author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Philip B. Moore, Defendant-Appellant.
    (No. 73-168;
    Third District
    May 7, 1974.
    Franklin S. Wallace, of Rock Island, for appellant.
    L. E. Ellison, State’s Attorney, of Morrison, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant was found guilty of attempted murder and attempted burglary by a jury and sentenced to a term of 8 to 20 years on the former charge and 5 to 20 years on the latter charge. This is the second time the case has been before this court. See People v. Moore, 6 Ill.App.3d 568, 286 N.E.2d 6.

Defendant was initially tried and sentenced to 10 to 20 years for attempted murder and aggravated battery, and 5 to 30 years for burglary; In both trials the defense was insanity.

At the time this court first considered this case it was of the opinion that certain evidence produced after trial and contained in the probation report and investigation sufficiently impeached the testimony of State witness Dr. Rydak so as to warrant the granting of a new trial.

On March 3, 1969, in the late afternoon defendant met a friend, Kenneth Finkle, in Sterling, Illinois. The defendant was armed with a .22 Colt automatic revolver. The two visited a few places in Sterling and according to Finkle’s testimony they were looking for someone to kill. At one point defendant suggested they kill a young lady known to Finkle, but Finkle prevented this by expressing his disapproval. Finkle was apparently unarmed. About 9 P.M. they saw a woman walking toward her car parked in the Y.M.C.A. parking lot. She had been shopping in Sterling. Neither the defendant nor Finkle knew her. Defendant said to Finkle, “Let’s go get her” and the defendant ran toward the woman who was by then entering her automobile. Finkle did not follow. He observed defendant trying to push his way into the car and testified the woman started to scream. Defendant then said, “Lady, you’re dead” and continued to push his way into the car. He then fired two shots at the lady.

The victim testified that when defendant approached the car he kept pushing and trying to get her to slide over in the car. She commenced screaming and he put his hand over her mouth, then told her she was dead.

At the first trial defendant testified that as he neared the car he pulled out the gun and pulled the hammer back. The victim heard the noise and turned and started to scream. He then pushed her down on the front seat of the car. He further testified, “She was more or less laying on her back and I half straddled her, put my left hand on her mouth to stop her from screaming and attempted to fire a shot from the gun which was aimed at her forehead.” He then testified that he fired a round but the gun wouldn’t fire and he “reached up with my left hand and pulled the mechanism on the automatic so it would eject the bad shell and reload it.” According to this own testimony he then re-aimed the gun at the victim’s forehead and fired twice. He stated that he could not remember if he told Finkle, “Let’s go get her” when he spotted the victim but denies that he intended to rob, rape or kidnap her but he intended only to hurt her. He further testified he stopped shooting because the gun jammed and while he was in the process of unjamming the same he “suddenly realized what was going on” and that he yielded to the victim’s pushing. He testified that the victim did fall to the pavement and that he did kick her while she was lying on the pavement. He further testified that he did not know if he tried to shoot her again;

Finkle testified that shortly after the two shots were fired he ran to the passenger’s side of the car to warn defendant the police car was coming. He testified that defendant did not appear aware of the approaching squad car. He further testified that he proceeded to walk out of the parking lot when the defendant ran past him.

At the initial trial defendant testified he ran from the scene with the gun in his hand; that he ran toward an alley, down the alley and at the end of the block saw a young boy in a car talking to a girl in another car; he asked them for a ride and then offered them $10. The boy refused and the defendant walked and ran 20 blocks to his home. His home was only 10 blocks away but he did this to avoid being caught. En route he hid the gun in a tree and later advised the police where it was hidden.

On cross-examination defendant testified he told the victim she was dead “meaning that I was going to harm her” and “I pulled the trigger on the gun and nothing happened like it was dead and I ejected the shell manually, let the slide go back, fired a shot at this time. I fired the shot, Mrs. Mattox I remember swung around in such a manner to throw the gun off to the side. I think it hit the floor of the car. This was on the passenger side and I re-aimed the gun at Mrs. Mattox’s forehead and pulled the trigger again. At this time I pulled the trigger Mrs. Mattox turned her head to the side and the bullet then struck in the side of her head. I thought in front, I thought I saw blood coming from the front.” He further testified that she was screaming and asking him not to do this.

At the second trial, the one involved in this appeal, the defendant testified that he had no memory as to what occurred on March 3, 1969, nor did he have any recollection of the events of the first trial. He did not deny any part of his testimony at the first trial but merely testified that he could not remember what occurred and in fact could not remember testifying at that trial.

Appellant first contends that the State failed to prove defendant’s sanity beyond a reasonable doubt, contending that defendant had presented evidence which raised a doubt as to defendant’s sanity at the time of the commission of the crime.

The law presumes aH men to be sane. (People v. Lono, 11 Ill.App. 3d 443, 297 N.E.2d 349; People v. Groves, 100 Ill.App.2d 171, 241 N.E.2d 622.) Once evidence of insanity is introduced by either the State or the defendant presumption ceases and it becomes the State’s burden to prove beyond a reasonable doubt that at the time of committing the crime the defendant was legally sane. Ill. Rev. Stat, ch. 38, par. 3 — 2 (a), (b); People v. Le May, 35 Ill.2d 208, 220 N.E.2d 184.

The defendant called Dr. Daniel Schiff. a physician specializing in psychiatry, to testify. He testified that he had seen defendant on a number of occasions and at the first such interview on August 6, 1969, he obtained defendant’s history and testified that defendant related to him the events that occurred on the date of the crime. He testified as to the substance of the conversation with the defendant and concluded that defendant at the time of the commission of the crime suffered from a mental illness called paranoid schizophrenia. He further testified that defendant at the time the crime was committed was unable to control his impulses and to conform to law, even though he knew that he was doing a wrong act. He testified that he again saw the defendant on November 30, 1972, at which time he noted an improvement in defendant’s condition from the last time he had seen him in 1969. On cross-examination Dr. Schiff described paranoid type schizophrenia and acknowledged that his opinion was based in part on the assumption that defendant was telling the truth. He further testified that the distinction between a schizoid personality and a schizoid paranoid is that the former is shy and retiring, withdrawn and does little else. The other is “over the line and is quite psychotic or crazy.” He further stated that it is possible for a person to be unable to conform his conduct to the requirements of the law and not be suffering from a mental disease and stated that these persons are caHed criminals. He acknowledged that the fact that the person might have an irresistible impulse to do something doesn’t necessarily mean he is mentally ill or has a mental disease. Dr. Schiff concluded that in his opinion defendant was 100 percent incapable of conforming his conduct to the law at the time of the commission of the crime.

Dr. W. S. Rydak was caHed by the State and testified as to interviews he had with the defendant. He like Dr. Schiff is a physician specializing in psychiatry. The first interview was held on September 3, 1969. He obtained the history of defendant and testified that the defendant had related to him the incidents that occurred on the day of the crime. He testified that in his opinion the defendant was not suffering from a mental illness or disease at the time of the commission of the crime. He did testify that the defendant was unable to appreciate the criminality of his conduct at the time he committed the crime because of stress imposed upon him. He stated that defendant was not suffering from schizophrenia; that on examination the defendant’s mental grasp was good; that there was no evidence of a mental deficiency and that while the defendant lacked capacity to conform his conduct to the requirements of law at the time the act was committed this was not a mental illness but an emotional stress.

The facts in' the case illustrate that defendant left his home on the evening in question carrying a loaded revolver. According to the witness Finkle defendant advised him that he was looking for someone to kill and that he had first discussed the possibility of killing another girl, only to be restrained by Finkle. The testimony further illustrates that defendant had a clear recollection of the events leading up to the crime, the commission of the crime, and events subsequent to the same. His testimony of where he and Finkle had been, the beverages they consumed, what they had done and how long they had stayed at the various locations in Sterling, indicates total awareness of the events leading up to the crime. The description of the events that occurred at the time of the shooting are in great detail, as is his description of the flight from the scene of the crime, including his hiding of the gun and the fact that he disclosed the location of the gun to the police officer.

The shooting itself was premeditated and only the selection of the victim can be described as being on impulse.

As stated in People v. Lono, supra, when a presumption of sanity has been overcome the question of defendant’s sanity or insanity is to be determined by the whole evidence without reference to the presumption. People v. Saylor, 319 Ill. 205, 149 N.E. 767.

