author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Talasch, Defendant-Appellant.
    (No. 58442;
    First District (4th Division)
    June 12, 1974.

      James J. Doherty, Public Defender, of Chicago (John T. Moran, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Jerald A. Kessler, and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Richard Talasch, was charged by an indictment with burglary and rape. Following a bench trial, he was found guilty of both offenses and sentenced to two concurrent terms of 20 to 40 years in the Illinois State Penitentiary. He appeals from this judgment, contending that he was deprived of adequate representation by competent counsel, that he was not proven guilty beyond a reasonable doubt, and that his sentences are excessive.

We direct our attention first to the contention that he was not proven guilty beyond a reasonable doubt. With respect to the charge of rape, the State was required to prove that the accused had sexual intercourse with the complainant by force and against her will. (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 1.) Susan Goodridge, the complainant, testified that on February 9, 1972, she was ill and stayed home from work. She lived with her parents in a two-story house at 642 South East Avenue in Oak Park. At about 12:30 in the afternoon, she was talking on the telephone to a friend, Mrs. Ryczek, when she heard a noise downstairs. She put down the phone and went downstairs to investigate, where she encountered the defendant. She had never seen him before. She asked who he was and what he wanted, and he stated that he had entered the house because someone was chasing him.

He grabbed her and forced her into the kitchen. She asked him how he had gotten into thé house and he showed her where he had broken the glass in the back door. In the kitchen she saw a second man who she identified in court as Thomas Haymes, the codefendant. She broke away from the defendant and ran into the dining room, but he followed her and knocked her down. He told Haymes to look around the first floor and forced her up the stairs.

Upstairs, he dragged her into her sister’s bedroom and told her to take off her clothes. When she refused, he pushed her down on the bed, pulled down her underpants, and lifted up her nightgown. He then took off his trousers and had sexual intercourse with her. During this time she was screaming and fighting him, and he stuffed part of a blanket into her mouth to quiet her.

When he finished having intercourse with her, he demanded money. She gave him a handful of change from her purse, but he wanted more. She said there was more in the kitchen, and he forced her downstairs. In the kitchen, he threw her down on the floor. She looked through the glass in the back door and saw a police officer. She screamed for help, and the officer ran in and chased the defendant out the front door.

A neighbor came over, and she told the neighbor that she had been raped. The police officer returned with the defendant in handcuffs, and she told the officer that the defendant had raped her. She was taken to West Suburban Hospital, where a smear test for the presence of sperm proved positive. She was also treated for a cut, and it was discovered that her leg was bruised. It was stipulated at trial that a police laboratory report revealed the presence of blood on the defendant’s jockey shorts and blood and sperm on the complainant’s nightgown.

Mrs. Rose Ryczek testified that about 12:30 P.M. on February 9, 1972, she was talking to Susan Goodridge on the telephone. While they were talking Susan said she heard something in the house downstairs. They had been talking on the phone about 15 minutes and she thought Susan was imagining things. Susan again said she thought she heard something. Susan told her to stay on the phone, and she was going to look. The next thing she heard her yelling and screaming ‘Who are you, who are you?” She then called the Oak Park Police.

Officer Joseph Ferraro testified that on February 9, 1972, at about 1:30 P.M., he went to 642 South East Avenue in response to a radio call concerning a burglary in progress. He found that the window in the back door had been broken. He looked in and saw the defendant holding Susan Goodridge around the neck. She screamed that the defendant had raped her, and he went in. As he did so, the defendant ran out the front door. He chased the defendant into a gangway and arrested him.

Patricia Talasch, the defendant’s wife, testified for the defense. She stated that in January, 1972, she was going through her husband’s pockets preparing his clothes for the laundry when she found a piece of paper with Susan Goodridge’s name, address and telephone number on it. She drove by Susan’s house once, but did not see anyone, and later she threw the paper away. In March of 1973, she showed a picture of the defendant to five or six persons in the Cherry Lounge and to the bartender at the Atlantic Lounge. One of the people in the Cherry Lounge was Ethel Buckley, who agreed to testify at the trial.

