in suppressing the evidence obtained in the search, holding that the consent search by Chicago police officers in a different municipality in the same police district was authorized since it was “within their powers to seek and protect the property taken in the commission of a crime.”

Unlike the present case, Harvey satisfied one of the provisions of section 7 — 4 — 8, namely the need to protect the property of others. Defendant was believed to have committed a burglary. The proceeds of the crime were not found on his person. It was reasonable for the police to conclude that the stolen property might be concealed in defendant’s home, and that it was .necessary to quicldy seize the property to prevent its destruction. Consequently, Harvey does not control the instant case. Therefore, it is eminently clear that the trial court properly held that section 7 — 4 — 8 had not been complied with so as to justify the extraterritorial actions taken by the Chicago police officers against Carnivale and Nicholas Pappas.

In its brief the State notes in passing the possible applicability of the hot-pursuit doctrine in regard to Carnivale. Hot pursuit is defined as the immediate pursuit of a person who is endeavoring to avoid arrest, (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 4(3).) In Illinois a statute provides that the issuance of a valid arrest warrant will justify any police officer in the state to execute that arrest warrant in any county of the State regardless of the existence of fresh pursuit. (Rev. Stat. 1874, ch. 38, par. 352, presently codified in Ill. Rev. Stat. 1971, ch. 38, par. 107 — 9(e).) The hot-pursuit doctrine is adhered to regarding a warrantless arrest situation involving different municipalities in this State. (Kindred v. Stitt (1869), 51 Ill. 401; Taylor v. City of Berwyn (1938), 297 Ill.App. 417, 17 N.E.2d 1007.) The hot-pursuit doctrine is also applicable to a police officer of another State entering the territorial boundaries of this State. Ill. Rev. Stat. 1971, ch. 38, par. 107 — 4(3) (b).

No Illinois case has addressed itself to the question as to whether a police officer of one municipality in this State, upon a showing of hot pursuit, will be entitled to execute a search warrant directed against a fleeing suspect in a different municipality. However, we need not reach that issue. The record reveals that the trial judge did not believe that Carnivale was fleeing in an attempt to avoid the police or that Officer Aron was in immediate pursuit of Carnivale. We concur in both those beliefs. Carnivale was not speedily exiting the city limits of Chicago in hopes of reaching the safe confines of Rosemont. To the contrary, Officer Aron stated that he first observed Carnivale in his auto in the village of Forest Park. The officer did not even imply that he had pursued Carnivale out of Chicago. Moreover, there is no indication in the record that Carnivale had any knowledge that he was being followed by two unmarked police cars containing plainclothes officers, or that Carnivale attempted to avoid pursuit. The trial court was perfectly justified in finding that fresh pursuit of Carnivale did not exist.

For all the reasons stated, the order of the circuit court of Cook County quashing the defendants’ arrests and suppressing the evidence seized incident to those arrests is affirmed.

Order affirmed.

DEMPSEY and McGLOON, JJ., concur.


text:
    The People ex rel. Robert Lance, Relator-Appellant, v. Richard Elrod, Sheriff of Cook County, Respondent-Appellee.
    (No. 58501;
    First District (3rd Division)
    August 1, 1974.
    Patrick J. Reilly, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People..
   PER CURIAM.

MEJDA, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward J. Casey, Jr., Defendant-Appellant.
    (No. 59161;
    First District (3rd Division)
    August 1, 1974.
    Edward S. Richman, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

MEJDA, J., took no part.


text:
    The People ex rel. Robert Cook, Relator-Appellant, v. John J. Twomey, Warden, Illinois State Penitentiary at Joliet, Respondent-Appellee.
    (No. 59655;
    First District (3rd Division)
    August 1, 1974.
    Paul Bradley and Howard B. Augustus, both of State Appellate Defenders Office, of Chicago, for appellant.
   PER CURIAM.