In People v. Lono, supra, the facts are similar in nature to the case at bar and equally bizarre. In that case the defendant Lono shot and killed a drunk who was lying in the doorway of a vacant building for no explainable reason, without words or without provocation. There, too, the defendant testified he remembered nothing about the day of the shooting. The court there stated:

“The trial court heard his testimony and was under no obligation to believe him. As the trier of the facts the court was the judge of the credibility of the witnesses and it could have believed that Lono was conscious of what took place.” (11 Ill.App.3d at 449.)

The same applies to the jury in the case at bar. They were the trier of facts and at the hearing of this case were at liberty to believe or disbelieve the defendant’s testimony when he denied any present memory of the events that took place on the day of the crime. It was for the jury to decide from the totality of all evidence whether the defendant was sane or insane at the time of the commission of the crime. His flight from the scene after the crime had been committed and his evasive action attempting to buy a ride to his home some 10 blocks away and walking 20 blocks to get there to avoid the police, and his subsequent concealment of the gun all indicate an awareness on his part of the criminal nature of the act and the jury was entitled to consider this along with the testimony of the two psychiatrists in arriving at their decision. The defendant’s testimony clearly illustrates a total awareness of the events leading up to and during the commission of the crime. As stated in People v. Burress, 1 Ill.App.3d 17, 272 N.E.2d 390, it is for the trier of facts to determine from all the evidence whether the prosecution has satisfied the burden of proving the defendant’s sanity.

Appellant contends that Dr. Rydak’s testimony did not rebut the testimony of Dr. Schiff and that Rydak’s testimony has been impeached as a matter of law. His basis for this contention arises out of our previous decision in his case. (People v. Moore, 6 Ill.App.3d 568, 286 N.E.2d 6.) There we noted that the probation investigation report contained a written report of Dr. Rydak which stated the following:

“The diagnosis, as a result of observation of the patient during the interview, the longitudinal history as given by the patient (no other information was available to the examiner at this time) and observation of his responses, his attitude, his affect and his trend of thought, is: * * * Personality Disorder, Paranoid-Schizoid Behavior Pattern.” (6 Ill.App.3d at 570.)

That report further stated:

“At the time he committed the offense on March 3, 1969, he was unable to appreciate the criminality of his conduct because of stresses which were imposed upon him: * * *
At the time he committed the offense on March 3, 1969, he lacked the capacity to conform' his conduct to the requirements of the law.” 6 Ill.App.3d at 570.

It must be noted in the case at bar that Dr. Rydak’s testimony was consistent with that stated in the report, with the explanation as to the meaning of these particular paragraphs. While the probation report was not referred to directly in his testimony either on direct or cross examination, Rydak did testify that the stresses imposed upon the defendant wére not brought about by some mental disease or mental illness but by reason of a personality disorder. Dr. Rydak testified that at the time defendant committed the acts he was unable to appreciate the criminality of his conduct and lacked the capacity to conform his conduct to the requirements of law because of stress which was imposed upon him. As stated in People v. Lono, supra:

“Evidence that a defendant has been disturbed in mind and excited do not justify a reasonable doubt of sanity. (Montag v. People (1892), 141 Ill. 75, 30 N.E. 337.) Evidence of idiosyncratic behavior and irresponsibility of conduct are insufficient to raise the issue. (People v. McBride (1970), 130 Ill.App.2d 201, 264 N.E.2d 446.) Evidence of personality disorders does not constitute a mental defect within the meaning of the statute (People v. Williams (1967), 38 Ill.2d 115, 230 N.E.2d 224) * * *."

The statute provides that a person is not criminally responsible for conduct if at the time of the act he has a “mental disease or mental defect.” Dr. Rydak’s testimony tends to establish defendant was not afflicted by either. (Ill. Rev. Stat, ch. 38, sec. 6 — 2.) We feel there was more than sufficient evidence on this point to permit a jury to consider the question and we further feel the jury was correct in its conclusion.

Defendant next contends that the court failed to instruct the jury of the term “murder.” The court gave the following instructions:

“A person commits the crime of attempt who, with the intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder. The crime attempted need not have been committed.”

The court also gave the following instruction:

'To sustain the charge of attempt the State must prove the following proposition:
First, that the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second, that the defendant did so with the intent to commit the crime of murder; and
Third, that the defendant was then sane.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

Both instructions are from I.P.I. and defendant’s only contention is that the court’s failure to instruct the jury of the term of "murder” permitted the jury to guess, speculate and conjecture what the term “murder” really is — contending that when the charge is attempt the court must define the crime attempted.

This contention was answered by the supreme court in People v. Gersbacher, 44 Ill.2d 321, 255 N.E.2d 429. In that case an instruction similar in nature was given. The supreme court said:

“Although it would have been preferable to instruct the jury on the elements of the crime attempted, after reviewing the record before us we find that the evidence presented to the jury regarding the attempted murder was such that no error was occasioned by the failure of the court to give an instruction in this regard.” (44 Ill.2d at 325-326.)

The same can be said in this case.

No error was committed by the lower court in its failure to give the murder instruction as requested here by defendant.

Defendant next contends that the trial court committed error in allowing the prior testimony of the defendant to be read to the jury in the States case in chief, citing the dissenting opinion in Miller v. People, 216 Ill. 309, 74 N.E. 743. In that case as here the defendant’s testimony given at a prior trial of the cause was read to the jury by the court reporter, but not in total. The State was allowed to elicit just those questions and answers from the reporter that the State felt appropriate. The supreme court ruled this to be error but stated that his prior testimony was admissible. “The statements or admissions made by him when so testifying were in nowise privileged, but might lawfully be proven upon another trial for consideration in determining his guilt or innocence.” The dissent, three judges dissenting, held that permitting his prior testimony to be introduced at the trial was a violation of the defendant’s right to remain silent.

In People v. Luna, 37 Ill.2d 299, 226 N.E.2d 586, defendant’s testimony given at a hearing on his motion to suppress a confession was used to impeach him at the trial of the case. The supreme court ruled this to be error and said:

“In order to avail himself of his constitutional rights under our procedure, defendant was compelled to move to suppress the confession. It also appears from the record that his testimony was essential on this motion. Defendant was therefore placed in the dilemma of either foregoing his constitutional right to a suppression of an unlawful confession, or of running the risk of his testimony being used against him at the trial. We think it is no answer to say that defendant need not have taken the stand at his trial. One ought not be forced to choose between availing himself of two equally valuable rights. * * * This is unlike the situation in Miller v. People, 216 Ill. 309, 74 N.E. 743, where the defendant voluntarily availed himself of his right to testify at his first trial and the admissions were used against him at his second trial for the same offense. It was unnecessary for him to testify at his first trial in order to preserve to him all of his constitutional guaranties.” 37 Ill.2d at 308.

In Harrison v. U.S., 392 U.S. 219, 20 L.Ed.2d 1047, 88 S.Ct. 2008, the United States Supreme Court said:

“In this case we need not and do not question the general evidentiary rule that a defendant’s testimony at a former trial is: admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.” 392 U.S. at 222.

The record clearly establishes that the defendant waived his right to remain silent in giving testimony at the first hearing of this cause.

Defendant’s final contention is that the sentence imposed upon him was excessive. He was sentenced to serve a term of 5 to 20 years for burglary and 8 to 20 years for attempted murder.

As we stated in People v. Short, 4 Ill.App.3d 832, 281 N.E.2d 783:

“We have frequently recognized that the propriety of imposing a sentence is normally an issue on which the trial court is given wide latitude. (People v. Leggett, supra; People v. Hanserd, 125 Ill.App.2d 465, 261 N.E.2d 317.) While by rule the Supreme Court has vested this court with the power to modify sentences (Ill. Rev. Stat, ch. 110A, par. 615(b),) we have nevertheless always indicated that this power should be exercised with caution. Normally the trial court is in the best position to determine the circumstances, to weigh credibility, and to evaluate the record made at the hearing in aggravation and mitigation.”