Ethel Buckley testified that she was in the Cherry Lounge in March of 1973 when Mrs. Talasch came in with the defendant’s picture. Mrs. Talasch was pregnant and was crying. She told her that her husband was involved with another woman and was facing a rape charge. She felt sony for Mrs. Talasch and agreed to testify at her husband’s trial.

She further testified that in late January, 1972, she was in the Atlantic Lounge with her boyfriend, whose name she recalled, with some hesitation, as John Brown. She saw the defendant in the company of a tall blond woman, who she identified at trial as Susan Goodridge. She stated that she was in the lounge for about an hour, during which she looked at Miss Goodridge for about 5 minutes while Miss Goodridge’s back was facing her. She had “three or four drinks during this period, and the lighting in the lounge was dim. She had never been to the Atlantic Lounge before the night that she saw the defendant and has not been there since, although it is just around the comer from the Cherry Lounge. She had never been to the Cherry Lounge before the day that she encountered Mrs. Talasch.

The defendant testified in his own behalf. He stated that he met Susan Goodridge for the first time at the Atlantic Lounge in late January, 1972. They talked for a while and he drove her home. She wrote down her name, address and telephone number on a piece of paper and gave it to him. Two days later he found the paper on his dresser and called her for a date the following week-end. On that occasion they returned to the Atlantic Lounge and also went to the Cherry Lounge. They drove to her house, where they kissed a few times in the car before he dropped her off.

On Febmary 9, 1972, he telephoned her around 8 A.M. and she told him to stop by that afternoon if he wasn’t doing anything. He stayed home from work that day to look for a better job. He went out job hunting with his friend, Thomas Haymes. They went to several places, but around noon the defendant became discouraged when a former employer told him that he could not be rehired and decided not to look further. Since he was in the vicinity of Susan Goodridge’s house, he decided to go there.

When he arrived at the house, Susan came to the door in her nightgown and invited him in. After a discussion, Haymes decided to continue looking for a job and left. Susan took the defendant on a tour of the house, and while they were in one of the upstairs bedrooms they began kissing. They both undressed and had intercourse, after which he took a shower. They had a conversation in which he revealed that he was married, and Susan became very upset and began screaming and crying. They went back downstairs into the kitchen, and he put his arms around Susan’s neck to kiss her. At this time he saw Officer Ferraro through the back door. He became frightened because he thought the officer might be Susan’s boyfriend. When Susan screamed to the officer that he had raped her, he fled because he was on probation for armed robbery.

The defendant contends that the above testimony was not sufficient to prove him guilty of rape beyond a reasonable doubt. He argues that the uncorroborated testimony of the complainant did not establish that he used force in having intercourse with her and points out that the mere fact of intercourse between the complainant and himself does not, of itself, establish that a rape occurred. People v. Henderson (1970), 119 Ill.App.2d 403, 256 N.E.2d 84.

After hearing all of the evidence in the present case, the trial court made the following observation:

“Before prefacing my remarks I would say that in the first time in fifteen years since I have been in this building I have been embarrassed, embarrassed in our system of criminal justice. The defendant’s affirmative defense, if you want to call that an affirmative defense of consent not only fails to raise any reasonable doubt, but I was convinced that it was contrived, I was convinced it was perjured. It is thoroughly embarrassing for the administration of justice.”

After reviewing the record, it is our conclusion that the trial court’s remarks are justified.

At the outset, we disagree with the defendant’s characterization of the complainant’s testimony as “uncorroborated”. Her description of the incident was corroborated by Officer Ferraro, who stated that he observed the broken glass in the back door, by Mrs. Ryczek, who testified that the complainant told her of hearing a noise downstairs and that shortly after this she heard the complainant’s screams over the telephone and she called the police, and by the laboratory reports, which showed the presence of blood on the defendant’s underwear and blood and sperm on the complainant’s nightgown. Furthermore, the complainant’s testimony was positive and detailed, and that of the defense witnesses vague and contradictory.

