author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leroy Edward Broadnax, Defendant-Appellant.
    (No. 73-2;
    Second District
    October 16, 1974.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    William Sisler, State’s Attorney, of Freeport (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant was tried before a jury upon indictments charging the offenses of armed robbery, robbery, and theft. The jury was unable to reach a verdict as to the armed robbery charge but defendant was convicted of the robbery and theft offenses. The court found that the theft was a lesser included offense in.the robbery charge and sentenced defendant on the robbery charge only, to a term of 5-15 years, to be served concurrently with a sentence in another county.

Defendant appeals, contending that he was not proved guilty beyond a reasonable .doubt and that the trial court committed reversible error in questioning the jury during their deliberations. In a supplemental brief defendant raises the alternative claim that even if we uphold the robbery verdict the judgment on the lesser included offense of theft must be vacated.

The robbery occurred on May 25, 1972, at the Eagle Food Store in a shopping mall in Freeport. Mrs. Marsh, the checkout clerk at the first register, testified that the man she positively identified in court as the defendant approached her and asked her if the manager was in. That when she said no, defendant stood in line at her register. When his turn came, he leaned over to Mrs. Marsh and said something she did not understand. He then told her to take a paper bag, put the money in it and do the same at the other registers. She observed at one point that he had a gun inside his coat.

Mrs. Marsh put the money from her register into the bag and walked with the defendant to the other registers which were manned. At the last cash register Mrs. Marsh tossed the bag filled with money to another checker, Mrs. Markman, telling her to run. Another checker, Mrs. Munz, told Mrs. Markman to give the bag to defendant. Mrs. Markman was confused and dropped tire bag on the floor.

The witness testified that defendant then drew a gun and pointed it at her, picked up the bag and ran from the store.

Mrs. Marsh further testified that after she first saw defendant it was about 3 minutes before he got into her checkout line; that it was a minute or two before he talked to the witness; and that the defendant was in the store approximately 5 minutes more.

She described the robber to the police as being a 5-foot 11-inch, 170-pound black, wearing a gray-green small hat, rounded sunglasses; a gray sports jacket with charcoal species and “goldish” pants. She identified the hat and the jacket taken from defendant’s car as the ones she had seen and had described to the police; but she could not positively identify the pants defendant was wearing as the solid-colored ones she had seen.

Another checker, Mrs. Munz, said she saw defendant in the store when Mrs. Marsh asked her if the manager was back and noticed his gray hat and gray sport coat. She saw him again when Mrs. Marsh came to her register with him and saw him from a distance of a foot or so when he stood beside her and had a gun pointing at Mrs. Markman. Both Mrs. Munz and Mrs. Markman positively identified defendant in court. There were some discrepancies in the testimony of the three checkers relative to the clothing worn by the robber, but their descriptions of the robber at the time of the offense were substantially similar.

David Fellenzer, an employee who chased the robber as he left the store came within 10 or 15 feet of the man in the parking lot. When he yelled for the man to stop, the robber turned on the employee pointing the gun at him. The witness dropped to the ground and next saw a red and white Ford, a 1962 or 1963 sedan, leaving the lot. There were no license plates on the car. The witness also identified defendant in court as well as a colored photograph of the car defendant was driving when apprehended.

A customer who was behind the robber in the checkout line and who said defendant turned to her and told her to “be cool” also made a positive in-court identification of defendant. Other customers in the store also identified defendant.

The police who received a call with descriptions of the man in the car shortly after the robbery pursued and stopped a car matching the description being driven by the defendant with no license plates displayed. The defendant was arrested and upon a search of the vehicle the police found the bag with the money, a zippered bag with a metal cast toy gun, which they described as a good replica of a Luger-type pistol or revolver, and a license plate on the rear floorboard. A hat, sunglasses and a sport coat similar to those described by witnesses at the store were also found in the car.

Shortly after the arrest Mrs. Marsh, Mrs. Munz and Fellenzer were brought to the station and viewed defendant through a one-way mirror. An officer requested that defendant put on the hat which had been recovered from his car and when he refused, the officer placed it on him. The officer also testified that he possibly asked him to put the glasses on but he did not remember whether he had him put the coat on. Mrs. Marsh, Mrs. Munz and Fellenzer each testified that they identified the defendant as the same man who was in the store earlier that day. Mrs. Munz testified she identified defendant after he put on the jacket and hat but that she could tell that it was him before he put on these items. Fellenzer said that he positively recognized defendant after he put on his jacket and the hat.

In a lineup that was held the following day, defendant was again identified by Mrs. Markman and by several other of the witnesses who were in the store at the time of the robbery. At the lineup defendant refused to repeat the words which the participants were asked to repeat.

From this evidence defendant argues that defendant was convicted on the basis of eye witness testimony which was inherently suspect bé-cause the witnesses did not have a sufficient opportunity to observe and because the showup and lineup were impermissibly suggestive thus tainting the in-court identification made by the witnesses. From our examination of the entire record we do not agree.

Identification testimony of even one witness is sufficient to sustain a verdict of guilty if the witness’ testimony is positive and credible and based on an adequate opportunity to observe the accused. (People v. Solomon (1962), 24 Ill.2d 586, 591-592; People v. Smith (1974), 18 Ill.App.3d 859, 867.) Mrs. Marsh had a particularly adequate opportunity to observe the defendant and her identification was not substantially impeached. The weight of the testimony of the other eye-witnesses who had a somewhat lesser opportunity to see the accused but who also positively identified the defendant was a matter for the jury. People v. Chapman (1961), 22 Ill.2d 521, 524-5.

The subsequent identification of defendant by three of the witnesses at a showup does not vitiate the identification testimony. The practice of showing suspects singly to persons for the purpose of identification and. not as part of a lineup has been widely condemned, but it may be justified when prompt identification is necessary and where it is apparent that the witness had an excellent opportunity to observe the defendant during the commission of the crime. (People v. McMath (1970), 45 Ill.2d 33, 36; People v. Simmons (1970), 130 Ill.App.2d 614, 617.) And even if it could be said that the police station confrontation was unnecessarily suggestive it cannot be said that it was so conducive to irreparable mistaken identification that defendant was denied due process, there being no substantial likelihood of misidentification in view of the strong independent basis for defendant’s identification. See People v. Smith (1974), 18 Ill.App.3d 859, 865.

The procedure followed in the subsequent lineup at which other witnesses identified the defendant was not unnecessarily suggestive. And the defendant cannot properly argue prejudice from the fact that he singled himself out by his apparent lack of cooperation.

Upon our review of the total record we cannot conclude that the evidence was so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. See People v. Rawls (1945), 389 Ill. 110, 112-113.

Defendant next urges that we should reverse and remand the case because of an inquiry made by the judge after the jury had begun its deliberations.

The jury began deliberating at 4:13 P.M. At 10:35 P.M. the trial judge called the jury back into the courtroom. In the presence of defendant and his counsel the following colloquy took place between the court and the jury foreman:

“Now, Mr. Foreman, let me ask you, and I do not wish to— you to divulge what the numbers are or how you have voted or where you stand sofar as numbers are concerned, but let me ask you have you been able to reach a verdict?
By the Foreman of the Jury:
We have not, your Honor.
By the Court:
Have you reached a verdict on either of the counts, that is, as armed robbery, robbery, or the theft charge?
By the Foreman:
We have reached a verdict on one count.
By the Court:
And that is on what count?
By the Foreman:
The third count, the theft.
By the Court:
The theft count?
By the Foreman:
Yes.
By the Court:
Do you feel that if you are given additional reach a verdict as to the armed robbery and time that you could the robbery counts?
By the Foreman:
I do not feel so, your Honor.
By the Court:
Would you deliver to the bailiff and bring verdict that you — is that the verdict? it to the bench the
By the Foreman:
This is not signed yet.
By the Court:
I then ask the jury to return to the jury room if you have reached a verdict on one count and complete the verdict-forms as to that count, and you will then inform the bailiff when you’ve done so, and then you will return back in court.”

Approximately 10-20 minutes later, the jury returned to open court and their verdicts were read finding defendant guilty of theft and robbery, and it was reported that they were deadlocked on the armed robbery charge. The jury was polled and each juror confirmed the verdicts.

The defendant argues that it was reversible error to call the jury back into the courtroom after only 6 hours of deliberation since there was no prior indication that they would be unable to reach a verdict. He reasons that the effect of the court’s inquiry was to advance the opinion of the judge that the jury were acting too slowly when the guilt of the defendant was obvious; and further speculates that the jury in an effort to satisfy the court and virtually without further deliberations and contrary to the court’s instruction tacked on the robbery verdict as well as returning the theft verdict. We are not so persuaded.