The sentence imposed upon the defendant falls within the limitations prescribed by the applicable statute. The facts of the case justify the . imposition of the penalty handed down by the lower court and the lower court was much better positioned than we are in making the determination of the time to be served. There is nothing in this record .and certainly nothing in the abstract of the record that would indicate to this court grounds to question the judgment of the lower court and modify the sentences.

For the reasons stated herein the judgment of the lower court is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    Mary A. Larkin et al., Plaintiffs-Appellees, v. Michael J. Howlett et al., Defendants-Appellants.
    (No. 12270;
    Fourth District
    May 8, 1974.
    William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellants.
    O. Kenneth Thomas, of Harvey, for. appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 307 (a)(1) (Ill. Rev. Stat. 1971, ch. 110A, sec. 307(a)(1)) from the granting by the circuit court of Sangamon County of a temporary injunction restraining the defendants from taking any action to terminate the employment of plaintiffs.

On March 30, 1973, plaintiffs filed a complaint the first count of which alleged that plaintiffs are “certified” employees of the Secretary of State’s office who have had their employment terminated for reasons in contravention of the State Personnel Code. Furthermore, the complaint alleged that immediate and irreparable injury will be caused if their employment is terminated, and that they are without an adequate remedy at law to prevent a deprivation of their property interest in continued certified employment. Attached to the complaint were letters from the Department of Personnel to the individual plaintiffs informing them of the termination of their employment due to the expiration of their work permits and for budgetary reasons.

On March 30, 1973, the circuit court entered an order granting a temporary restraining order barring defendants from “undertaking any act terminating the employment of Plaintiff[s].” On April 3, 1973, defendants moved to dissolve the temporary restraining order and dismiss the complaint alleging that plaintiffs are temporary and not certified employees. Attached to this motion was the affidavit of the State Director of Personnel verifying the alleged temporary status of the plaintiffs. On April 18, 1973, the circuit court entered an order stating that arguments of counsel were heard and that a temporary injunction should issue restraining defendants from terminating plaintiffs’ employment. It is that order from which this interlocutory appeal is taken.

On appeal the appellees did not submit briefs nor did they argue their cause before this court. The appellants have presented the following issues to this court for resolution: (1) Whether plaintiffs have a property interest to protect; (2) Whether this dispute is ripe for judicial determination; (3) Whether plaintiffs have an adequate remedy at law; (4) Whether plaintiffs are likely to succeed on the merits; and (5) Whether plaintiffs have exhausted their administrative remedies. We do not, however, deem a resolution of these issues to be necessary for a proper disposition of this cause, and we take notice of the fact that the complaint is totally defective and completely fails to state a cause of action upon which injunctive relief may be granted.

It is a well-settled rule that when a complaint totally fails to state a cause of action, its insufficiency can be questioned at any time for “there is a substantial and material difference between alleging a good cause of action in a defective manner and in stating no cause of action.” (Owens-Illinois Glass Co. v. McKibbin, 385 Ill. 245, 52 N.E.2d 177, 180.) This court then for the first time on appeal may take cognizance of a complaint that totally fails to state a cause of action even though objections to such fatal defects were, as in the present case, not made or were only improperly made in the trial court.

The complaint for a temporary injunction must specify all the facts necessary to justify the unusual relief sought. (County of Du Page v. Robinette, 77 Ill.App.2d 167, 221 N.E.2d 769.) Where the preliminary injunction is predicated on the face of the complaint, the facts relied upon to warrant injunctive relief must be alleged with certainty and precision. (Phelan v. Wright, 54 Ill.App.2d 178, 203 N.E.2d 587; Stenzel v. Yates, 342 Ill.App. 435, 96 N.E.2d 813.) The complaint in the instant case is wholly devoid of any facts necessary to substantiate plaintiffs’ claims that they are, in fact, certified employees, thus giving them a property interest worthy of judicial protection. The letters attached to the complaint from the Department of Personnel terminating plaintiffs’ employment are silent as to plaintiffs’ certified status leaving only the complaint’s mere conclusions in that regard to substantiate the issuance of injunctive relief.

Furthermore, to establish a cause of action for injunctive relief plaintiffs must allege facts necessary to establish that their legal remedy is inadequate and that irreparable injury will result should injunctive relief not be granted. Consequently, allegations in a complaint that are conclusionary in those respects are insufficient. (Schlicksup Drug Co. v. Schlicksup, 129 Ill.App.2d 181, 262 N.E.2d 713.) The complaint in the instant case contains only general allegations of irreparable injury and an inadequate legal remedy and is, therefore, entirely conclusionary and inadequate to substantiate the granting of injunctive relief.

For the reasons herein stated the order of the circuit court is reversed and the cause is remanded with directions to dissolve the temporary injunction.

Reversed and remanded.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE KUNCE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David A. Baer, Defendant-Appellant.
    (No. 12344;
    Fourth District
    May 8, 1974.

      Ora J. Baer, II, of Champaign, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Donald R. Parkinson, Assistant State’s Attorney, and Linda Marcus, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE KUNCE

delivered the opinion of the court:

A jury in Champaign County found the defendant guilty of theft of doughnuts and a canned deviled ham from “Jewel Companies, Inc., a corporation, d/b/a Eisner Food Store.” The State called two police officers as witnesses, who were not listed on the State’s list of witnesses furnished defendant prior to trial. One witness, Whipple, established the chain of possession and condition of the ham introduced in evidence as a State exhibit; the other witness, Andrews, was permitted to testify after the People had rested as to the ownership of the merchandise and the location of the store. Two other officers watched the defendant take the merchandise, put it in his pocket and walk through the check-out counter without paying for it. He was taken to a back room in the store, questioned without being advised of his constitutional rights, produced the ham and signed a statement. The written statement was suppressed; however, the officer was permitted to testify that after defendant was arrested and upon entering the doorway of the manager’s office at the back of the store, he said: “O. K. You got me,” and then he gave the officer the ham.

The motion to suppress did not specify any particular statements that were made. The trial court did not consider the defendant’s oral statement as involuntary. The record is bare of any questions put to defendant by anyone prior to his making the exclamation. Defendant’s objection at trial was based solely upon hearsay. The defendant contends that the People failed to go forward with evidence in proving the confession voluntary.

It is not decisive of the issue that the State did not call any witnesses at the hearing on the motion to suppress. The trial court’s decision as to the voluntary nature of a defendant’s statement will not be set aside unless contrary to the manifest weight of the evidence. (People v. Pittman (1973), 55 Ill.2d 39, 302 N.E.2d 7.) The source of - the evidence does not determine the voluntary nature of a statement. Voluntariness must be determined by the totality of all the circumstances surrounding the making of the same. (People v. Weinstein (1970), 46 Ill.2d 222, 263 N.E.2d 62.) There is no evidence in the record of any incriminating statement made by the defendant prior to his giving the ham to the officers, nor of their asking any questions prior to making the oral statement.

Defendant was placed under arrest and spontaneously volunteered his statement prior to any questioning by the officers. Under these circumstances, there is no requirement that Miranda warnings be given. The police are not required to interrupt a suspect in the process of making such a statement. (In re Orr, 38 Ill.2d 417, 231 N.E.2d 424, cert. denied, 391 U.S. 924.) The trial court’s determination of voluntariness does not appear to be contrary to the manifest weight of the evidence.

Defendant next contends that it was error to permit a police officer to testify for the State in identifying an exhibit (the ham) since the officer was not on the State’s list of witnesses and that under such circumstances the State has the burden to show that the witness was not known and his name could not have been obtained by the exercise of due diligence prior to the trial as provided in section 114 — 9(b) of the Code of Criminal Procedure. (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 9 (b)). The statute provides that the court may allow unlisted witnesses to testify and it provides a standard to be applied at the trial court level in either accepting the testimony of unlisted witnesses, denying the same or granting a continuance and in the absence of a showing of surprise or prejudice, the trial court’s discretion will not be reviewed. (People v. Steel (1972), 52 Ill.2d 442, 288 N.E.2d 355; People v. Kenzik (1961), 22 Ill.2d 567, 172 N.E.2d 162.) The burden of showing surprise or prejudice is on the defendant. People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595, cert. denied, 393 U.S. 1083.