We are aware of the maxim that a charge of rape is easy to make and difficult to disprove. We are also aware that reviewing courts are charged with a particular duty of care in examining the evidence in rape cases. The issue in the present case, however, is actually one involving the credibility of witnesses. The trial court found that the complainant was credible and the defense witnesses, including the defendant, incredible. After having reviewed the record carefully, we are convinced that the trial court’s findings have an ample basis and that the evidence of the defendant’s guilt is overhelming.

With respect to the burglary conviction, we find no merit to the defendant’s contentions that he was not proven guilty beyond a resonable doubt because there were no fingerprints on the back door or broken glass and because nothing was recovered from his person that would indicate that he stole anything. The absence of fingerprints is easily accounted for by the hypothesis that an object was used to break the glass. The crime is complete upon entry with the intent to steal (People v. Barge (1972), 7 Ill.App.3d 721, 288 N.E.2d 492), and the State was not required to show that the accused actually took anything.

We next consider whether the defendant was represetned .by competent counsel. In arguing that his counsel was incompetent, the de-r fendant objects primarily to the failure of his court-appointed attorney to make a pre-trial motion to suppress his statements to the police. The record reveals that the attorney representing co-defendant Haymes made such a motion, and the court denied it., Following this, Talasch’s attorney moved to sever the defendant’s trial from that of Haymes and was successful. When the State sought to introduce the statements into evidence during the trial, the defendant’s attorney objected, and the court sustained the objection. Thus, the statements were never admitted into evidence. Before a conclusion of inadequate representation can be reached, it must be shown both that the defendant’s counsel was in fact incompetent and that the incompetence resulted in a substantial prejudice to the defendant. (People v. Harper (1969), 43 Ill.2d 368, 253 N.E.2d 451.) Since the statements were never admitted into evidence, we do not see how the failure to make a pre-trial motion to suppress could have prejudiced the defendant. Furthermore, the defendant’s attorney stated on the record that he was not making a pre-trial motion because he wanted to “take a. particular tack.” This indicates that he was aware of his opportunity to make the motion, but chose not to do so as a matter of strategy. As the State correctly points out in its brief, a review of the competence of counsel does not extend to areas involving the exercise of judgment or trial tactics. People v. Martin (1970), 44 Ill.2d 489, 256 N.E.2d 337.

The defendant also contends that his attorney did not conduct an adequate pre-trial investigation of the case because he did not speak to Ethel Buckley until the morning of the trial, made no attempt to locate Pat Burnett, the former boyfriend of Miss Goodridge, and was unfamiliar with Officer Ferraro’s police report when he attempted to impeach the officer on cross-examination. After reviewing the record, we reject this contention. The testimony, of Ethel Buckley was uncomplicated and short and required no extensive preparation. She did not testify until the second day of trial, providing an ample opportunity to interview her prior to actually testifying. The failure to call Pat Burnett is, in our opinion, a matter of tactics and strategy. (See People v. Scott (1965), 63 Ill.App.2d 232, 211 N.E.2d 418.) Moreover, there, is no showing that his testimony would have been favorable to the defense or even material to the issues in the case. Nor do we find any merit in the argument that the attempt to impeach Officer Ferraro reflected a lack of preparation. The difficulties experienced by the defendant’s attorney in this area stemmed from the fundamental problem that the officers’ testimony was consistent with the substance of his report. Any ineffectiveness was due solely to the weakness of the defendant’s case.

In addition to the foregoing, the defendant objects to “serious procedural errors” on the part of his attorney. He states that his attorney made motions to dismiss and for a new trial only after being prompted by the court. The record indicates, however, that immediately after the State rested its case, there was a recess. Following this, the defendant’s attorney made a motion to dismiss off the record. When the trial resumed, the court reminded him to make his motion again for the record. With respect to the motion for a new trial, the court mentioned it immediately after its evaluation of the evidence, and thus there was no opportunity for the defendant’s attorney to make the motion prior to the court’s bringing it up.

The defendant further argues that his attorney should have objected to the hearsay testimony by the complainant that the defendant told her that he entered the house because he was being chased and that the defendant said, “Didn’t you hear the glass break?” when she asked how he got in. In our view these statements were not offered to establish the truth of the matter contained in them, but rather, to demonstrate the inconsistency between the complainant’s version of how the defendant entered the house and his statement that he was invited in. Hence they were not objectionable. Furthermore, there are strategic reasons for not raising every conceivable objection to evidence, and therefore counsel’s failure to object in the present case cannot be regarded as indicating a lack of competence.