It is a well established rule that communications from judge to jury should be made in open court in the presence of the parties; and that when any communication with the jury either by a judge or a third person is in any way calculated to prejudice the defendant, generally, a new trial will be awarded. (People v. Brothers (1932), 347 Ill. 530, 546.) Conversely, a jury verdict will not be set aside where it is apparent that no injury or prejudice has resulted from the communication. (People v. Rettig (1972), 50 Ill.2d 317, 319.) A mere inquiry by the court as to the possibility of a verdict, even when imprudently made out of defendant’s presence, has been held not to be prejudicial so as to require a new trial. (People v. Tilley (1952), 411 Ill. 473, 478.) In People v. McVet (1972), 7 Ill.App.3d 381, 386, the comt inquired, after approximately 3 hours of deliberations, whether the jury had reached a verdict; and then asked whether the jury was reasonably close. When this was answered in the negative the court instructed the jury to retire and further consider the case. We held that there was no reversible error since the remarks were not of the nature to unduly influence the jury. In People v. Gardner (1968), 98 Ill.App,2d 101, the court summoned the jury into the courtroom, after they had been deliberating somewhat over 2 hours and in the presence of defendants and their counsel asked the jury if they were about to reach a verdict. The foreman reported that they could reach a verdict as to one defendant only; the court then instructed them to return to the jury room and if they reached a verdict as to one defendant to so find and prepare their verdict on the other defendant. No reversible error was found. See also People v. Canada (1967), 81 Ill.App.2d 220, 234. Cf. People v. Wilson (1972), 51 Ill.2d 302, 309; People v. Arnett (1951), 408 Ill. 164, 170.

The remarks here, reasonably viewed, were not of a prejudical nature. No reasonable implication can be derived from the remarks that the court intended to hasten a guilty verdict on either charge. They are clearly distinguishable from the court’s statements in People v. Baltimore (1972), 7 Ill.App.3d 633, in which the court inquired whether the jury was able to reach a verdict of guilt or innocence without regard to the death penalty with the attendant conclusion that the remarles may have been reasonably construed by the jury as an opinion or suggestion by the court of defendant’s guilt. In People v. Rohwedder (1967), 78 Ill.App.2d 211, also cited by defendant, there are the distinguishing circumstances that the chief judge, not the trial judge, called the jury back to inquire as to their progress in the absence of defendant or his counsel. This added to the possibility that the jury would interpret the inquiry to mean that it was time they brought in a verdict. If the case is intended to stand for the rule that the inquiry of itself is prejudicial error we do not agree with the conclusion.

There has been some suggestion in oral argument that the court’s instruction to return into open court with the signed verdict as to theft somehow deprived the jury of the right to further deliberate or act upon the robbery charge. No authority for this position has been offered and we can find no basis for the argument under the circumstances of this case.

In a supplemental brief defendant raises an additional issue related to the entry of judgment on both the theft and the robbery verdicts. While the court imposed sentence only upon the robbery count, it was error, and the State so concedes, to enter judgment on the lesser included offense arising from the same acts. The judgment finding defendant guilty of theft is therefore vacated.

From our review of tire whole record we are satisfied that defendant was convicted by proof beyond a reasonable doubt in a trial free from substantial error.

We therefore affirm the judgment finding defendant guilty of robbery and the sentence imposed thereon; and vacate the judgment finding defendant guilty of theft.

Affirmed in part; judgment vacated in part.

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


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gloria Love, Defendant-Appellant.
    (No. 73-145;
    Second District
    October 21, 1974.

      Ralph Ruebner, of State Appellate Defender’s Officer, of Elgin, for appellant.
    William Sisler, State’s Attorney, of Freeport (James W. Jerz and Charles D. Sheehy, Jr., both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Lee Harris, Defendant-Appellant.
    (No. 73-70;
    Second District
    October 21, 1974.

      Ralph Reubner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Charles D. Sheehy, Jr., both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: PRESIDING JUSTICE THOMAS J. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Billy Franklin Chism, Defendant-Appellant.
    (No. 73-182;
    Second District
    October 22, 1974.
   Opinion by Mr.

PRESIDING JUSTICE THOMAS J. MORAN.

Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.

Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Milton J. Barren, Defendant-Appellant.
    (No. 74-12;
    Third District
    October 24, 1974.
    James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   PER CURIAM.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary L. Vail, Defendant-Appellant.
    (No. 73-312;
    Third District
    October 24, 1974.
    Hottle and Spears, of Monmouth, for appellant.
    Fred R. Odendahl, State’s Attorney, of Monmouth, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment entered in a bench trial in which defendant Gary L. Vail was found guilty of drag racing in violation of the provisions of section 11 — 504 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95Vz, § 11 — 504). In that section, drag racing is defined to mean “the act of 2 or more individuals competing or racing on any street or highway e s * ina situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him.” The only issue on appeal before this court is whether the evidence is sufficient to support the conviction. Defendant contends he was not proven guilty of the offense beyond a reasonable doubt.

From the record it appears that at approximately 10:45 P.M. on June 26, 1973, defendant was arrested while operating a motor vehicle along a road known as old U.S. Route 34, a two-lane highway, in Warren County. The arresting officer, a deputy sheriff, charged defendant with the offense of drag racing.

The sole witness for the State was the arresting officer- and the sole witness for the defendant was defendant himself. Defendant testified that he had pulled his automobile to a stop and was attempting to make a vehicle repair, and that another vehicle stopped near his. Defendant stated that after he refused an offer of assistance, he re-entered his vehicle, and thereupon, the second vehicle, not known by defendant, attempted to race with defendant or at least demonstrated a rapid acceleration. Defendant asserted that he did not attempt at any time to compete with the driver of the second car and that his vehicle was in fact passed by the second vehicle. Defendant contends that it takes two willing parties to engage in drag racing, unless the race is against time, and that defendant’s testimony that he did not engage in such drag racing should have created a reasonable doubt of his guilt in the case.

On behalf of the State, the deputy sheriff testified that he observed two cars at rest side by side on the highway. He also testified that he heard a loud engine noise and squealing tires and that both automobiles accelerated and traveled side-by-side for several seconds. He observed that, in a distance of approximately one-half mile, defendant’s car had attained a speed of around 65 miles per hour and the other car had reached a somewhat higher speed.

It is urged by defendant that darkness, distance, and the speed of the deputy’s car minimized the weight of his testimony. The State argues that the fact of darkness is irrelevant as both cars could be seen easily by their tail lights and head lights. There was no testimony of any difficulty in viewing the actions of the two cars, nor was there any evidence of handling difficulty during the chase so as to prevent accurate observation. It is notable that defendant’s car was in the right lane of the highway, and the officer testified that defendant accelerated very rapidly along with the other automobile from a dead stop.

While the same requirement of proof beyond a reasonable doubt applies in cases of violations of provisions of the act regulating traffic on the highways of this State, it is the duty of the court on review to examine the record, and when the issue of sufficiency of evidence is raised to determine whether the trier of fact was justified in finding that defendant was guilty. (People v. Holt, 398 Ill. 606, 612, 78 N.E.2d 474.) The Illinois Supreme Court in People v. Schoop, 288 Ill. 44, 47-48, 122 N.E. 836, indicated that there must be a clear and well-founded doubt arising from the evidence before a court of review will interfere on the basis that the evidence does not support the judgment.

The parties in this case agree that the trial judge was the trier of fact and had the right to determine which of the witnesses was worthy of belief and, to the extent that such witnesses contradicted one another in testimony, the issue of credibility is for the determination of the trial court, subject to the requirement that his discretion in determining such issue shall not be abused.

On the basis of the record before us, therefore, we do not believe we would be warranted in concluding that the evidence in the case was so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. (People v. Stangeland, 76 Ill. App.2d 77; People v. Wesselmann, 78 Ill.App.2d 62.) We, accordingly, have concluded in compliance with Supreme Court Rule 23 (Ill. Rev. Stat. 1973, ch. 110A, § 23) that the judgment of the Circuit Court of Warren County is required to be affirmed, and we do affirm such judgment.

Affirmed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    William Boschelli et al., Plaintiffs-Appellees, v. Villa Park Trust & Savings Bank, as Trustee, et al., Defendants-Appellants.
    (No. 73-116;
    Second District
    October 9, 1974.