In both Baby and Steel the court in determining whether there had been prejudice, considered the fact that no request for continuance was made; consideration has been given also to whether or not the testimony of the unlisted witness included matters critical upon the issue of guilt. (People v. Holmes (1973), 12 Ill.App.3d 713, 298 N.E.2d 738.) In Baby the court clearly indicated that the “surprise or prejudice” standard applied in such cases was one of reversible error, rather than the test for allowance of testimony. Defendant was not prejudiced by permitting Police Officer Whipple to testify only to the chain of possession of the ham. The stolen property need not be introduced in evidence in a theft case as defendant also contends at length in argument. A conviction for theft can rest solely on the testimony of witnesses who saw the theft, as they did in this case. (People v. Jamison (1973), 11 Ill.App. 3d 516, 297 N.E.2d 664.) The exhibit introduced through the identification by the unlisted witness was merely cumulative. It was not critical as to defendant’s guilt and could not have surprised the defendant nor in any way hindered him in his defense. There was no request for a continuance. This is also equally applicable to the witness Andrews insofar as he was not listed in advance of trial as a witness.

Defendant also contends as to witness Andrews that the trial court erred when it allowed the State to reopen his direct examination after resting to identify the store from which the merchandise was taken. The court mistakenly thought the State had failed to prove which Eisner store was involved, when in fact the record clearly reflects that prior to allowing the State to reopen, witnesses had testified that the store was on Green Street. One gave the exact street address as 105 West Green Street in Champaign and stated that Eisners owned the can of ham. Thus, although Andrews was called for the limited purpose of establishing ownership, this had already been established and any error relating thereto is not prejudicial. His only new testimony was that Eisner Food Store was a division of Jewel Companies, Inc. This testimony occurred before the State was allowed to reopen direct examination. Proof of theft from Eisner Food Stores at 105 West Green was not a fatal variance between the indictment and the proof. The primary purposes for alleging and proving ownership are to enable the accused to prepare for trial and to prevent double jeopardy. Proof of ownership in the entity as specifically named and set out in the indictment does not have to be made in order to sustain a conviction. (People v. Harden (1969), 42 Ill.2d 301, 247 N.E.2d 404.) The existence of a corporation may be shown by the direct oral testimony of a person with knowledge of that fact. People v. McGuire (1966), 35 Ill.2d 219, 220 N.E.2d 447.

Permitting the State to reopen its case to make proof of corporate ownership rests in the sound discretion of the trial court and this discretion will not be interfered with except where it is clearly abused. (People v. Cross (1968), 40 Ill.2d 85, 237 N.E.2d 437; People v. Franceschini (1960), 20 Ill.2d 126, 169 N.E.2d 244.) The testimony of the witness that Eisners was a division of Jewel Companies, Inc., could not have taken the defendant by surprise, and we find no prejudicial error in the trial court permitting the reopening of the case for this purpose.

The defendant next complains that the prosecutor objected to the defendant’s closing argument and further stated “There are cases on point that any employee of the company can testify as to its status.” If this issue is treated as one of improper closing argument on the part of the prosecutor, the defendant waived that issue by his failure to object. People v. Edwards (1973), 55 Ill.2d 25, 302 N.E.2d 306.

Lastly, defendant argues that the ham should not have been introduced into evidence because the State did not show a continuous chain of possession. Since there is no requirement that the stolen property be introduced into evidence and there was testimony that the property was in fact stolen, the introduction of the ham itself would be cumulative and any error regarding its introduction would be harmless. All cases cited by the defendant on this contention involved prosecution for crimes where the nature of the substance involved is an element of the crime, such as drug offenses, contrary to the crime of theft. Where there is no evidence or claim of tampering and the witness’ positive identification of the exhibit is not impeached, tire witness’ testimony and even the exhibit itself would be properly admissible even though there was no perfect chain of possession shown. (People v. Nemke (1970), 46 Ill.2d 49, 263 N.E.2d 97, cert. denied, 402 U.S. 924.) There was no hint of tampering nor any impeachment of the testimony of the witnesses in the record. For the reasons stated herein, the judgment of the Circuit Court of Champaign County is affirmed.

Affirmed.

TRAPP, P. J., and SIMKINS, J, concur.


author: Mr. JUSTICE CRAVEN

text:
    The Department of Public Works and Buildings, Petitioner-Appellee, v. Hazel F. Brackemyre et al., Respondents—(Walter Bowman et al., Respondents-Appellants.)
    (No. 12105;
    Fourth District
    May 8, 1974.
    Summers, Watson & Kimpel and Engert & Sinder, both of Champaign, for appellants.
    William J. Scott, Attorney General, of Champaign (William P. Ryan, Assistant Attorney General, and James L. Capel, Jr., Special Assistant Attorney General, of counsel), for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

A petition was filed on October 4, 1965, in the circuit court of Champaign County on behalf of the State of Illinois, to condemn 17.11 acres of defendants’ land for the construction of Interstate Highway 74. Defendants filed a cross-petition, alleging the remainder of their property would be damaged by the taking. The cause was tried by a jury, which fixed compensation to the property owners at $14,000 for the land taken and at $10,000 for damages to the remainder.

The State sought condemnation of a portion of defendants’ 57-acre tract located adjacent to the eastern limits of the Village of Mahomet. The tract was bounded on the east by the Sangamon River. The sole access to the parcel was via a 200-foot-long, 25-foot-wide easement between the tract and Route 47 to the west. The western portion of the tract consisted of about 10 to 12 acres of even, high land that sloped slightly toward the river. A mobile home plat had been filed for about 7 acres of this portion of the tract, but no mobile homes were located on it. Adjacent to this upland portion of the tract was a 25-acre area that had previously been used for gravel mining. A portion of this was used as a garbage dump at the time of the filing of the condemnation petition. About 10 acres of this portion was filled with ponds in which no garbage was dumped. The remainder of the tract between the gravel mining area and the river had previously been used as a source for the recovery and sale of rich, black soil.

The petitioner introduced three appraisal witnesses whose testimony ranged from $9,500 to $11,800 for the value of the land taken under the petition. Their appraisals of the damages caused to the remainder ranged from $0 to $9,250. Defendants presented two appraisal witnesses, one of which valued the land taken at $53,535 and the other at $56,905.69. Their respective appraisals of damages to the remainder were $31,549 and $28,621.81.

Two issues are presented by this appeal. Defendants contend that the trial court erred in sustaining petitioners objection to defendants’ appraisal witness Barnes’ attempts to testify as to the price at which three of the mobile home lots had been purchased. Defendants also claim the trial court erred in refusing to declare a mistrial after one of the petitioner’s witnesses testified concerning the sale of the remainder of the tract for $20,000 after the filing of the condemnation petition.

The trial court refused to permit the jury to hear Mr. Barnes’ testimony concerning the individual value of each of the 48 mobile-home lots in the platted area. Defendants’ offer of proof showed three sales of these lots had been made at $1,000 each.

We find no merit in defendants’ contention that they were improperly restricted in presenting their evidence. The record indicates defendants’ witness Barnes gave his appraisal of the value of the tract as a whole. During cross-examination and upon redirect examination, the values Mr. Barnes placed upon the various portions of the tract, except for the portion covered by the mobile home plat, were elicited without objection. By implication, one must determine that the witness included the amount of the individual lots in his valuation; thus, it is apparent that defendants received the benefit of this proof whether or not Barnes was allowed to testify specifically as to the value of each lot. Defendants were not prejudiced by the court’s ruling. Forest Preserve District v. Wing, 305 Ill. 194, 137 N.E. 139.

During redirect examination of Frances Gutschenritter, one of petitioner’s appraisal witnesses, he was asked if there would be a purchaser for the remainder of the property not taken by the condemnation. His response was that there would be. On re-cross-examination this witness was asked if he had inquired as to any buyers for the property. His response was that he had, and he stated he talked to a Mr. Taylor who had paid $20,000 for it. Defense counsel asked two more questions on the same subject following this response. He then asked that the testimony be stricken and the jury ordered to disregard this voluntary statement by the witness. The motion was allowed. On the basis of voluntary production of improper testimony in front of the jury, defense counsel then moved for a mistrial. This motion was denied.