Finally, the defendant argues that his counsel’s unfamiliarity with the theory of defense was demonstrated by his failure to make either an opening or a closing argument. It has been held that the waiver of an opening statement does not demonstrate incompetence. (People v. Georgev (1967), 38 Ill.2d 165, 230 N.E.2d 851.) While we agree that the waiver of a closing argument might be prejudicial in some instances, we do not believe that it was in the present case. This was a bench trial, and the court’s evaluation of the evidence indicated that it understood the evidence thoroughly and was aware of the theory of defense.

The affidavit filed by the defendant’s attorney indicates that 40 hours were spent in preparing the case. The record in its entirety establishes that the defendant’s attorney competently cross-examined the State’s witnesses and elicited effective testimony from the defense witnesses. He took all procedural steps necessary to assert the defendant’s rights at the trial and to preserve the record on appeal. In view of this, we believe that the defendant received adequate and competent representation.

Finally we consider whether the sentences are excessive. The defendant correctly points out that under People v. Chupich (1973), 53 Ill.2d 572, 295 N.E.2d 1, the sentences in the present case must be evaluated by the standards set forth in the new Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.). Burglary is a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 19 — 1.) The new code provides that for all Class 2 felonies the maximum sentence shall be 20 years and that the minimum sentence shall be no more than one-third of the maximum. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b)(3), par. 1005 — 8—1(c)(3).) Applying these standards to the present case, it is apparent that the defendant’s sentence on the burglary charge should be 6% to 20 years, rather than the 20 to 40 years that he received. The sentence in the burglary conviction is therefore reduced to 6% to 20 years in the penitentiary.

The sentence on the rape charge is within the limits imposed by the Code of Corrections. In light of the defendant’s prior criminal record and the nature and circumstances of the offense, we are not persuaded that this is an appropriate case for the exercise of this court’s authority to reduce the punishment imposed by the trial court. People v. Heard, 48 Ill.2d 356.

For the foregoing reasons, we affirm the sentence imposed upon the rape charge and affirm the sentence imposed upon the burglary charge as modified by this opinion.

Judgment affirmed as modified.

DIERINGER and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jim Pendleton, Defendant-Appellant.
    (No. 58329;
    First District (2nd Division)
    June 10, 1974.

      Paul Bradley, of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ebb Spriggs, Defendant-Appellant.
    (No. 58413;
    First District (2nd Division)
    June 11, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Ebb Spriggs, was indicted for murder, two counts of attempt murder and four counts of aggravated battery. After waiving his right to a jury trial, defendant was found guilty on all counts, and was sentenced to concurrent terms of 15 to 25 years for murder and 5 to 10 years on the other six counts. Defendant now appeals, contending that (1) the evidence showed he was acting in self-defense, or that, at most, the killing was voluntary manslaughter; and (2) the convictions for aggravated battery and attempt murder arose from the same conduct, and therefore, the aggravated battery convictions should be reversed.

On May 27, 1971, at approximately 8 P.M., defendant exited Orbit’s Food & Liquor Store located at 3958 W. Arthingtón Street, Chicago (on the northeast comer of the intersection of Arthingtón and Pulaski streets). A number of individuals were standing in front of the store. As defendant crossed Pulaski Street, one of tire men on the comer called to him. Defendant turned and started toward the group. The witnesses who testified at trial gave conflicting testimony of the events which then followed.

Betty Letois Anderson testified that she was standing with Freddie Sims near the door of the liquor store. She observed defendant arguing with Robert Bell. Defendant walked across the street to a filling station, paused near an automobile, then returned across the street to the group. Defendant told Freddie Sims, “I am going to get you,” and shot Sims. The witness stated that defendant had two hand guns and was approximately six steps from Sims when he fired. After Sims was shot, the witness observed defendant then shoot John Lee Grayson who had grabbed defendant in an attempt to disarm him. Gregory Williams then moved toward defendant and was also shot by him. Defendant looked at the victims lying on the ground and walked away. The witness further stated that the shootings occurred near the door of the liquor store, and that at no time did the victims enter the street.