MEJDA, J., took no part.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Linda West Conley, Assistant State’s Attorneys, of counsel), for appellee.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Weight, a/k/a James E. Council (Impleaded), Defendant-Appellant.
    (No. 58971;
    First District (2nd Division)
    August 6, 1974.
    James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael B. Kuknyo, a/k/a Robert C. Holman, Defendant-Appellant.
    (No. 59438;
    First District (2nd Division)
    August 6, 1974.
    No appearance for appellant.
    No appearance for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Jackson, Defendant-Appellant.
    (No. 59570;
    First District (2nd Division)
    August 6, 1974.
    James J. Doherty, Public Defender, of Chicago (Daniel Miranda, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Alan L. Fulkerson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Jones, Defendant-Appellant.
    (No. 59102;
    First District (5th Division)
    August 9, 1974.

      James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, and Shelvin Singer, Professor, LI.T.-Chicago-Kent College of Law, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant was convicted of the armed robbery of Jackie Allen and Tyrone McClinton in violation of section 18 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2) and was sentenced to a term of 4 to 12 years. On appeal defendant contends that: (1) section 2 — 7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7(1)) denied him equal protection of the laws; and (2) the maximum sentence imposed by the court was excessive.

The facts of the case are clear. At about 1:30 A.M. on August 12,1972, defendant, who was armed and was not wearing a mask, ordered Jackie Allen, Eugene Allen, and Tyrone McClinton to stop and he took some money from both Jackie and McClinton. The occurrence was observed by Bayne Pitts, whom defendant had also robbed. Defendant was arrested and identified. After hearing the evidence, the trial judge found defendant guilty as charged. Defendant was 17 years of age. In view of defendant’s age, the judge expressed an intent to give defendant the minimum sentence for the crimes and to follow the A.B.A.’s recommended one-third spread between minimum and maximum sentences. The court sentenced defendant to a term of 4 to 12 years.

Defendant first contends that section 2 — 7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7(1)) denied him equal protection of the laws. At the time of the offenses, section 2 — 7(1) provided:

“Except as provided in this Section, no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.” (Emphasis added.)

Defendant, who was seventeen at the time of the alleged offense, complains that the fact that 17-year-old girls are treated as juveniles, but that 17-year-old boys are treated as adults deprived him of equal protection of the law.

This question has been resolved by the supreme court in People v. Ellis, 57 Ill.2d 127, 134, 311 N.E.2d 98. The court, noting that section 2 — 7 of the Juvenile Court Act has been amended, effective January 1, 1973, to provide equal treatment for boys and girls, stated:

“In view of the constitutional provision, and the amendment to section 2 — 7(1), we conclude that the effect of the deletion of the invalid classification from the statute is to render the statute inapplicable to both males and females who are not ‘under the age of 17 years,’ and that the failure to consider defendant eligible for treatment as a minor under its provisions did not deprive him of equal protection of the laws.”

In view of the holding in Ellis, we cannot say that defendant was deprived of equal protection of the laws.

Defendant also contends the maximum sentence imposed by the court was excessive. Armed robbery is a Class 1 felony. (See Ill. Rev. Stat. 1973, ch. 38, par. 18 — 2.) The minimum sentence for such crimes is 4 years (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(c)(2)) and the maximum is any term in excess of 4 years. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(b)(2).) The judge in the instant case stated that he was going to give defendant the minimum sentence for the crimes he committed. Pursuant to section 5 — 8 — 1(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(c)(2)), he could have sentenced defendant to a term in excess of the minimum. The judge decided to follow the A.B.A.’s recommendation regarding a one-third spread between minimum and maximum terms and therefore sentenced defendant to a term of 4 to 12 years. The purpose of this one-third spread is to permit the most effective rehabilitation of those convicted. In view of the circumstances of the instant crimes, we cannot say that the trial judge abused his discretion in following the A.B.A.’s recommendation.

Therefore, the judgment is affirmed.

Affirmed.

SULLIVAN, P. J., and BARRETT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Simental, Defendant-Appellant.
    (No. 59722;
    First District (5th Division)
    August 9, 1974.
    Robert I. Briskman, of Chicago (Torme, Horwich & Briskman, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Norman M. Bivens, a/k/a Buddy Bivens, Defendant-Appellant.
    (No. 59662;
    First District (2nd Division)
    August 13, 1974.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Paul T. Foxgrover and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and Francine Stewart Soliunas, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Chester Holiday, Defendant-Appellant.
    (No. 57965;
    First District (2nd Division)
    August 6, 1974.