      Rehearing denied November 22, 1974.

      Bauer & Hotte, of Elmhurst, for appellants.
    John R. Mackay, of Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs-appellees, William Boschelli and other owners of property in Robert Bartlett’s Glen Ellyn Countryside Subdivision, Du Page County, brought this action for declaratory judgment in the circuit court of Du Page County, Illinois. The action sought to enforce covenants limiting the use of lots owned by the defendant-appellant, John W. Reedy Realty, Ltd., to residential purposes because the defendant intended to use such property for a real estate office. The trial court determined that the covenant was enforceable and that the defendant intended to violate the covenant and awarded the injunctive relief sought. From such decree defendant real estate company has appealed.

. In 1971 Reedy Realty purchased lots 49 and 50 located on the southeast comer of Bloomingdale Road and Sidney Avenue in the Countryside subdivision. They each have a frontage of 100 feet on Bloomingdale Road and a depth of approximately 190 feet. They are about 1000 feet north of North Avenue.

It was stipulated that John W. Reedy, Jr., would testify that he and his three brothers purchased the two lots in June, 1971. Title to the lots was taken in a land trust at Villa Park Trust and Savings Bank and transferred in January, 1972, to J. W. Reedy Realty, Ltd., a corporation of which the four Reedys and their father were the sole shareholders, officers and directors. Although they were aware of the existence of some restrictions on the property, they were unaware of the specific nature of those restrictions. Lot 49 was vacant and Lot 50 was improved with a single-family home which they rented until September, 1971, when their tenant left. At that time they filed an application with the Zoning Board of Appeals of Du Page County for a variation from the existing zoning classification to operate a real estate sales office from the property and •a public hearing on that application was held in October. The Du Page County Board of Supervisors granted the variation for a period of five years.

The interior of the structure on. Lot 50 was converted into a sales office and most of Lot 49 was graded and covered with gravel for use as a parking lot. There was no change to the exterior of the building although a sign was erected at the front of the property.

Trust deeds dated in 1953 and 1955 containing the restrictive covenants together with the plats of units 1 and 2 of the subdivision were admitted into evidence. The language in all deeds is identical. The ordinance granting the variation was also admitted into evidence. It contains the finding of the Zoning Board of Appeals that the two lots are “* 9 9 in the path of future development for business uses * 9 *.” Five witnesses testified in behalf of the plaintiffs including four persons who were owners and residents in the subdivision and the fifth person who was a building and planning consultant. One witness, a real estate broker, testified for the defendant.

After the hearing the trial com! made findings including “* 9 9 since the inception of the covenants there has not been such a change in this particular area in character or environment so that it would be inequitable or unreasonable to enforce said restrictive covenants.” The decree found the issues in favor of the plaintiffs and granted injunctive relief.

In seeking to reverse the action of tire trial court defendant urges: one, the convenants do not prohibit the use of the property as a real estate office and two, the evidence does not support the action of the trial court in granting enforcement of the covenants.

The language employed by the subdivider in the deeds used to convey title to the individual lots in both units 1 and 2 of the Countryside was identical. Those deeds provided that the individual lots ‘‘-9 9 9 shall be residential lots” with certain exceptions in each unit. The deeds go on to say that “[n]o structure other than a detached single family dwelling * » * shah be erected or placed on any residential lot." According to defendant the foregoing language means that once a structure is erected which could be used as a residence or was used as a residence its use is not governed by the covenants and so long as there is no change in the structure any use is permissible.

We believe the position of the defendant is untenable and requires a strained interpretation of the language beyond the ordinary meaning of the words employed. Even though we agree the entire deed or covenant must be considered in construing any particular word or phrase therein (Leverich v. Roy, 338 Ill.App. 248, 87 N.E.2d 226), the language adequately conveys the intention of the parties that structures are to be constructed and used for residential purposes. (N. H. Engle & Sons, Inc. v. Laurich, 98 Ill.App. 2d 18, 240 N.E.2d 9.) In Mangini v. Oak Trust & Savings Bank, 43 Ill.App.2d 318, 193 N.E.2d 479, applying the same covenants as are involved in the instant case, the court refers to the residential purpose of the covenants and holds that re-subdivision of the lots into smaller lots is violative of the covenants. Indeed, no claim is made by defendant that it was misled by or misunderstood the covenants. Restrictive covenants do not supersede, enlarge, or diminish the requirements of whatever zoning ordinance may be applicable and if the covenants are more restrictive than the zoning requirements, they prevail as to purchasers; if they are less restrictive, the provisions of the zoning ordinance prevail. (Dolan v. Brown, 338 Ill. 412, 170 N.E. 425, and Bluett v. County of Cook, 19 III.App.2d 172, 153 N.E.2d 305.) Unless the covenants are unenforceable for some reason it is our conclusion that they prohibit the use of the premises for a real estate office.

We next consider defendant’s contention that the evidence is insufficient to support the trial court’s determination that the covenants are enforceable.

Restrictive covenants will not be enforced when there has been such a change in the character and environment of the property that the objective of the restrictions cannot be accomplished by their enforcement, or if by such change it would be unreasonable or oppressive to enforce them. (Exchange National Bank v. City of Des Plaines, 127 Ill.App.2d 122, 262 N.E.2d 48, and Ewertsen v. Gerstenberg, 186 Ill. 344, 57 N.E. 1051.) Unless a covenant is contrary to law it will be enforced and its breach enjoined unless the party against whom enforcement is sought sustains the burden of showing in accord with the foregoing equitable principle that enforcement would be inequitable. Paschen v. Pashkow, 63 Ill.App.2d 56, 211 N.E.2d 576.

On this appeal the defendant has called our attention to the evidence of the changes which have occurred in the area and in particular to the business uses of property along Bloomingdale Road. Some of these changes relate to property not included within the subdivision and other changes relate to uses of property originally excepted from the residential restrictions or thereafter abrogated by agreement. In contrast to the character of the area along Bloomingdale Road, the planning consultant who testified for plaintiffs emphasized the character of the area within a two-block radius of defendant’s property concluding that the essential character of defendant’s property as residential had not changed and was not modified by the changes in usage of property along Bloomingdale-Road.

We believe it unnecessary to detail the uses of the property since it is apparent from the nature of the arguments already discussed that the evidence was substantially in conflict, and we are unable to say as a matter of law that the changes relied on by the defendant made enforcement of the covenants inequitable. We do not agree with defendant, that the trial court failed to consider any of the relevant factors such as the zoning ordinance or the conduct of the plaintiffs or other owners regarding "the uses of other lots.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles McDonald, Defendant-Appellant.
    (No. 72-333;
    Second District
    October 11, 1974.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant was charged with attempt murder and burglary, was tried by a jury, and was found not guilty of attempt murder but guilty of burglary. He was sentenced by the court to 20-35 years in the Illinois State Penitentiary, the sentence to be served consecutively with a prior sentence of 20-35 years for a similar offense.

The instant offense occurred on December 1, 1969. Defendant placed a wastebasket by a window and entered the apartment of the complaining witness. When she was awakened he was straddling her in her bed. She testified that the light from a flood lamp came through the sheer curtains and she was able to see him well. She fought him off, chased him down the hall, and as he was opening the front door to leave, she again saw his face in good light at arm’s length. He then fled.

Defendant had previously been convicted of a most similar offense which occurred on December 3, 1969, involving the entrance into an apartment of another woman where a knife was used and the complaining witness cut. His conviction was affirmed by this court, People v. McDonald (1972), 4 Ill.App.3d 62, 278 N.E.2d 91.

The complaining witness in the instant case viewed 100 pictures and 4 days after the occurrence viewed 10 pictures at the Wheaton police station in which she selected 2 photographs as suspects, one of which was the defendant. She also constructed an “identi-kit” composite picture of her assailant shortly after the occurrence. On December 14, 1969, the defendant drove to the Wheaton police station where he made a complaint that his car was being followed by an unknown vehicle. The car following the defendant was, in fact, an unmarked car of the Whea-ton police department. The complaining witness was called to the police station and as she walked by the room where the defendant was with two officers in plain clothes, she immediately identified him as her assailant. The next day a lineup was had in the Du Page County jail and the defendant’s counsel was present. Defendant’s counsel made various suggestions as to how the lineup should be conducted, which were followed. The complaining witness identified the defendant in the group of five men in the lineup. The record indicates defense counsel did not see the identification number of the defendant written down by the witness at the time of the lineup. After the lineup was over defense counsel requested permission to be present at the interrogation of the complaining witness and this was denied.