John Lee Grayson testified that he observed defendant shoot Sims who was unarmed. Defendant was 4 to 5 feet from Sims. Grayson "rushed” defendant, and pushed him into the street in an attempt to disarm him. They wrestled, one pistol fell to the ground, and defendant then shot Grayson in the chest with his other gun. Defendant and Grayson were wrestling 3 to 4 feet from the curb.

Gregory Williams' testified that he was standing near the doorwáy of the liquor store with Sims and Grayson. He heard someone call to defendant, and he observed defendant cross the street and return to the group. He, too, observed defendant shoot Sims as Sinis was standing on the sidewalk near the curb. After the shooting began, he moved toward defendant and was shot in the stomach. The witness stated that prior to the shooting, no one had touched defendant, and there had been no “scuffle” with defendant.

Patrolman David King, the arresting officer, testified that he and his partner responded to a call regarding a shooting, and upon arriving at the scene, he observed three men lying on the ground. An individual on the scene gave the officers a description of defendant, and they commenced a search for him. They observed defendant enter a building approximately one block from the scene, apprehended him in the hallway and recovered two revolvers from his person. After being advised of his constitutional rights, defendant told the officers that the three men had “jumped” him, and that they were unarmed. Defendant stated that the men had thought he was a member of the “Vice Lords" street gang. Defendant told the officers “that is the only way to deal with them.” (This last statement was not part of the officer’s official report; apparently it appeared in the officer’s personal notes.) The only injury to defendant which the officer observed was a wrist injury.

Officer Lee Anderson, a homicide investigator, testified for the defense that on the night of the shooting he interviewed Betty Lewis at the hospital. At that time she told him that she had seen defendant and Grayson struggle, whereupon defendant shot Grayson. She stated that defendant then pulled a second gun and shot Sims and Williams. On cross-examination the officer testified that at the time of this interview, the girl was “highly emotional,” upset and crying.

Wilbert Page, the owner of a Clark gas station on the northwest comer of Arthington and Pulaski, also testified for the defense. He stated that he observed defendant being attacked by three men as he crossed to the west side of Pulaski. He stated that Grayson had grasped defendant from the rear, and Williams and Sims were on either side of him. They “tussled” in the street for approximately 30 seconds, he heard a shot and saw Williams cross the street toward the liquor store and disappear from his view. He heard another shot and observed Sims ran across the street and fall in the doorway of the liquor store. Grayson and defendant continued tussling in the street, he heard two more shots and saw Grayson ran across the street. The witness stated that the tussle occurred in the middle of the intersection of Pulaski and Arthington. He also stated that he had not told anyone what he had seen until defendant’s father spoke with him at the gas station prior to trial. On examination by the court, the witness stated that because of the jog Arthington takes to the north at Pulaski, he could not see the east door of the liquor store.

Defendant testified in his own behalf that as he left the liquor store and was crossing to the west side of Pulaski, Robert Bell, one of the men on the comer called to him. As he returned to the group standing near the curb in front of the liquor store, Bell asked him if he was a “Maniac Cobra,” defendant answered that he was not, but Sims interjected that he was and “jumped” him. Grayson grabbed defendant in a “bearhug,” pinning defendant’s arms to his body, Sims was on defendant’s right side holding his right wrist, and Williams was on defendant’s left side. Sims swung at defendant, “creasing” his forehead. Defendant struggled to free his arms and managed to draw the guns from his pants pockets. He shot Williams first with the gun in his right hand, then the gun discharged and injured defendant’s wrist. He pulled the trigger of the gun in his left hand and shot Sims. At this point Grayson had him around the neck and was choking him, and defendant shot Grayson. Grayson stepped back and then moved toward defendant, and defendant shot him again. Defendant stated on cross-examination that during the course of the “tussling” he had moved approximately to the middle of the north lane of Pulaski. Defendant denied his statement to the arresting officers that “that was the only way to deal with them.” Defendant admitted that prior to the shooting he had never had a conversation with the victims and had never had a fight with them or been threatened by them.