      James J. Doherty, Public Defender, of Chicago (Ronald P. Katz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Patricia C. Bobb, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This is an appeal from judgments that sentenced the defendant, Chester Holiday, to serve four penitentiary terms, three for voluntary manslaughter and one for attempt to commit armed robbery. The only issue he presents is whether, on the facts of this case, the trial court erred in imposing multiple and concurrent sentences.

In April 1972, the grand jury of Cook County returned a four-count indictment against defendant and a co-defendant, Ronnie Allen. Count 1 charged that on March 7, 1971, they murdered Jack Williams by intentionally shooting him. Count 2 charged that on the same occasion the defendants shot and killed Williams, with knowledge that the shooting created a strong probability of death or great bodily harm. Count 3 charged that on the same occasion defendants committed murder when they shot and killed Williams in an attempt to rob him. Count 4 charged that, again on the same occasion, defendants, armed with a dangerous weapon, attempted to rob Williams by taking property from his person or presence. A short time later, they were brought to trial.

When the case was called, their counsel informed the trial court that, as a result of a plea bargain, an agreement had been reached for reduction of the murder charges to voluntary manslaughter in. return for guilty pleas, with the understanding that defendants would be sentenced to serve not less than 9 nor more than 19 years. The trial judge then inquired of defendants whether, as stated by their counsel, they desired to withdraw their pleas of not guilty. After receiving affirmative responses, the court inquired of the assistant State’s Attorney concerning the factual bases of the pleas.

Thereupon, the court was told the parties had stipulated that if the State called 21 named witnesses, and perhaps others who were employees of the Chicago Police Department, it would prove that on March 7, 1971, at approximately 12:25 A.M. in the vicinity of 3500 West Flour-noy in the city of Chicago, Jack Williams was found shot; that Williams was shot when defendant and Allen attempted to rob him; that the two defendants were arrested as a result of information furnished by eyewitnesses; and that thereafter, defendants gave incriminating statements in which they admitted shooting Williams and they told how, in the attempt to reach for a gun in Allen’s possession, he was shot and killed. Defendants were admonished, their guilty pleas were accepted, and the court imposed the four separate sentences, with the provision that they were to be served concurrently.

Thereafter, the court advised defendants of their right to appeal and of the requirement that notice be filed within 30 days from the judgments. However, the notice in this appeal was not filed within the time required. Instead, 14 days after expiration of the 30-day period, defendant filed a notice which, as part of the clerk’s date stamp, contained a handwritten notation “[n]unc pro tunc as of May 17, 1972,” a date which would have put the filing within the required 30 days. Based on these facts, the State, in its brief, and for the first time, questions whether defendant’s appeal should be dismissed because the notice was neither timely nor in accordance with the time-extension provisions of the applicable Supreme Court Rule.

In People v. Brown, 54 Ill.2d 25, 294 N.E.2d 267, a defendant filed his notice of appeal to this court 46 days after judgment was entered against him. Then, 2 years later, on the court’s motion, after briefs and oral argument, the appeal was dismissed because the notice was not timely filed. The supreme court reversed, holding that it was an abuse of discretion to dismiss the appeal when no one was injured by the late notice, the case had been briefed and argued orally, and more than 2 years had passed since filing of the notice.

In our judgment Brown controls this case. The State does not claim it was injured by the way the notice was filed. Although it had notice of the filing, it waited for 10 months, after defendant had briefed his case, before raising the question as a point in its answering brief. Under these circumstances, dismissal of defendant’s appeal would be an abuse of discretion. (People v. Brown, 54 Ill.2d 25, 294 N.E.2d 267; compare People v. Williams, 16 Ill.App.3d 111, 305 N.E.2d 583.) Therefore, we turn to the issue presented by defendant; namely, whether the trial court erred in imposing the separate and concurrent sentences.