Prior to trial, defense counsel made a motion to suppress the identification testimony of all witnesses at the lineup held on December 15, 1969. The record is not clear but it is obvious that the trial judge did in fact suppress the lineup identification. Immediately prior to trial the order suppressing the lineup identification was vacated by another trial judge and testimony relative to the lineup was admitted at the trial.

The defendant has raised six issues: (1) that the trial judge erred in vacating the earlier order suppressing the line-up identification; (2) that the refusal by the State to permit the presence of counsel at the identification portion of the lineup deprived him of his constitutional rights with relation to the lineup procedures; (3) that the State failed to prove by clear and convincing evidence that the in-court identification of the defendant had an independent origin arising from observations of the defendant uninfluenced by tainted pretrial photographic identification and show-up; (4) that the trial court allowed testimony of another witness of the similar crime committed 72 hours later on December 3, 1969, several miles away. Defendant contends that this evidence failed to establish a common design, motive, intent or knowledge; (5) that the only evidence other than the identification by the complaining witness is circumstantial evidence of no probative value; and (6) that defendant’s sentence should be reduced to conform with the applicable provisions of the Unified Code of Corrections, the case not having reached final adjudication.

The first three issues raised by the defendant are closely allied. The contention of the defendant that the order of the court suppressing the lineup identification previously entered prior to trial was an appeal-able order and should have been appealed is correct. He has cited People v. Taylor (1972), 50 Ill.2d 136, 277 N.E.2d 878, where the supreme court held substantially in accordance with defendant’s contention, citing People v. Quintana (1967), 36 Ill.2d 369, 223 N.E.2d 161, and People ex rel. MacMillian v. Napoli (1966), 35 Ill.2d 80, 219 N.E.2d 489. Under the rationale of these cases the supreme court in Taylor held that the order could not be reviewed by another trial judge. While the above cases deal with motions made at preliminary hearings, we find that the same principle applies under Supreme Court Rule 604 which is not limited to preliminary hearings but provides

“In criminal cases the State may appeal only from an order of judgment * * * suppressing evidence.” Ill. Rev. Stat. 1973, ch. 110A, par. 604.

The third contention of the defendant in this connection is that he is entitled to counsel at the lineup after he has been charged with a crime and the matter has become an adversary proceedings. The complaint against the defendant was signed on December 14, 1969, and the lineup was held on December 15, 1969. There is no question but that after the defendant is charged either by information, complaint or indictment, it is an adversary proceeding and he is so entitled to counsel. The Illinois Supreme Court so held in People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161, wherein the court considered the United States Supreme Court decision, Kirby v. Illinois (1972), 406 U. S. 682, 32 L.Ed. 2d 411, 92 S.Ct. 1877, and in so doing held that a defendant was entitled to counsel at a line-up where the proceedings had become adversary in nature either by a formal complaint being filed or by an information being filed, as well as by indictment. Counsel for defendant has cited People v. Distmuke (1972), 3 Ill.App.3d 553, 278 N.E.2d 152, where we held that no distinction existed between pre- and post-indictment lineups and the right to counsel. This case was written prior to Kirby, supra, and Burbank, supra, which indirectly overruled this court by holding that right to counsel did not, in fact, exist in preindictment, precom-plaint, or preinformation situations.

The record herein discloses that defense counsel was not present when the complaining witness identified the defendant immediately after the lineup. The police officer present at the lineup testified that the complaining witness wrote down the number 1, which was defendant’s number in the lineup, after she viewed the five men who were in the lineup. The defendant has cited two cases in which opposing views in this regard have been set forth. In the California case of People v. Williams (1971), 3 Cal.3d 853, 92 Cal.Rptr. 6, 478 P.2d 942, in a four-to-three decision, the California Supreme court held that it would be meaningless to have defense counsel present at the lineup and yet not have him present at the time of the identification. We agree with this decision. However, in United States v. Cunningham (4th Cir. 1970), 423 F.2d 1269, one of several witnesses misidentified the defendant, an altercation between counsel took place, defense counsel was ejected from the interrogation, and the complaining witness Byrd, who unequivocally identified the defendant at trial, picked the defendant from the lineup in the absence of defendant’s counsel. The court found that this was not error and specifically held that defense counsel’s presence was not required in the interrogation of the complaining witness after the lineup had concluded, holding that United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, and Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, S.Ct. 1951, did not apply to subsequent interrogation. It would appear that Cunningham and Williams may well be in conflict. In any event, this court is of the definite opinion that Wade and Gilbert do require that counsel for the defendant not only be present at the lineup but at the identification, if any, of the defendant by the complaining witness.

In summation of these contentions of the defendant, we find first that the trial court should not have reversed the order of suppression of identification in the lineup. The proper procedure to have been taken by the State for review of the order suppressing the lineup identification was by appeal under the provisions of Supreme Court Rule 604(A)(1) supra. We further find that defense counsel should have been allowed to be present, if he were not, at the identification of the accused. We specifically find, however, that subsequent interrogation of the complaining witness after the identification does not carry with it the right of defense counsel to be present. See Cunningham and Williams, supra.

In Dismuke, supra, with relation to the right of defendant to have counsel present at the line-up, we stated the following:

“Under the circumstances, even if Wade and Gilbert are assumed applicable to this pre-indictment line-up, we do not find that there is a reasonable possibility that the evidence complained of might have contributed to the conviction. We, therefore, hold that the testimony related to the pre-trial line-up was harmless error and not the cause for a reversal of the conviction. [Citations.] 3 Ill.App.3d 553, 558.

There is no contention by the defendant that the lineup was not fairly conducted. As a matter of fact, as defense counsel points out, the defendant’s attorney “arrived before the line-up and participated fully in the preparation and presentation of five suspects including defendant * * purther, defendant’s counsel states, “While the record does not affirmatively show that defendant had requested the presence of counsel, the State clearly acquiesced to his participation up to the point of actual identification. Defendant clearly utilized counsel’s help in the preparation and completion of the viewing process.” The record clearly shows that the lineup was, in fact, fairly conducted and not unduly suggestive.

Considering all of the above, the question arises as to whether the defendant was deprived of a constitutionally fair trial. In the case cited by the defendant, People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161, the court stated at page 273:

‘Whether the defendant was denied due process of law depends upon the totality of the circumstances surrounding the identification procedure. If the witness had an opportunity to observe and there is little likelihood of mistaken identification a conviction based upon a subsequent in-court identification will not be set aside.”

Defendant next contends that the State failed to prove by clear and convincing evidence that the in-court identification of the defendant had an independent origin arising from observations of the defendant uninfluenced by her observations of the defendant in the police station and her identification through photographs. We do not agree. Considering the facts herein, we find that the in-court identification of the accused by the complaining witness was sufficient, excluding the show-up view of the defendant in the police station and the lineup. The complaining witness was awakened by the defendant in a lighted room as he straddled her with his face looking down upon hers. She chased him down the haU after fighting him off and once again she saw him in the lighted doorway as he fled from the apartment. In addition to that, she was able to make an “identi-kit” composite picture of the defendant immediately after the crime and was able to pick out 2 pictures from over 110 submitted to her, one of which was the defendant subsequently identified by her. As the court stated in People v. Brown (1972), 52 Ill.2d 94, 100, 285 N.E.2d 1, “the prosecutrix had ample opportunity to view the defendant and to have his facial characteristics and dress impressed upon her mind, so that she could positively identify him.” In Brown the court went on to hold that identification under somewhat similar circumstances to the instant case was sufficient.

In the most recent case of People v. Smith (1974), 18 Ill.App.3d 859, 310 N.E.2d 734, we find a situation quite similar factually to the case before us. In Smith a young Negro boy accosted a woman on the street and stated, “Give me your purse or I will shoot you.” The witness testified that she looked at the defendant for not more than 10 seconds, started running and was shot by the defendant Smith. The defendant was brought to the hospital and she recognized defendant’s face. A lineup was then conducted in the hospital emergency room and she again identified him. The court held that the victim had the opportunity to view the defendant face to face for an adequate length of time, and in view of the immediacy of the hospital confrontation the court held that the hospital showup did not lead to a substantial likelihood of misidentification of the defendant. The court went on to hold that as the show-up did not result in a denial of due process, the lineup was not significant. In the case before us the complaining witness had far more opportunity to view the defendant than the complaining witness had in the Smith case. (Also see People v. Reynolds (1970), 131 Ill.App.2d 121, 266, N.E.2d 525.) In People v. Triplett (1970), 46 Ill.2d 109, 263 N.E.2d 24, the Illinois Supreme Court discussed another comparable situation where the court held that the showup and lineup were not significant as the in-court identification was reliably predicated upon an observation independent of the challenged in-custody confrontations. The court stated:

“It is clear that she had an excellent opportunity to observe him at her home, and form an accurate, reliable basis for subsequent identification.” 46 Ill.2d at 114.