Over the prosecution’s objection, the trial court allowed into evidence a transcript of the preliminary hearing testimony of one Charles Coney, who could not be found at the time of trial. Coney had testified that at the time of the shooting he saw four persons tussling in the street. He then saw defendant pull a gun and shoot. Two of the men fell, and the other man ran and then fell. He stated that he did not see how the tussling began.

Defendant does not deny shooting the deceased, Freddie Sims, or the other men. Initially, defendant contends that the State failed to sustain its burden of proving beyond a reasonable doubt that he was not acting in self-defense when he shot Sims, Grayson, and Williams. Defendant’s theory of self-defense is based upon his own testimony, the testimony of Page and the transcript of Coney’s testimony at tire preliminary hearing that the three men attacked defendant prior to the shootings. We note that the testimony of defendant was somewhat inconsistent with that of Page as to where tire struggle commenced, and that Page’s testimony was somewhat inconsistent with that of Coney as to whether the victims fell when hit or ran from the street to the sidewalk in front of the liquor store.

There is no doubt that the evidence presented by the prosecution and the defense was conflicting, and at times confusing. However, the issue of self-defense is a question of fact. (People v. Jordan, 18 Ill. 2d 489, 165 N.E.2d 296.) It is the function of the trial court, sitting as the trier of fact, to resolve conflicts in the evidence and to determine the credibility of the witnesses. (People v. Hurst, 42 Ill.2d 217, 247 N.E.2d 614 modified on appeal 408 U.S. 935; People v. Pelegri, 39 Ill.2d 568, 237 N.E.2d 453.) We will not disturb the court’s findings unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. People v. Jordan, supra.

Defendant does not dispute that the victims were unarmed and had never threatened or injured him prior to this occurrence, and that he, armed with two revolvers, crossed the street to confront them. The testimony of the prosecution’s witnesses, if believed, provided ample evidence from which the trial court could properly find that defendant did not act in self-defense. The court found “that the testimony of Betty Lewis was credible; * * * that the testimony of Wilbert H. Page, Jr. under the circumstances was not sufficient in view of what he testified that he saw and his location and description of the area was not sufficient that was persuasive insofar as the issue before this court [sic] * * Although the record indicates that Betty Lewis’ testimony was inconsistent with her statement at the hospital and was somewhat inconsistent with Grayson’s testimony, we are not justified in disturbing the court’s determination of the credibility of the witnesses. We will not disturb the court’s finding that the evidence proved defendant guilty beyond a reasonable doubt of the offense of murder.

Defendant next contends that even if this court finds that he did not act in self-defense, we should reduce his murder conviction to voluntary manslaughter because he acted upon a belief that the use of deadly force was justified. Again, defendant bases his theory on the evidence indicating that he was attacked by the three victims. As with the issue of self-defense, the trier of fact apparently disbelieved this testimony. The evidence is undisputed that defendant was armed with two weapons as he approached the unarmed victims. The evidence presented by the prosecution, if believed, does not support defendant’s assertion that he acted under a reasonable apprehension justifying the use of deadly force, or even that he acted under a reasonable belief that a battery was being or going to be committed upon him. Therefore, the record does not justify substitution of our judgment for that of the trier of fact, and no basis exists upon which to reduce defendant’s murder conviction to voluntary manslaughter.

Finally defendant contends that his aggravated battery convictions arose from the same conduct as his attempt murder convictions and therefore, his aggravated battery convictions should be reversed. The indictment charged seven counts — one count charging the murder of Freddie Sims, one count for attempt murder and two counts for aggravated battery as to John Lee Grayson and one count for attempt murder and two counts for aggravated battery as to Gregory Williams. It is not disputed that the counts of attempt murder and aggravated battery of Grayson arose from a single act of defendant, and that likewise, the counts of attempt murder and aggravated battery of Williams arose from a single act of defendant. Our supreme court recently has held that “under such circumstances there can be but one conviction of crime.” (People v. Lilly, 56 Ill.2d 493, 495, 309 N.E.2d 1.) Therefore, we reverse the judgments of conviction for the four counts of aggravated battery.