Whether the witness’ statement was responsive to the question or not, no error has been committed. The trial court directed that the remark be stricken and the jury was told to disregard it. A condemnation award wül be set aside on review and a new trial ordered if the trial court made erroneous rulings which might have misled the jury and which amount to prejudicial error. (Department of Public Works & Buildings v. Oberlaender, 42 Ill.2d 410, 247 N.E.2d 888.) Such error is not found in the record in the present case.

The jury heard the testimony and viewed photographs of the premises and their verdict is within the range of the testimony. There has been no clear showing that the verdict was the product of passion or prejudice or affected by palpable error. Therefore, the verdict should not be disturbed. Department of Public Works & Buildings v. Bloomer, 28 Ill.2d 267, 191 N.E.2d 245; Department of Public Works & Buildings v. Jensen, 11 Ill.App.3d 93, 296 N.E.2d 52.

The judgment of the circuit court of Champaign County is affirmed.

Affirmed.

TRAPP, P. J., and SIMKINS, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    Danny Williams, Plaintiff-Appellee, v. Joyce Deasel, Defendant-Appellant.
    (No. 11915;
    Fourth District
    May 8, 1974.

      Costigan, Wollrab, Fraker & Wochner, of Bloomington, for appeHant.
    Jerome Mirza, of Bloomington, for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This court granted leave to appeal from an order of the McLean County circuit court granting a new trial in a personal injury suit. The jury returned a verdict of $7,000 in favor of the plaintiff. The posture of the parties in this court is unusual. The defendant asks that the order of the trial court granting a new trial be reversed and the judgment originally entered in that court be reinstated. The plaintiff is insisting on a new trial. In event that we affirm the trial court in granting a new trial, the defendant requests that this court in its opinion correct certain alleged errors which occurred during the first trial and that we provide a road map for the trial judge on the second trial on such issues.

At the outset we find ourselves in a procedural vacuum as to just what authority we may have. The jury’s verdict in this case was returned about 9 P.M. one evening. Judgment was entered on the verdict, execution authorized and the jury discharged from further service. Thereafter, plaintiff’s attorney asked the court to rule on his motion for a mistrial based upon defense counsel’s argument concerning excluded medical evidence. On the following day, the trial court entered an order allowing the mistrial, vacated the judgment entered on the verdict, and ordered a new trial.

It is quite clear from the record that no written motion of any kind was filed before the trial judge after verdict and judgment. Instead plaintiff orally renewed his motion to declare a mistrial. Indeed it is candidly stated in his brief that “plaintiff’s renewal of his motion for mistrial made during the course of the trial appears to be the only motion made after trial ■ that could be called a post-trial motion’ within the meaning of Rule 306 and will be treated as such for the purpose of this brief.” There is, however, an actual and a functional difference between a motion for a new trial and a motion for mistrial. In 66 C.J.S. New Trial § 1(c), this difference is clearly delineated in the following language:

“A. mistrial and a new trial are not the same thing in name or effect. There is a marked difference between a court’s granting a motion for a new trial and declaring a mistrial; the former contemplates that a case has been tried, a judgment rendered, and on motion therefor said judgment set aside and a new trial granted, while the latter results where, before a trial is completed and judgment rendered, the trial court concludes that there is some error or irregularity that prevents a proper judgment being rendered in which event a mistrial may be declared. A mistrial is a matter of law, while a new trial results from the exercise of discretion; a mistrial is a nugatory trial, while a new trial recognizes a completed trial which for sufficient reasons has been set aside so that the issues may be tried or litigated de novo.”

In addition, the commonly accepted concept of the mechanics of a mistrial is that when a mistrial is declared and the jury is discharged, the trial is terminated and is begun over again on another day. Its mechanical and its legal performance is impossible after verdict, judgment, and discharge of the jury. A motion for a mistrial is a procedural tool whetted and honed for use dining the trial to cut it short for legal reasons which preclude a verdict and entering a judgment that cannot possibly stand. It can therefore be utilized only as a pre-verdict motion and not a post-verdict or post-trial motion.

Section 68 — 1(5) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 68.1(5)), specifically states that any person who fails to seek a new trial in his post-trial motion waives the right to apply for a new trial, except in cases in which the jury has failed to reach a verdict. In discussing this statute in Freeman v. Chicago Transit Authority, 33 Ill.2d 103, 210 N.E.2d 191, at page 105, the supreme court discusses the statutory provision and states, “While the section thus confines a litigant, upon appeal, to those matters specifically raised in the trial court, it contains nothing that suggests an intention to interfere with the power of a trial court to act upon its own motion.” The record in this case, however, negates any thought that the trial court was acting on its own motion, but affirmatively shows that it was acting in specific response to a specific motion made by the plaintiff. That motion was a motion to declare a mistrial. There was no authority for the trial court to entertain or consider such a motion after verdict and judgment. Orderly practice procedures are prescribed for the proper and expeditious disposition of issues on review. Such procedures were not followed here. It was error on this record for the trial court to set aside the verdict of the jury and grant a new trial and in so doing, it followed no recognized or proper course of procedure. A mistrial after verdict is unauthorized. No motion for new trial was ever filed. It is crystal clear from this record that the trial judge did not grant a new trial on his own motion. Under such circumstances, this court must reverse and remand to the circuit court with directions to reinstate the verdict in favor of the plaintiff and against the defendant. Nolan v. Shaf Manufacturing Co., 128 Ill.App.2d 19, 261 N.E.2d 209.

Reversed and remanded with directions.

CRAVEN and SIMKINS, JJ., concur.


author: Mr. JUSTICE CRAVEN.

text:
    Harriette Miller, Plaintiff-Appellee, v. Simeon E. Miller, Defendant-Appellant.
    (No. 12225;
    Fourth District
    May 8, 1974.
    Edward L. Welch, of Edwardsville, for appellant.
    Albert H. Hoopes, of Bloomington, for appellee.
   Opinion by

Mr. JUSTICE CRAVEN.


text:
    Richard G. Jones, Plaintiff-Appellant, v. Jade G. Jones, Defendant-Appellee.
    (No. 12327;
    Fourth District
    May 8, 1974.
    Ora J. Baer, II, of Champaign, for appellant.
    Busch, Harrington & Porter, of Champaign, for appellee.
   Opinion by

Mr. JUSTICE CRAVEN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Oscar Marsh, Defendant-Appellant.
    (No. 12346;
    Fourth District
    May 8, 1974.

      John F. McNichols, Deputy Defender, of Springfield, for appellant.
    Robert L. Welch, State’s Attorney, of Virginia, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant appeals the denial after a hearing of his petition for post-conviction relief. Two issues are presented by this appeal. The first is whether or not the plea of guilty upon which the original conviction was based was involuntary and not knowingly and intelligently made based upon the allegation that the trial court did not properly admonish the defendant concerning the maximum possible sentence for the offense of burglary. The second issue is that the sentence imposed, being a minimum of 4 and a maximum of 9 years, offends the constitutional requirement that all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. We affirm.

Initially, the defendant and another were charged with the offense of burglary. On July 22, 1970, the defendant as a result of negotiations entered a plea of guilty and was sentenced as indicated. In explaining the penalty for the offense of burglary, the court recited the language of the statute:

“ ‘a person convicted of burglary shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.’” (Ill. Rev. Stat. 1969, ch. 38, par. 19 — 1(b).)

The court elaborated on the sentencing provisions by stating:

“you will note that I read you the penalties, that it would be an indeterminate term in the penitentiary, with a minimum of not less than one year. That means that the court would fix both a minimum and a maximum penalty, and the court could sentence you to the penitentiary for an indeterminate number of years not less than one, but any other number of years as a minimum and also a maximum period of time to the penitentiary.”