Furthermore, assuming that the admission of the line-up identification was constitutional error, we find that the error was harmless. In Gilbert v. California (1987), 388 U.S. 263, 274, 18 L.Ed.2d 1178, 1187, 87 S.Ct. 1951, the United States Supreme Court recognized the possibility of harmless constitutional error in the admission of lineup testimony. The Court there stated that the test for harmlessness is whether the appellate court is “able to declare a belief that it was harmless beyond a reasonable doubt.” (Chapman v. California (1966), 386 U.S. 18, 24, 17 L.Ed.2d 705, 710, 87 S.Ct. 824.) In the case before us, in applying that standard we find that the error was harmless beyond a reasonable doubt as to the defendant.

We therefore find that the prosecutrix’s in-court identification did have an origin independent of the lineup and the observation by the prosecutrix of the defendant in the police station. See People v. Peacock (1974), 20 Ill.App.3d 969.

The fourth contention of the defendant pertains to the testimony of the similar crime committed on December 3,1969, and of which the defendant was convicted prior to the instant trial. The basic premise is that evidence of other crimes is not admissible for the purpose of, or as showing, the propensity of the defendant to commit a criminal act. The test is whether such evidence of the other offenses tends to establish motive or intent, or the existence of a common scheme or design. As we stated in People v. Allen (1971), 1 Ill.App.3d 197, 201, 272 N.E.2d 296, 299:

“But such evidence is not admissible where it only has value to create an inference — necessarily prejudicial — that because a man has committed other crimes he is more likely to have committed this one. [Citations.]”

In Allen we discussed the various cases pertaining to the admissibility of another offense and concluded that:

“We believe that the real test of the admissibility of other crimes to be distiHed from the decisions remains that of independent relevance to an issue in the case.” (1 Ill.App.3d at 201.)

We went on to hold that under the facts in that case that the evidence of the other crime tended to prove common design, motive, intent or knowledge. In People v. Brown (1962), 26 Ill.2d 308, 315, 186 N.E.2d 321, the court stated:

‘While it is the general rule that evidence of other offenses unrelated to the crime for which a defendant is on trial is not competent, well recognized exceptions establish that such evidence may be admissible to prove design, motive or knowledge when those matters are in issue or relevant. (People v. Watkins, 309 Ill. 318; People v. Davis, 412 Ill. 391; Cleary, Handbook of Illinois Evidence, Sec. 7.10, p. 89.)”

In People v. Carter (1968), 38 Ill.2d 496, 232 N.E.2d 692, the trial court permitted testimony of a crime committed by the defendant 7 years after the charged offense. The court stated that it felt that defendant’s conduct in connection with the one attack was very similar in significant respects to his conduct relative to the murder committed by him, and that it indicated a common design and was admissible as an exception to the rule prohibiting evidence of another crime other than the one for which the defendant was being tried. (See also People v. Hayes (1972), 3 Ill.App.3d 1027, 279 N.E.2d 768.) In People v. Nelson (1974), 17 Ill.App.3d 224, 308 N.E.2d 122, we find a case remarkably similar to the factual situation before us as disclosed by the following citation therefrom:

“Furthermore, evidence of subsequent crimes is admissible where it tends to establish motive or intent, absence of mistake, or the existence of a common scheme or design. [Citations.] In the present case, the evidence established that the defendant followed a common design on each of the two occasions in question. Both victims were women alone at night, and both were accosted while about to enter their homes. In both instances, the defendant placed his arm around the victim’s neck, held a gun to her head and demanded the keys to her house. Therefore evidence of the defendant’s conduct toward Mrs. Elcock, to the extent that it revealed this common method of operation, was admissible.” (17 Ill.App.3d at 227.)

In the case before us the attack for which the defendant was convicted prior to tire instant trial, was similar in several unusual aspects. Entrance to the apartments of the two women was gained by the placing of a wastebasket or object by a window, the defendant straddled both women in the same fashion, he wore gloves, tennis shoes and dirty khaki or green pants. We do not find that under the specific facts of this case that the evidence of the other similar offense committed within 72 hours in a neighboring town was prejudicial error, but was in fact competent evidence to prove design, motive and intent on the part of the defendant. See People v. Kovacivich (1973), 10 Ill.App.3d 797, 293 N.E.2d 33.

Defendant next contends that the circumstantial evidence, exclusive of the identification by the victim, was insufficient to estabfish defendant’s gufft beyond a reasonable doubt. We do not find that the circumstantial evidence, if it were, was necessary for the proof of defendant’s guilt. As the supreme court said in People v. Brinkley (1965), 33 Ill.2d 403, 405-406:

‘Where the identification of an accused is at issue in a criminal case, we have constantly reiterated the rule that the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and viewed the accused under such circumstances as would permit a positive identification to be made. [Citations.]”

The courts of this state have reiterated this statement of the law in numerous cases.

Defendant lastly contends that inasmuch as the 1969 offense had not reached final adjudication on January 1, 1973, that the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2— 4) apply. With this we agree. It is not necessary to cite citations as this court and the Illinois courts have ruled to that effect in numerous instances. The defendant was convicted of burglary. Burglary is a class 2 felony (Ill. Rev. Stat. 1973, ch. 38, par. 19 — 1) and the maximum sentence that may be imposed for a class 2 felony under the Unified Code of Corrections is 20 years; likewise, the minimum shall not exceed one-third of the maximum. Defendant’s sentence of 20-35 years is therefore reduced to a minimum of 6 years and 8 months, and a maximum of 20 years. The judgment of the trial court is affirmed as modified.

Affirmed as modified.

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


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harriet Mae Ralls, Defendant-Appellant.
    (No. 74-78;
    Fifth District
    October 15, 1974.

      Joseph R. Bartylak, of Land of Lincoln Legal Assistance Foundation, Inc., of Alton (Helen D. Moorman, of counsel), for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Edward C. Ferguson, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The Alton police answered a call from the defendant’s landlady at 3 A.M. on January 25, 1974. They took the defendant into custody and detained her at the police station until 4 P.M. when Dr. Edward Mulvill conducted an examination. Dr. Mulvill completed a certificate attached to a petition which had been filled out by Billy Lawrence of the Alton Police Department. The petition in the Circuit Court of Madison County was for hospitalization, alleging that the defendant was a person in need of mental treatment as defined in section 1 — 11 of the Mental Health Code. The defendant was taken to the Alton State Hospital the same day immediately following the examination as an emergency admission.

On January 30, 1974, defendant was served with a notice of hearing concerning her mental health which was set for January 31, 1974. The hearing was held on January 31. Defendant was represented by appointed counsel and no relatives or witnesses on defendant’s behalf were notified or appeared. Dr. Marta Saenz, a physician on the staff of the hospital, testified for the State, and the defendant testified. Dr. Saenz recommended that the defendant continue to be hospitalized because she was unable to take care of herself. When questioned by the court, Dr. Mulvill and a Dr. O’Neill, another examining doctor, joined Dr. Saenz in her conclusion. The court found the defendant in need of treatment and without any inquiry into alternate treatment or placing her in custody of relatives ordered her hospitalized by the Department of Mental Health in one of its hospitals.

The defendant has appealed from the order of the Circuit Court of Madison County and bases her appeal on three points: (1) the petition for hospitalization and the attached doctor’s certificate did not justify the emergency hospitalization; (2) the evidence at the hearing does not support the finding that the appellant was “a person in need of mental treatment”; and (3) the court erred in failing to consider any alternative form of care or treatment for the defendant.

We believe that the defendant was not properly hospitalized for emergency treatment.

The certificate of need for hospitalization which was signed by Dr. Mulvill did not clearly state the facts upon which his opinion was based. When asked to state a conclusion about the defendant, the doctor wrote “unable to care for herself or harmful.” In response to a question on the certificate asking the doctor to describe the specific acts of the defendant, the doctor wrote “bizarre behavior.” The doctor wrote “see police report” as the source of his information for the acts. Thus it appears that the doctor relied upon information supplied by the police officers in reaching his conclusion. In determining whether the defendant was properly hospitalized as an emergency, therefore, the only specific acts of the defendant which are known to this court and which lead to the hospitalization are that the defendant asked several men to light her gas oven because she was cold and that she told police officers that she could “see cold.”