Accordingly, the judgment of conviction for murder is affirmed. The judgments of conviction for attempt murder are affirmed. The judgments of conviction for aggravated battery are reversed.

Affirmed in part; reversed in part.

HAYES, P. J., and LEIGHTON, J., concur.

       Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1(a)(1).

       Ill. Rev. Stat. 1969, ch. 38, par. 8 — 4(a).

       Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(b)(1).

       Ill. Rev. Stat. 1969, ch, 38, par, 9 — 2(b).


author: Mr. PRESIDING JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Samuel J. Green et al., Defendants-Appellees.
    (Nos. 57410-1 cons.;
    First District (2nd Division)
    June 10, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
    No briefs for appellees.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

Two records have been filed in this court. General No. 57410 involves a complaint filed against the defendant, Samuel Green, charging him with the offense of gambling in that on 17 February 1971 he used or kept an instrument or apparatus for the purpose of recording and registering bet wagers in violation of section 28 — 1(a)(5) of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 28 — 1(a) (5).) General No. 57411 involves a complaint filed against the defendant, Samuel Green, charging him with a similar offense on 19 February 1971. The complaints against the other defendants, John E. Turner, Aaron Atwater, Charles Lewis, Jr., and Roosevelt Ashley, do not appear in either of the records.

The trial court sustained defendants’ pre-trial motion to suppress evidence seized incident to their arrests, holding that the arrests of the various defendants were illegal and that, therefore, the evidence seized incident thereto should be suppressed. The People appeal pursuant to Supreme Court Rule 604(a)(1). Ill. Rev. Stat. 1971, ch. 110A, par. 604 (a)(1).

No brief has been filed by the defendants. However, in accordance with the practice of the court, the appeal will be decided on its merits. People v. Caruso (1971), 2 Ill.App.3d 80, 276 N.E.2d 112.

The sole issue on appeal is whether the trial court wrongfully sustained the motion of defendants to suppress the said evidence.

At the hearing on defendants’ motion to suppress the evidence, Police Officer Radcliffe, assigned to the vice-control division, gambling section, of the Chicago Police Department, testified that, under an assumed name, he applied for and obtained a job with the Schultze and Burch Biscuit Company, 33 West 35th Street, Chicago, Illinois, to investigate gambling activities suspected of being conducted on the company’s premises. He worked there from about 2 February 1971 to about 25 February 1971. On 10 February 1971, Radcliffe was working on a conveyor belt. He observed defendant Samuel Green approach the conveyor belt. An employee who was working next to Radcliffe left the conveyor belt, walked over to Green, and Green opened a scratch sheet. They conversed and Radcliffe saw some United States currency passed to Green by the employee. He saw Green write something down on a slip of white paper and hand it to the employee. He heard Green state: “O.K., 5fh race.”

On 11 February 1971, Radcliffe had a conversation with another employee, who agreed to place a bet for Radcliffe. Radcliffe saw the man go into the locker room and walk up to Ashley, one of the defendants, and give Ashley a dollar Radcliffe had given him. The employee brought back a receipt. Radcliffe subsequently said that he had the conversation with the employee on 11 February 1971, but that the bet was placed on 16 February 1971. Radcliffe took the receipt which the employee gave to him and inventoried it. In Radcliffe’s opinion it showed a “One dollar bet for the daily double bet at Balmoral for the numbers 6 and 1”.

On 12 February 1971, at about 10:40 A.M., Radcliffe went to the locker room and observed Ashley seated on a bench with a pad, a pencil, and a scratch sheet in front of him. Employees were coming to Ashley and giving him money and receiving a receipt in return. An employee would come to Ashley, stand over the scratch sheets that he had, whisper something to him, and give him money; then Ashley would write something on the pad, tear off a carbon copy, and give it to the employee.

On 15 February 1971, Radcliffe asked Green to take a wager for him for a horse race. Radcliffe told Green he would like to place $2 on two separate daily doubles. Radcliffe placed $1 on the first race at the Fairgrounds for the fifth horse. He also placed $1 on the second race, No. 4 horse.