Upon the issue of sufficiency of that admonition we believe the case of People v. Gaines, 48 Ill.2d 191, 268 N.E.2d 426, to be dispositive. In Gaines, the defendant was admonished that the court “could sentence you to an indeterminate term in the Illinois State Penitentiary for any number of years, and the court can fix the minimum and maximum terms of such sentence.” The supreme court in considering the sufficiency of the admonition upon post-conviction review held:

“The defendant complains that this admonition was not sufficient to apprise him of the possible sentence he could receive, and as a consequence his plea of guilty was invalid as it cannot be said it was an intelligently offered plea. To support his contention the defendant cites People v. Terry, 44 Ill.2d 38, 39, 253 N.E.2d 383, 384, where the admonition was judged to have been insufficient. There the trial court advised the defendant only that ‘the punishment for burglary is an indeterminate sentence in the penitentiary.’ We consider the circumstances here more closely resemble the admonition given in People v. Scott, 43 Ill.2d 135, 142, 251 N.E.2d 190, 194. There we held that the defendant was sufficiently informed of the consequences of his pleading guilty when he was advised that he ‘could be sentenced to the penitentiary for any number of years not less than one year.’ Here, the defendant, represented by counsel, was admonished that upon his plea of guilty to armed robbery he could be sentenced to an indeterminate term in the penitentiary for any number of years, and that the court could fix the minimum and maximum terms of such sentence. After being informed of his rights to trial and these consequences of pleading guilty, the defendant persisted in his plea of guilty. The admomtion, we believe, under all the circumstances, was sufficient.” (48 Ill.2d at 193.)

This case has some of the aspects of People v. Terry, 44 Ill.2d 38, 253 N.E.2d 383, relied upon by the defendant and followed by this court in People v. Medley, 122 Ill.App.2d 279, 258 N.E.2d 392. However, in this case the court did describe the sentence with more particularity and we note that the admonition of the court followed a revelation to the court, as a result of the negotiated plea, that the recommended sentence would be not less than 4 nor more than 9 years and the defendant was interrogated as to his understanding of that recommended penalty. When taken in conjunction with the admonition, we view the record to be sufficient.

We find no constitutional infirmities with the sentence cognizable in a post-conviction proceeding. (See People v. Null, 13 Ill.App.3d 60, 299 N.E.2d 792.) We note however that the offense being prosecuted— burglary — is, under .the Unified Code of Corrections, a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 19 — 1.) A Class 2 felony upon a sentence of imprisonment is subject to a minimum of 1 year and a maximum of 20 years and is subject to the now statutory requirement that the minimum imposed cannot be greater than one-third of the maximum. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b) (3).) This court has previously cited with approval the recommendations of the American Bar Association that encompasses the rule now statutorily found in this jurisdiction. While the Code of Corrections did not become operative until January 1, 1973, and this case does not pend upon direct appeal, for purposes of application of the Code of Corrections, parole eligibility for this defendant is to be measured under the Code if such provisions accelerate parole eligibility. See People ex rel. Weaver v. Longo, 57 Ill.2d 67, 309 N.E.2d 581.

For the reasons stated, the judgment of the circuit court of Cass County is affirmed.

Judgment affirmed.

SIMKINS, P. J., and KASSERMAN, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stephen L. Burch, Defendant-Appellant.
    (No. 12084;
    Fourth District
    May 8, 1974.

      Stephen Davis, of Charleston, for appellant.
    Lawrence Eaton, State’s Attorney, of Monticello, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his convictions for speeding and reckless driving. Fines of $10 and $50 respectively were assessed after a bench trial. It is urged on review that the complaints for speeding and reckless driving were deficient, that defendant was not proven guilty beyond a reasonable doubt, and that it was error to fine defendant for two separate violations arising from the same conduct.

The record on appeal consists of an agreed statement of facts stipulated by the parties pursuant to Supreme Court Rule 323(b). The State’s case was comprised solely of testimony from Gary Schumard, a police officer of Bement, Illinois. Officer Schumard stated that at approximately 5:45 P.M. on August 6, 1972, he was operating a radar apparatus at the intersection of Petit and Macon Streets in Bement. This equipment had been tested and verified for accuracy by Officer Schumard utilizing an electronic device.

The officer first observed defendant’s vehicle as it was proceeding northbound on Macon Avenue behind three other autos. The three lead vehicles were all clocked at 33 miles per hour in a 35-mile-per-hour zone as they passed his location. After the last of these three cars had exited the radar beam, defendant was clocked at 45 miles an hour. At this point defendant allegedly accelerated and passed the three vehicles in front of him. Schumard stated that approximately three small children were standing on the west side of the road as defendant was passing and that an oncoming southbound auto appeared to pull off the road into a gas station lot in an attempt to avoid a collision with defendant’s vehicle.

Defendant testified in his own behalf and admitted that he did not remember his exact speed; however, he denied passing any automobiles in Bement and further stated that he did not observe any children or oncoming cars.

From the above facts the trial judge found defendant guilty of speeding and reckless driving.

The first point to be considered is defendant’s contention that the complaint for speeding was insufficient as a matter of law because of a latent ambiguity on the face of this citation. The complaint stated that the offense occurred at Macon Street and Highway 105 in Bement, Illinois, although the record here showed that Macon Street and Highway 105 are the same thoroughfare. It is appellant’s position that the foregoing was ambiguous and the complaint rendered deficient.

Defendant’s contention appears to be that a citation for a traffic violation occurring at an intersection can only be valid if tire complaint cites the names of both intersecting streets. The appellant has cited no authority for this proposition and this court is aware of none. If any confusion had actually accrued as the result of the description appearing in the complaint, the defect could easily have been cured by a bill of particulars. (People v. Blanchett (1965), 33 Ill.2d 527, 212 N.E.2d 97; People v. Reed (1965), 33 Ill.2d 535, 213 N.E.2d 278 and People v. Aud (1972), 52 Ill.2d 368, 288 N.E.2d 453.) The citations informed defendant that on September 6, 1972, at approximately 5:45 P.M. he was caught by a radar apparatus at a speed of 45 miles per hour in a 35-mile-an-hour zone in Bement, Illinois. The complaint was sufficient on its face, and a bill of particulars as to the precise location in Bement, Illinois, would have had only supplemental value. People v. Patrick (1967), 38 Ill.2d 255, 260, 230 N.E.2d 843.

Defendant urges that the citation charging reckless driving was insufficient on its face. By citing People v. Green (1938), 368 Ill. 242, 13 N.E.2d 278, and People v. Griffin (1967), 36 Ill.2d 430, 223 N.E.2d 158, it is argued that the specific acts of reckless conduct must be delineated in the complaint because the statute defining reckless driving (Ill. Rev. Stat. 1971, ch. 9572, par. 11 — 503) is so general in its terms that some act showing a violation of that statute must be incorporated in the citation: “Where the statute does not specifically define the crime, or does so only in general terms, some act showing an alleged violation of the statute must be averred.” (52 Ill.2d at 370.) This caveat was applied by Justice Schaefer in the Griffin opinion: “Unless a defendant is advised of the particular acts relied upon to sustain a charge of reckless driving, he is not advised of the nature and elements’ of the offense, and he is not afforded the full protection against double jeopardy contemplated by the constitution.” 36 Ill.2d at 433.

The complaint here consists of the standardized traffic citation used throughout the State of Illinois pursuant to Illinois Revised Statutes 1971, chapter 38, paragraph 111 — 3(b) and Supreme Court Rule 552. The arresting officer indicated, by filling in the appropriate blanks and spaces appearing on the citation, that the defendant had passed three cars in a reckless manner while on a residential two-lane highway with oncoming traffic present. Unlike Giiffin, the complaint here is not phrased in the language of the statute, but specifically denominates the reckless conduct alleged to have been performed by the defendant. Justice Schaefer in Griffin specifically held that a complaint for reckless driving which did not designate the precise reckless conduct involved was deficient because it would offer no protection against double jeopardy. Since the time, location and specific reckless conduct were included in the citation here, the double jeopardy problem in Griffin is not present. The complaint charging defendant with reckless driving is sufficient as a matter of law.

The next point to be considered is whether the defendant was proven guilty beyond a reasonable doubt of either offense. The only evidence introduced by the State to sustain the charge of speeding was the testimony of Officer Schumard as to the readings on his radar apparatus. The law does not require that a police officer be well versed in the scientific principles involved in the operation of a radar instrument. (People v. Abdallah (1967), 82 Ill.App.2d 312, 226 N.E.2d 408.) However, sufficient foundation must appear in the record to establish the accuracy of the radar equipment used. (People v. Stankovich (1970), 119 Ill.App. 2d 187, 255 N.E.2d 461.) The accuracy of a particular radar unit can be established by showing that the officer tested the device in accordance with accepted procedures. People v. Barbie (1969), 105 Ill.App.2d 360, 244 N.E.2d 626; People v. Stankovich; People v. Abdallah.