The emergency admission provision of the Mental Health Code is very clear in requiring that a person be “in need of mental treatment and in such a condition that immediate hospitalization is necessary for the protection from physical harm of such person and others.” (Ill. Rev. Stat., eh. 91%, par. 7 — 1.) Emergency admission to a mental hospital is an extreme step and it should not be invoked except in true emergencies. A “person in need of mental treatment” is defined as “any person afflicted with a mental disorder, not including a person who is mentally retarded, as defined in this Act, if that person, as a result of such mental disorder, is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs.” (Ill. Rev. Stat., ch. 91%, par. 1 — 11.) The defendant was not properly hospitalized as an emergency, therefore, unless the facts known at the time of the hospitalization support the conclusion that the defendant was in need of mental treatment and was “in such condition that immediate hospitalization is necessary for the protection from physical harm of such person or others * * Ill. Rev. Stat., ch. 91%, par. 7 — 1.

The defendant’s statement that she could “see cold” was not sufficient to justify a conclusion that hospitalization was needed to prevent physical harm to the defendant or some other person. It has been held that the mere establishment of a mental problem is not an adequate basis upon which to confine a person who has never harmed or attempted to harm either himself or another. (People v. Sansone, 18 Ill.App.3d 315, 309, N.E.2d 733.) In the instant case, the petition and the accompanying certificate demonstrated, at the most, that the defendant may have had some type of mental problem. The mental problem was not described and there were no known facts leading to the conclusion that the defendant’s continued freedom created a danger of physical harm to herself or others.

“In the area of mental health law the State must balance the curtailment of liberty against the danger of harm to the individual or others.” (People v. Sansone, supra, at 323.) Section 7 — 1 was intended to provide a degree of protection to an individual’s liberty if that individual is alleged to be mentally retarded or in need of mental treatment. That protection is afforded by the requirement that the petition to hospitalize a person be accompanied by a physican’s certificate which contains the reasons for the physician’s conclusion. This court interprets the word “reasons” to mean that specific reasons must be listed on the certificate. Such an interpretation will provide a greater degree of protection to the liberty of a person alleged to be mentally retarded or in need of mental treatment. This amount of protection to individual liberty seems especially important in light of the fact that any person 18 years of age or older may present a petition to hospitalize an individual for emergency mental treatment. The possibility that the emergency procedure would be abused is great unless the word “reasons” as used in section 7 — 1 is interpreted as suggested above. The legislature intended that the person could be hospitalized for emergency mental treatment against his will only on the basis of a petition and an ind-ependent examination of a physician. An examination is not independent, of course, if the physician relies on statements made by the petitioner about the person sought to be hospitalized. If the examining physician is not required to specificaUy state his reasons for recommending hospitalization, the risk is greatly increased that the doctor will rely on the petitioner’s statements rather than upon a complete and independent examination. Allowing that risk to be increased is inconsistent with the legislative intent of section 7 — 1 and with the requirement to protect individual liberty. The physician’s certificate in the instant case failed to state adequate reasons for the doctor’s conclusion and the defendant was not properly hospitalized.

No case has been found in which it was held that a person was improperly hospitalized for emergency mental treatment. However, if it were correctly determined at the subsequent hearing that the defendant was a person in need of mental treatment, it would not be in the best interest of society or of the defendant to reverse the court’s decision on tire grounds that the original emergency hospitalization was improper.

The defendant contends that the evidence presented at the hearing does not justify the conclusion that the defendant is a person in need of mental treatment. According to the definition of a person in need of mental treatment, the State has the burden to prove that the defendant was reasonably expected to physically injure herself or others or that the defendant is unable to care for herself so as to guard herself from physical injury or to provide for her own physical needs. (Ill. Rev. Stati, ch. 91%, sec. 1 — 11.) The defendant claims that the State proved only that the defendant may be unable to care for herself in the future.

It has been held that in a proceeding to hospitalize a person for mental treatment against his will, the State has the burden to prove that the individual is in need of mental treatment by clear and convincing evidence. That burden is greater than the burden to prove by a preponderance of the evidence but lesser than the burden to prove beyond a reasonable doubt. The State must show more than that the individual suffers from a mental illness and must prove that, because of a mental problem, the individual is expected to injure himself or another or that the individual is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs. People v. San-sone, supra.

The problem was well put in People v. Sansone, supra.: “Where the issue involved is not the occurrence of an event, but the determination of an individual’s mental condition, the State must prove that the individual is in need of mental treatment by clear and convincing evidence.” (18 Ill.App.3d at 326.) Dr. Saenz, a physician at the Alton State Hospital, thoroughly examined the defendant. She testified that she diagnosed the defendant as a “chronic schizophrenia.” She further stated that the defendant was suffering from mental illness and that “she was unable to take care of herself.” On cross-examination, Dr. Saenz reaffirmed her finding and brought out additional facts. The State called no other witnesses.

The defense counsel called the defendant. Although she answered most of the questions, her answers were far from concise and she did digress. Later defendant was cross-examined by Dr. O’Neill, one of the two doctors who had examined the defendant pursuant to an order of the court. While on the witness stand, the defendant would from time to time put certain questions to the people in the courtroom and the doctors. Frequently, she began rambling and made statements that made little sense.

The record shows that the State did carry its burden in the instant case. The defendant in her brief states that the doctor testified that she may be unable to care for herself in the future. The medical testimony specifically indicated that the defendant could not care for herself. There was absolutely no substantial evidence rebutting the State’s case.

Section 9 — 6 of the Mental Health Code (Ill. Rev. Stat., ch. 911/2, par. 9 — 6) provides alternative terms of treatment. The court was justified in finding that the defendant was in need of hospitalization, and therefore, it was not error for the court to fail to give consideration to placing the defendant with a relative.

The defendant was not properly hospitalized for emergency treatment, but that error does not require reversal for the reasons stated.

The judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Margaret Reed, Plaintiff, v. The City of Belleville, Defendant and Third-Party Plaintiff-Appellant—(S. S. Kresge Co., Defendant, and Syl Fietsam, d/b/a Syl Fietsam Jewelers, Third-Party Defendant-Appellee).
    (No. 74-158;
    Fifth District
    October 15, 1974.
    Robert J. Sprague, of Belleville, for appellant.
    Wagner, Bertrand, Bauman & Schmieder, of Belleville (John D. Bauman, of counsel), for appellee Syl Fietsam Jewelers.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The City of Belleville, defendant and third-party plaintiff, appeals from a judgment of the circuit court of St. Clair County dismissing its third-party complaint against Syl Fietsam, d/b/a Syl Fietsam Jewelers.

Plaintiff filed her complaint against the City of Belleville for personal injuries, alleging among other things that the city was negligent in permitting sand and other loose materials to remain upon the sidewalk. The city filed its answer and then filed a third-party complaint against S. S. Kresge Company and Syl Fietsam, d/b/a Syl Fietsam Jewelers. Both third-party defendants filed motions to dismiss the third-party complaint. S. S. Kresge Company’s motion was allowed and the city was given leave to amend. An amended third-party complaint was filed to which S. S. Kresge filed an answer. However, third-party defendant Fietsam’s motion was allowed and the trial court made a finding that there was no just reason for delaying the appeal.

The third-party complaint reads in part:

“That if the incident occurred as alleged, it was the direct and proximate result of the active and primary negligence of S. S. Kresge Co. and Syl Fietsam Jewelers, who caused said loose sand and material to be placed and to remain upon said sidewalk, and that the city of Belleville, third party plaintiff’s conduct was merely passive and secondary.” (Emphasis added.)

The only question presented for review is whether the trial court properly dismissed the third-party complaint against the defendant Fiet-sam when the city alleged that its negligence was passive and that of Fietsam was active.

Generally, Illinois does not allow contribution among joint tortfeasors. However, this State does allow a passively negligent tort-feasor to obtain indemnification from an actively negligent tort-feasor. John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331, 141 N.E. 739; Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630; Walker v. Service Liquor Store, Inc. 120 Ill.App.2d 112, 255 N.E.2d 613; Maas v. Ottawa Stockdale Fertilizer, Inc., 9 Ill.App.3d 33, 291 N.E.2d 514.