From the record before us, it appears that the three counts which charged defendant and Ronnie Allen with the murder of Jack Williams alleged three different theories under each of which, according to the State, they murdered the same person by the same conduct. Where an indictment, in multiple counts, charges different theories by which the same person was murdered by the same conduct, a sentence on each count cannot be imposed. (People v. Robinson, 106 Ill.App.2d 78, 86, 246 N.E.2d 15.) In this case, as a result of a plea bargain, three murder counts were reduced to the same number of voluntary manslaughter charges. However, the three counts merely described theoretically different killings of the same person. Therefore, only one sentence could be imposed. For this reason, the trial court erred in imposing on defendant three separate sentences of 9 to 19 years for one criminal homicide: the admitted voluntary manslaughter of Jack Williams. Compare People v. Martin, 376 Ill. 569, 34 N.E.2d 845.

It also appears, from the facts to which the parties stipulated, that on March 7, 1971, defendant and Ronnie Allen attempted to rob Jack Williams. In the attempt to commit the robbery, a struggle ensued for the gun which Allen had in his possession, and Williams was killed. Therefore, the attempt to rob Williams was not separable from the conduct that resulted in his murder. Where two offenses result from the same conduct, a defendant may not be sentenced on both, either concurrently or consecutively. (People v. Stewart, 45 Ill.2d 310, 313, 259 N.E.2d 24.) In a case like this one, where the defendant is charged with an attempt to rob that results in a felony murder, sentences cannot be imposed for both offenses. (See People v. Hill, 6 Ill.App.3d 746, 286 N.E. 2d 764.) The only permissible sentence is for the more serious offense. (People v. Peery, 81 Ill.App.2d 372, 225 N.E.2d 730.) Therefore, the trial court erred in imposing on defendant multiple and concurrent sentences for voluntary manslaughter and attempted armed robbery. (People v. Lilly, 56 Ill.2d 493, 309 N.E.2d l; People v. Miller, 2 Ill.App.3d 206, 276 N.E.2d 395.) The only sentence the court could impose was one term of 9 to 19 years for voluntary manslaughter. People v. Steen, 9 Ill. App.3d 488, 292 N.E.2d 513.

With regard to the permissible sentence, the provisions of the Unified Code of Corrections, which became effective after defendant’s conviction, apply to his appeal because the offense for which he is “* * * being prosecuted has not reached the sentencing stage or a final adjudication * * (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008—2— 4; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Under the code, voluntary manslaughter is a Class 2 felony, a class of cases punishable by a term of imprisonment not less than 1 nor more than 20 years, with the minimum sentence not more than one-third of the maximum. (Ill. Rev. Stat. 1973, ch. 38, pars. 9—2(c), 1005—8—1(b) (3), 1005—8—1(c)(3).) It follows that the minimum of the 9- to 19-year sentence imposed by the trial court has to be modified to 6Vs years.

Accordingly, defendant’s conviction for voluntary manslaughter on Count 1 of the indictment is affirmed, and the sentence is modified so that defendant will serve not less than 6Vs years and not more than 19; the conviction and sentences for the offenses charged in Counts 2 and 3 are vacated; the conviction and sentence for attempted armed robbery under Count 4 are vacated and the cause is remanded to the trial court with directions that a modified mittimus issue consistent with the views expressed in this opinion. See People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1.

Affirmed and modified in part; vacated in part and remanded with directions.

HAYES, P. J., and DOWNING, J., concur.

       Like the defendant in this case, the defendant in Brown did not invoke the provisions of Supreme Court Rule 606(c) which provides that “[o]n motion supported by a showing of reasonable excuse for failing to file a notice of appeal on time filed in the reviewing court within 30 days of the expiration of the time for filing the notice of appeal, or on motion supported by a showing by affidavit that there is merit to the appeal and that the failure to file a notice of appeal on time was not due to appellant’s culpable negligence, filed in the reviewing court within six months of the expiration of the time for filing the notice of appeal, * * * the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing.”

       It appears that in Brown the defendant was not told by the trial court of the requirement that his notice of appeal be filed within 30 days. However, we do not believe that this fact distinguishes that case from this one.

       It should be noticed, we think, that the concepts of sentencing contained in Lilly were pronounced by the Illinois Supreme Court long after defendant’s prosecution terminated in the trial court. It is no doubt for this reason that the trial judge did not apply the rule which is now clearly applicable to this case.