Neither will the reviewing courts in Illinois reverse a judgment of conviction on the ground that the evidence failed to sustain the judgment unless there is a reasonable and well founded doubt as to the guilt of the accused and the judgment is palpably contrary to the weight of the evidence. (People v. Stankovich.) The record here indicates that the arresting officer tested his radar apparatus before and after its use in apprehending the defendant by utilizing an electronic plug-in device. We are of the opinion that this was sufficient proof of the accuracy of the radar unit and of its proper operation for the trial court to have found the defendant guilty of speeding upon the reading taken from that unit.

The appellant also asserts that he was not proven guilty of reckless driving beyond a reasonable doubt. The offense of reckless driving is defined in Illinois Revised Statutes 1971, chapter 95%, paragraph 11— 503:

“Any person who drives any vehicle with a willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”

The specific acts constituting the reckless driving here are described in the complaint. The traffic citation stated that the defendant passed three vehicles in a reckless manner on Macon Street in Bement, Illinois, said conduct occurring with oncoming traffic present. The testimony of Officer Schumard appearing in the record substantiates every allegation in the complaint, and it was for the trier of fact to determine whether the allegations and the evidence constituted wilful and wanton misconduct on the part of defendant. (People v. Chambers (1972), 8 Ill.App. 3d 430, 289 N.E.2d 476.) Neither can it be said that the allegations of the complaint and the testimony in support thereof are insufficient as a matter of law to charge wilful and wanton misconduct in defendant’s operation of his vehicle.

It is further alleged that the trial court violated defendant’s rights against double jeopardy by finding him guilty of both speeding and reckless driving. The actual thrust of this argument can best be characterized as an attack on the inequitable practice of sentencing a defendant for two offenses, although legally independent, which arises from the same conduct. When two offenses are not “independently motivated or otherwise separable”, the courts of this State have upheld the sentence only for the greater offense. (People v. Stewart (1970), 45 Ill.2d 310, 259 N.E.2d 24; People v. Whittington (1970), 46 Ill.2d 405, 265 N.E.2d 679; People v. Lerch (1972), 52 Ill.2d 78, 284 N.E.2d 293 and People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601.) The speeding citation here was issued as a result of defendant’s being caught in excess of a posted speed limit by a radar apparatus. The record demonstrates that this measurement occurred before defendant’s alleged reckless conduct in passing the automobiles. The citation for reckless driving does not mention the speed of defendant in describing the alleged reckless conduct and there is nothing in the record to negate the lower court’s findings that two separate and distinct offenses had been committed by the defendant. Indeed, defendant cites authority and argues that speed alone does not establish reckless driving.

For the reasons stated, the judgments entered on defendant’s convictions of speeding and reckless driving are affirmed.

Affirmed.

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


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff, v. Marvin Manley, Defendant—(William V. Hopf, State’s Attorney, Contemnor-Appellant.)
    (No. 72-266;
    Second District
    May 15, 1974.

      William V. Hopf, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for appellant.
    Ronald Civinelli, of Addison, and Daniels, Hancock & Daniels, of Elmhurst, for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The State’s Attorney of Du Page County was adjudged in contempt of court upon his failure to comply with certain portions of the trial court’s order for pretrial discovery in a felony case. (Ill. Rev. Stat. 1971, ch. 110A, par. 412.) He appeals, claiming that the discovery order underlying the contempt is invalid. See People v. Smith (1972), 5 Ill.App.3d 429, 430.

The State’s Attorney contends that the following portions of the pretrial discovery order are invalid:

“4. The State shall immediately cause to be reduced to memoranda any substantially verbatim reports of oral statements of persons they intend to call as witnesses that have not been so reduced to memoranda and of which the State has knowledge and these memoranda are included in paragraph No. 1 of this Amended Order.
5. The State shall immediately cause to be reduced to memoranda any reports or summaries of oral statements of persons they intend to call as witnesses that have not been so reduced to memoranda and of which the State has knowledge and these memoranda are included in paragraphs Nos. 1, 2, and 3 of this Amended Order.
6. The word witnesses’ * * * means all persons who the State, at the time of submitting answers in compliance of this order, intends to call as a witness, whether in their case-in-chief or at any other stage of the trial of the case.
7. The State shall disclose and deliver, to defense counsel within fourteen days, in written form, any written statements, any recorded statement and tire substance of any oral statement in its possession or control made by the defendant, whether or not reduced to writing or memoranda and regardless of to whom said statements were made. The State shall further disclose and deliver to defense counsel within fourteen days, in written form, a list of all witnesses in its possession or control to the making and acknowledging of such statements as referred to above in this paragraph.
# # #
16. That the defendant’s motion for the Court to examine the entire State file ‘in-camera’ to determine if the State has complied with the Court’s discovery order to disclose and direct any matter or information within it’s possession or control which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefore, is hereby granted. However, the Court specifically reserves it’s ruling as to when the State’s file is to be examined ‘in-camera’.”

Paragraphs 4 and 5 of the court’s order, in substance, require that the State reduce to memoranda relevant non-verbatim as well as relevant verbatim oral statements of witnesses the State intends to call. If the stater ments are verbatim, the State is ordered to deliver them to the defense; if non-verbatim, the State must deliver those which it claims to be non-verbatim to the court for an “in-camera” inspection to verify its claim.

The State’s Attorney first argues that Supreme Court Rule 412(a) (i) neither requires that he reduce oral statements or interviews of witnesses to writing nor that memorandum or notes be prepared to preserve the statements or interviews.

He contends that the rules have been complied with since defendant has been provided with a list of witnesses together with any and all relevant written statements, recorded statements or memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements. He further notes that if the defendant deems it necessary he may inquire of each of these witnesses as to any oral statements they may have made to anyone from which he may prepare his own written memoranda. He concludes that the Supreme Court did not intend to require in the new discovery rules that which was not required under the prior rules.

The State argues that it is not required to provide a reporter at grand jury proceedings (e.g., People v. Aughinbaugh (1987), 36 Ill.2d 320, 324-325. See also People v. Colletti (1968), 101 Ill.App.2d 51, 58; People v. Lentz (1972), 8 Ill.App.3d 41, 43-44); and police officers have no duty to reduce all investigative findings to writing. (People v. Patterson (1971), 2 Ill.App.3d 902, 274 N.E.2d 487, 472, Supplemental Opinion, 2 Ill.App.3d 902, 276 N.E.2d 354. By analogy, it is concluded that the State is under no duty to record or otherwise reduce to writing the substance of an oral statement of a witness or the substance of an interview with a witness that he intends to call at trial.

From the record it appears that the State’s Attorney advised the trial court that it had an oral statement, an admission by the defendant not made to a police officer; that it intended to use the statement at trial; and that it had no intention of disclosing it to the defense. The record also reveals that the Assistant State’s Attorney stated in oral argument, “in criminal law there is absolutely no justice served by getting everything out in the open”. Further, the trial judge specifically noted in his memorandum of decision that the State had advised him in oral argument that it was a practice of the State’s Attorney’s office not to reduce substantially verbatim reports of oral statements to writing in order to surprise the defense at trial.

None of the Supreme Court Rules on discovery in felony cases (Ill. Rev. Stat. 1971, ch. 110A, pars. 411-415) specifically state that oral statements in the prosecutor’s (or defendant’s) possession or control must be reduced to writing. (See, e.g., Supreme Court Rule 413). Whether this requirement may be found by any language in the Rule requires an analysis of the words used and the purposes sought to be accomplished.

Under paragraph 412(f) of the Rules, the prosecutor has a duty to maintain a flow of information between its office and investigating personnel to insure possession and control of all relevant information. Defendant Manley argues that this duty would be nullified if the State is not required to reduce to writing information it has or is entitled to secure.

However, we are not persuaded that by the language used it was intended that all relevant information must be reduced to writing. The formulation of the Rule “means especially that the State should not discourage the flow of information to it from investigative personnel in order to avoid having to make disclosure.” S.H.A. ch. 110A, par. 412(f), Committee Comments.