For the foregoing reasons this case is remanded with directions that the third-party defendant Syl Fietsam, d/b/a Syl Fietsam Jewelers, be compelled to answer.

Reversed and remanded with directions.

CARTER and CREBS, JJ., concur.


author: Mr. PRESIDING JUSTICE G. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Scott, Defendant-Appellant.
    (Nos. 73-351, 73-385 cons.;
    Fifth District
    October 17, 1974.
    Robert E. Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Guy Lahr, III, State’s Attorney, of Metropolis, for the People.
   Opinion by

Mr. PRESIDING JUSTICE G. MORAN.


text:
    Delbert Dusch, Plaintiff-Appellant, v. Travelers Salvar Corporation et al., Defendants—(Edward Smith, Defendant-Appellee).
    (No. 71-343;
    Fifth District
    October 17, 1974.

      Donald R. Mitchell, of Carbondale, and Harris and Lambert, of Marion, for appellant.
    Mitchell & Armstrong, of Marion, for appellee.
    Listeman, Bandy & Hamilton, of Belleville, and Richard E. White, of Murphysboro, for third-party defendant-appellant.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff brought this action in two counts. The jury found for the defendant against the plaintiff on Count II, a count based on negligence. No appeal is taken from that finding. Count I was based on the Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, par. 60-69). The jury rendered a verdict in the amount of $50,000 on Count I, and also answered a special interrogatory in plaintiff’s favor finding specially that defendant Edward Smith as owner of the building in question was in charge of the erection, construction, repairing, alteration, removal or painting of the building. The trial court set aside this interrogatory and entered judgment notwithstanding the verdict in favor of the defendant. Plaintiff appeals.

The issue of whether there was sufficient evidence for a jury to find that the defendant Edward Smith had sufficient connection with the operation of the work to make him a person in charge within the meaning of the Structural Work Act is controlled by the recent decision of the Supreme Court of Illinois in Carruthers v. B. C. Christopher & Co., 57 Ill.2d 376, 313 N.E.2d 457. Under tire rationale of that opinion, the trial court’s action was correct. Therefore the judgment is affirmed.

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur,


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Emmett M. Hamm, Defendant-Appellant.
    (No. 72-189;
    Fifth District
    October 18, 1974.
    Robert E. Farrell and Richard E. Cunningham, both of State Appellate Defender’s Office, of Mt. Vernon, and Kelly B. Hardwick, Senior Law Student, for appellant.
    John H. Ward, State’s Attorney, of Taylorville (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The defendant pled guilty in the Circuit Court of Christian County to two charges of aggravated incest and waived a hearing in aggravation and mitigation. On April 13, 1972, he was sentenced pursuant to a plea agreement to serve a minimum of 5 and a maximum of 20 years in the penitentiary.

The sole issue is whether the defendant’s minimum sentence is excessive under the new Illinois Unified Code of Corrections. At the time of his sentence the penalty for aggravated incest was not less than 2 and not more than 20 years imprisonment in the penitentiary. (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 10(c).) However, it is now well settled that the Code is applicable to currently pending appeals from sentences imposed before the Code became effective. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Shadowens, 10 Ill.App.3d 450, 294 N.E.2d 107.) Aggravated incest is classified as a Class 2 felony (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 10). The Code provides that:

“* * * for a class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term. Ill. Rev. Stat. 1973, ch. 38, par. 1005— 8 — 1(c)(3).

When we say that the Code is applicable, we must approach the case as though the sentencing provisions of the Code were in force at the time of the trial. If section 5 — 8—1(c)(3) had been in effect, the defendant would have been faced with different considerations when he decided how to plead. The possible minimum sentence would have been half of what it formerly was, 1 year instead of 2. (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 10(c).) This would have affected the plea agreement or perhaps even his decision to enter into such an agreement. Under these circumstances, we could remand to permit the defendant to plead anew or give the defendant tire benefit of the statute by reviewing his sentence. The latter course appears to be wiser. Where defendant has pled pursuant to a plea agreement and does not allege any violation of Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402), justice does not require that a defendant be allowed to rescind an otherwise entirely valid plea agreement. Adequate relief can be afforded defendant by reducing his sentence in accordance with the change in the statute. The sentence is hereby modified so that defendant must serve not less than 2% years and not more than 7Vz years in the penitentiary.

Judgment affirmed, sentence modified.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harley Butler, Defendant-Appellant.
    (No. 71-276;
    Fifth District
    October 18, 1974.

      Robert Farrell, of Mt. Vernon, and Lynn Sara Frackman, of Chicago, both of State Appellate Defender’s Office, for appellant.
    James G. Gullett, State’s Attorney, of Elizabethtown, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Harley Butler, from an order entered by the circuit comt of Hardin County denying defendant’s petition for post-conviction relief without an evidentiary hearing.

On November 14, 1961, the defendant was found guilty of burglary by a jury in the circuit court of Hardin County, and was sentenced to 10 years to life imprisonment. On October 11, 1965, the defendant filed a pro se notice of appeal and motion for leave to appeal which were denied by the Illinois Supreme Comt. On September 29, 1966, the defendant filed a pro se post-conviction petition in the trial court which was accompanied by a motion that he be allowed to proceed in forma pauperis and that counsel be appointed to represent him in that proceeding. The gist of that petition was that he was denied due process of law in that his trial attorney was prevented by law enforcement authorities from having pretrial interviews with an accomplice who testified for the State at defendant’s trial. This accomplice was allegedly held in custody before and throughout the trial. On December 19, 1966, the trial court, without appointing counsel, denied defendant’s post-conviction petition and found that the supreme court’s dismissal of defendant’s motion for leave to appeal was res judicata as to defendant’s request for a post-conviction hearing. The defendant appealed the trial court’s denial of his post-conviction petition to the Illinois Supreme Court. The supreme court reversed (People v. Butler (1968), 40 Ill.2d 386, 240 N.E.2d 592) and remanded for a determination of indigence and, upon a determination of indigence, for the appointment of counsel. The supreme court specifically found that “the post-conviction petition was not barred by our [its] dismissal of the untimely attempt to take a pro se appeal.” (40 Ill.2d at 388, 240 N.E.2d 593.) On January 19, 1971, defendant, with the aid of appointed counsel, filed his supplemental petition for post-conviction hearing in the trial court. Among the added allegations were: that the court-appointed trial counsel acted incompetently; that certain jury instructions were incurably prejudicial; that the sheriff, who testified for the State, was in charge of the jury; and that defendant’s sentence of 10 years to life constituted cruel and unusual punishment. The State made a motion to dismiss and, on September 16, 1971, the trial court entered an order granting said motion and denying defendant’s supplemental petition witthout an evidentiary hearing. The present appeal is from that dismissal.

The defendant raises six contentions in this appeal; first, that he was denied his right to adequate representation by appointed counsel at his trial; secondly, that the incompetency of his counsel at trial requires that the Post-Conviction Hearing Act “provide a proper vehicle for review of those issues as to which review by direct appeal has been unconstitutionally denied by deprivation of the right to appeal”; thirdly, that the trial court erred in refusing “to recognize that the jury was improperly influenced by its bailiff and that defendant was thereby denied a fair trial”; fourthly, that the sheriff’s office impeded the preparation and presentation of a “proper defense”; fifthly, that the defendant’s conviction must be reversed “because the jury in returning its verdict of guilt did not presume him innocent and did not find him guilty beyond a reasonable doubt”; and lastly, that the defendant’s sentence of 10 years to life imprisonment for the offense of “simple burglary” must be reduced.

The defendant correctly points out that in order to sustain a showing of incompetence of trial counsel sufficient to warrant a reversed conviction, the defendant must clearly establish, (1) actual incompetence by the trial attorney in the performance of his duties, and (2) substantial prejudice, without which the outcome would probably be different. (People v. Morris (1954), 3 Ill.2d 437, 121 N.E.2d 810.) The same standard is applicable in a post-conviction hearing. People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83.

Under the defendant’s contention of inadequate representation of counsel he alleges at least seven separate instances of incompetency. The general response of the State to these allegations has been to reiterate the heavy burden placed upon the defendant to show a lack of a fair trial due to incompetence of counsel under the Morris test and to suggest that the defendant’s appointed counsel committed “at worst, a few minor mistakes.” As noted in defendant’s reply brief, the State has failed to respond to certain of the alleged instances of incompetency advanced in defendant’s main brief. While the defendant contends that each of the aHeged instances of incompetence is sufficient to sustain a finding of inadequate representation of counsel, he also contends that the appointed counsel’s defense, “taken as a whole, reglected [sic] such incompetence as to preclude the possibility of a fair trial and a finding of innocence.” In lieu of a protracted discussion of each of the several alleged instances of incompetency we will address ourselves only to such allegations as are contained in the 1961 record before us.