The court’s authority to insure a fair trial by preventing avoidance of discovery is implemented by the provisions of paragraph 412(h) which authorizes it to order discovery in appropriate cases not totally covered by Rule provisions 412(a)-(g). (S.H.A. ch. 110A, par. 412(h), Committee Comments.) This discretionary provision was intended to have a small scope (see 1971 U. Ill. L.F. 557, pages 576-577, and 581). However, its implementation seems particularly appropriate in the circumstances of this case.

Here the information ordered to be disclosed is an unrecorded statement of the defendant, specifically requested by him, and which, but for the practice of not reducing the statement to writing, would have been available for discovery pursuant to the express provisions of the Rules. (See People v. Bassett (1974), 56 Ill.2d 285, 288-292.) Therefore, the fact that the statement in question was not given to a police officer does not absolve the State from its duty to disclose material subject to the jurisdiction of the court under Rule 412(g). See S.H.A. ch. 110A, par. 412(g), Committee Comments.

In our view, neither the defense nor the prosecution should be allowed to avoid discovery rules by a studied practice of failing to reduce otherwise discoverable information to writing. When the trial court determines within its discretion that the reason for the failure to reduce such a statement to writing is to avoid discovery, it may properly order that the statement be reduced to writing. However, in absence of the known presence of discoverable statements, neither the State nor the defense should bear the unreasonable burden of reducing all of its investigative information to writing. The application of the discovery rules as a whole and the solutions available, including the preclusion of evidence wrongfuly withheld, will sufficiently insure a fair trial.

The order below is therefore proper in its requirement that tire specific known statement of an admission by defendant be reduced to memorandum; but the blanket order to reduce to memorandum any reports or summaries of oral statements of persons intended to be called as witnesses is overbroad and invalid.

The State contends that paragraph 6 of the court’s order is also invalid because it requires that rebuttal witnesses be disclosed. It argues that Supreme Court Rule 412(a) (i) enlarges the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 9(a), (c)) (which provides the State must produce a list of intended witnesses) only by the additional requirement of disclosing the prior statements of the witnesses. See People v. Moses (1957), 11 Ill.2d 84, 88-89; S.H.A. ch. 110A, par. 412 (a) (i), Committee Comments.

Previously the criminal code provision did not apply to rebuttal witnesses. (People v. Holiday (1970), 47 Ill.2d 300, 304.) The Committee Comments to Rule 412(a) (i) conclude: “Nothing herein changes the types of material that are to be provided; only the time of their disclosure is changed.” Therefore, the State concludes, the Rule was not intended to include rebuttal witnesses within its scope. We agree, as a general proposition. People v. Porter (1973), 13 Ill.App.3d 893, 899; People v. Howze (1972), 7 Ill.App.3d 60, 68.

However, the requirement that a list of intended witnesses must be furnished applies in its terms to all witnesses without reference to the time a party intends to call them whether in chief or in rebuttal. It is obvious, however, as a practical matter, that the relevancy of the testimony of the rebuttal witness and of his statement may not be known until the State is informed of the direction of defendant’s case after response by the defendant to the State’s discovery request. Nonetheless, once the intent is formed to call a witness or to utilize his statement, the identity of the relevant witness and his statement should fall within the prosecutor’s continuing obligation of disclosure under Supreme Court Rule 415(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 415(b)). If the intention to call the witness is formed at trial rather than before trial, the court should exercise its discretion to extend to the defense every reasonable safeguard to preclude surprise in the conduct of the trial. See People v. Porter, 13 Ill.App.3d 893, 899.

Here, the State’s Attorney admittedly was aware before trial of an alleged admission by the defendant. It would seem obvious that he had formed the intent to call the witness at the time it responded to the discovery motion. But in any event, if the State does not form the intent until after the defendant has responded to the State’s discovery motion, it should then be obliged to disclose. Disclosure may not be avoided merely by labeling a witness a rebuttal witness, and the court’s order properly included rebuttal witnesses once they are intended to be called.

The State also argues that paragraph 16 is invalid. Ry that provision the court granted defendant’s motion to examine the State’s entire file “in-camera” to determine whether compliance had been made with the order to disclose any matter or information within the State’s possession or control which tends to negate the guilt or to reduce the punishment of defendant.

Supreme Court Rule 412(a) (i) specifies that memoranda summarizing oral statements be examined by the court “in-camera” and if found to be substantially verbatim reports of oral statements then they shaH be disclosed to the defense. The State contends that an “in-camera” inspection to determine generally whether the State’s file contains exculpatory material is not authorized by the rule except upon a proper showing of good cause and materiality to the preparation of the defense. We agree.

The State is required to furnish the memoranda of the oral statement to be reduced to writing in accordance with this opinion directly to defense counsel if it is substantially verbatim. If, on the other hand, the State concludes that the memoranda is not substantially verbatim, then on written motion of defense counsel the statements shall be examined by the court in camera as provided in Supreme Court Rule 412 (a)(i).

Beyond this requirement, however, the provisions of paragraph 16 which grant defendant’s motion for an in camera inspection by the court of the entire State file are invalid since no showing has been made that material evidence exists which the State has withheld. See People v. Smith, 5 Ill.App.3d 429, 431; People v. Brown (1971), 131 Ill.App.2d 669, 677; People v. Frazier (1971), 2 Ill.App.3d 639, 642.

The refusal of the State’s Attorney to obey the trial court’s discovery order, including that portion which we have held is properly within the court’s discretion, appears to have been a good faith effort to determine the scope of permissible pre-trial discovery. Accordingly the order is affirmed in part and reversed in part and the cause remanded with directions to vacate the contempt judgment and the fine imposed upon compliance with the discovery herein ordered. See People v. Endress (1969), 106 Ill.App.2d 217, 224.

Judgment affirmed in part and reversed in part and cause remanded with directions.

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

       Supreme Court Rule 412 as here applicable provides:
      “Disclosure to Accused
      (a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
      (i) the names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements. Upon written motion of defense counsel memoranda reporting or summarizing oral statements shall be examined by the cpurt in camera and if found to be substantially verbatim reports of oral statements shall be disclosed to defense counsel;
      (ii) any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements;
      # # e
      (f) The State should ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged.
      (g) Upon defense counsel’s request and designation of material or information which would be discoverable if in the possession or control of the State and which is in the possession or control of other governmental personnel, the State shall use diligent good faith efforts to cause such material to be made available to defense counsel; and if the State’s efforts are unsuccesful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel.
      (h) Discretionary Disclosures. Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by this rule.”

       The referenced paragraphs provided:
      "1. The State shall disclose and deliver to the defense counsel within fourteen days, in written form, the names and last known addresses in its possession or control of all persons whom the State intends to call as witnesses, together with copies of their written statements, their recorded statements and memoranda containing substantially verbatim reports of their oral statements.
      2. The State shall disclose and deliver to the defense counsel within fourteen days, in written form, a list of memoranda containing reports or summaries of oral statements in its possession or control of all persons the State intends to call as witnesses. The list must contain the name of each witness making such oral statement and must indicate that each such report or summary is regarded by the State to contain a ‘not substantially verbatim report’ of the oral statement.
      3. If the State has in its possession or control, any memoranda containing any reports of oral statements of persons they intend to call as witnesses and the State does not feel said memoranda contains any ‘substantially verbatim reports’ of said oral statements, the State shall submit said memoranda to the Court within fourteen days. If defense counsel then so requests, by written motion, the Court shall make an ‘in-camera’ examination of said memoranda. If the Court determines the memoranda does contain ‘substantially verbatim reports’ of an oral statement, the memoranda shall be immediately disclosed to the defense counsel by the Court with notice to the State but without any hearing.”

       The State’s Attorney 'has conceded his obligation to disclose evidence favorable to the accused, “no matter by what route the existence of the favorable evidence becomes known to him". (Ill. Rev. Stat. 1971, ch. 110A, par. 412(c)). See People v. Bracy (1973), 14 Ill.App.3d 495, 502.


author: Mr. JUSTICE GUILD.

text:
    Louis J. Lombardi et al., Plaintiffs-Appellants, v. Board of Education of School District 108 et al., Defendants-Appellees.
    (No. 73-75;
    Second District
    May 14, 1974.

      Louis J. Lombardi, pro se.

    Frank & Miller, of Chicago, for appellees.
   Opinion by

Mr. JUSTICE GUILD.