Our examination of the record of the 1961 trial confirms that the defendant’s appointed counsel tendered two jury instructions which included either the term “preponderates” or “preponderance.” The first of these instructions, “Defendants’ Instruction # 2,” read as follows:

“You are instructed that in passing upon the question of the guilt or innocence of the defendants, or either of them, if upon any disputed fact or state of facts the evidence in the case, considered in light of the court’s instructions, is evenly balanced, and you are unable to say which way the evidence preponderates, you have no right to give the benefit of doubt to the prosecution, but in such case the finding on such facts or state of facts should be for the defendants.”

Although the other instruction, “Defendants’ Instruction # 8,” was not so egregious an instruction, it also made reference to “the preponderance of evidence.” These two instructions evidence an unwarranted and undesirable encroachment upon the reasonable-doubt standard particularly when proffered by one charged with defending, i.e., protecting the rights of, a person accused of a crime. Another instruction tendered by defendant’ s appointed counsel, “Defendants’ Instruction # 5,” defined “reasonable doubt.” Even prior to defendant’s 1961 trial our supreme court had disapproved of instructions defining “reasonable doubt” and had recommended that such instructions be discontinued (People v. Davis (1950), 406 Ill.215, 92 N.E.2d 649; People v. Casey (1932), 350 Ill. 522, 183 N.E. 616; People v. Schuele (1927), 326 Ill. 366, 157 N.E. 215) since:

“It [reasonable doubt] is a term which needs no definition, and it is erroneous to give instructions resulting in an elaboration of it.” (People v. Schuele, 326 Ill. 366, 372, 157 N.E.2d 215, 217).

Hence, the proffering, by defendant’s appointed counsel, of an instruction defining “reasonable doubt” is another distressing example of his lack of familiarity with criminal procedure.

The record before us reflects not only the foregoing acts of inadequacy by defendant’s appointed counsel, but instances where his failure to act manifested his apparent inability to protect the defendant. One such error of omission by defendant’s appointed counsel was his failure to object to "People’s Instruction No. 8,” wherein the State defined “reasonable doubt” as follows:

“The court instructs the jury, as a letter of law, that the doubt which the jury is allowed to retain must be a reasonable one. A doubt produced by undue sensibility of the juror in view of the consequence of his verdict is not a reasonable doubt, and a juror is not allowed to create sources or material of doubt by resorting to trivial and fanciful suppositions and remove conjectures as to possible states of fact differing from that established by the evidence. You are not at liberty to disbelieve as jurors if from the evidence you believe as men. Your oath imposes on you no obligation to doubt when no doubt would exist if no oath has been administered.”

In view of the cases previously mentioned defendant’s appointed counsel should have objected to the above definition as an unnecessary and prejudicial elaboration of tire term “unreasonable doubt.” Another error of omission occurred when defendant’s appointed counsel failed to object to “People’s Instruction rqfc 5” which included, among other things, the following sentence,

“This presumption of innocence is not intended to aid any one who is in fact guilty of crime to escape, but is a humane provision of the law intended, as far as human agencies can, to prevent an innocent person from being convicted.”

While giving of this instruction may not have been reversible error at the time of defendant’s trial (People v. Gerold (1914), 265 Ill. 448, contra, People v. Scarbak (1910), 245 Ill. 435), it should have been objected to by defendant’s appointed counsel. A more salient error of omission occurred when defendant’s appointed counsel failed to submit an instruction on accomplice testimony. Our supreme court has held that the trial court’s refusal to give such an instruction is reversible error because of the inherently suspect and damaging nature of accomplice testimony (People v. Zaransky (1935), 362 Ill. 76, 199 N.E. 104), and has found error even where a cautionary instruction was given which implied that accomplice testimony, if believed, could be given weight equal to that of other evidence (People v. Jackson (1940), 375 Ill. 203, 30 N.E.2d 654; People v. Millard (1938), 370 Ill. 214, 18 N.E.2d 211). In the instant case, the testimony of the accomplice, Douglas Clark, was crucial to the State’s case, which otherwise was supported only by highly questionable circumstantial evidence. The failure of defendant’s appointed counsel to tender an instruction on accomplice testimony is but one more serious indication of such counsel’s lack of preparation or infamiliarity with the criminal process.

The cumulative effective of the foregoing instructions tendered by defendant’s appointed counsel together with the failure to object to certain of the State’s instructions and the failure to tender appropriate and advantageous instructions present a substantial case of inadequacy of counsel, but we need not base our conclusion that the defendant was denied his constitutional right to a fair trial on these findings alone.

The meager representation afforded defendant by his appointed counsel was further frustrated by the trial court’s rulings on certain of the objections raised by defendant’s counsel. One objection made by defendant’s appointed counsel, and overruled by the trial court, pertained to the fact that a prosecution witness, Sheriff Oren Gross, was the bailiff and was in charge of the jury. Although the record is unclear as to how continual or intimate the association between Sheriff Gross and the jury was, such interaction was improper and should have been corrected when called to the attention of the trial court. (People v. Kawoleski (1924), 313 Ill. 257, 145 N.E. 203.) The other objection made by the defendant’s appointed attorney, and apparently overruled by the trial court, concerned the opportunity to interview the State’s principal witness, Douglas Clark, prior to his testimony at trial. The objection was advanced at the defendant’s 1981 trial together with his counsel’s allegation that the sheriff’s office had impeded his preparation for trial by preventing him from interviewing Clark the afternoon previous to defendant’s trial. In response to counsel’s objection the trial court stated, “Well, I don’t know that you have any right to talk to him, other than as a witness, his name was listed as a witness.” The witness was then allowed to testify and defense counsel’s request was ignored. It is evident that the trial court’s indecision resulted in the overruling of counsel’s objection and the denial of an opportunity to interview the witness. Subsequently, Richard Brazell, deputy sheriff of Hardin County, testified in response to a question by defense counsel when Clark was placed in the jail prior to being sent to Menard:

“Brazell: Yes, sir, it was on City Council night, I remember telling you not to go back there to where he was.
Flynn: You were under specific orders not to let anyone back there?
Brazell: No sir, I wasn’t under specific orders, you had no more right in there anymore than anyone else.
Flynn: You wouldn’t let me go talk to him?
Brazell: I don’t let nobody go in there fooling with my prisoners at any time.
Flynn: But I did start back to see him and you stopped me?
Brazell: I stopped you, yes sir.”

Brazell then testified that Clark was returned to his custody from the penitentiary the day before the trial. He was asked if Clark had been in jail the night before the trial and answered that Clark had been in his possession. When Brazell was asked where Clark was kept, he answered “Where I put him, that is my business.” At that point the following occurred:

“Flynn: Your Honor, I request that the witness—
Gullett: What does it make any difference, he is the Deputy Sheriff, he has got him in his custody.
Flynn: My purpose is this Your Honor, I inquired yesterday afternoon and I was told by two police officers that he wasn’t in town, that he wasn’t in the County—
A. He has been in the County since five minutes after eleven yesterday morning.
Flynn: I don’t know who to believe in the matter, one tells you one thing, and someone else tells something else.
The Court: I think he has answered the question, said he has been here since five minutes after eleven yesterday morning.
A: There is another deputy sheriff who will testify to the same thing, another witness.”

It thus becomes apparent that defense counsel was frustrated in his efforts to interview the witness Clark. Although, this, in and of itself, may not be within the purview of the Post-Conviction Hearing Act, there can be little dispute that it may be considered in ascertaining whether the defendant was denied his constitutional right to a fair trial.

It is our conclusion that the cumulative effect of the multitude of errors here present, corroborated by the 1961 record before us, compels us to find that the defendant was denied his constitutional right to a fair trial. In view of this finding the defendant must be granted a new trial. Since our conclusion is confirmed by the record of defendant’s 1961 trial, we have, in order to expedite the handling of defendant’s case, adopted the unusual procedure of remanding this case for a new trial without the aid of an evidentiary hearing on defendant’s supplemental post-conviction petition.

Accordingly, we reverse the order entered by the circuit court of Hardin County denying defendant’s request for post-conviction relief and direct that the defendant be granted a new trial.

Reversed and remanded with directions.

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