On 17 February 1971, at about 9:05 A.M., Radcliffe placed another wager with Green in the bake shop for the first race at Hialeah for the second horse, $1 to win. He received a receipt indicating that wager.

Radcliffe had a conversation with defendants Turner and Atwater on 17 February 1971 about playing the horses. At the end of the conversation, Turner pulled out an order pad from his locker and accepted a wager from Radcliffe on the daily double at Balmoral. Radcliffe then gave Turner a dollar and Turner gave Radcliffe a receipt for the daily double, which Radcliffe could not now find.

Radcliffe later observed Atwater standing near a door to the washroom with other employees, reading scratch sheets. Every so often they would give Atwater money, he would jot something down on a piece of paper and give it to them, and they would leave.

. On 19 February 1971, Radcliffe observed Roosevelt Ashley seated on a bench in the locker room with a scratch sheet and an order pad. Radcliffe told Ashley that, if Ashley would cash his paycheck, he would bet $5 on the fourth horse in the first race at Balmoral. Ashley gave Radcliffe the money from his paycheck less the $5, plus a receipt, which Radcliffe had with him at the hearing.

The three race horse betting receipts were introduced in evidence.

At about 11 A.M. on 19 February 1971, Radcliffe and his partners arrested four of the five defendants on the premises of Schultze and Burch Biscuit Company, and seized the evidence sought to be suppressed. The fifth defendant (Atwater) was arrested at his home.

The trial court refused to consider the evidence sought to be suppressed on the ground that it had been illegally seized because the State did not, at the hearing, produce the arrest warrants to show a legal arrest.

The State made an offer of proof that arrest warrants had been obtained from Judge Maher on 18 February 1971, after Radcliffe had filed the complaints; and that the arrest warrants had been served on the defendants, but had then been misplaced, and could not be produced at the hearing.

The trial court ruled that Radcliffe needed arrest warrants in order legally to arrest defendants; that the State was estopped from claiming the warrants existed when they could not be produced at the hearing; and that, since the arrests, viewed as warrantless, were illegal, the evidence seized incident to the arrests was illegally seized. The court stated that the testimony is replete with evidence that Radcliffe saw violations of law; and that he saw them on many occasions; but that it would be necessary for the police officers to have warrants in order legally to arrest the four defendants on the premises of Schultze and Burch Biscuit Company.

The court thereupon sustained defendants’ motion to suppress the evidence seized incident to the arrests.

On this appeal, the State has chosen not to contest the ruling of the trial court (with which, however, it expresses its disagreement) that the State, owing to its inability to produce the warrants at the hearing, was estopped to prove that the arrests had in fact been made under warrants properly issued and served. For the purposes of this appeal, therefore, the arrests must be deemed to have been warrantless arrests.

The State argues that the warrantless árrests in the case at bar were legal because Police Officer Radcliffe had observed each of the defendants accept, record, and remit receipts for, wagers placed with them by Radcliffe and other employees; that by reason thereof the defendants could be arrested without a warrant (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c)); and that the police officers could legally seize the evidence which was the subject matter of the motion to suppress.

In People v. Marino (1970), 44 Ill.2d 562, 256 N.E.2d 770, the court held that an arrest may be made by a police officer without a warrant when he has reasonable grounds for believing that the person to be arrested has committed or is in the process of committing a crime; that whether reasonable grounds exist depends upon the totality of the facts and circumstances of the arrest; that such determination must be made upon practical considerations of every-day life upon which reasonable ground presupposes more than mere suspicion on the part of the arresting officer, an arrest may be made on something less than evidence which would result in conviction; and that probable cause may be founded upon evidence not admissible at the trial of the charge in question. The courts have also held that an arrest without a warrant is lawful if a criminal offense has in fact been committed and the arresting officer had reasonable grounds for believing that the person to be arrested committed it. People v. Carlton (1965), 58 Ill.App.2d 163, 206 N.E.2d 824, cert. denied, 384 U.S. 910; People v. Adornetto (1972), 3 Ill.App.3d 647, 279 N.E.2d 421.

The trial court based its decision on the fact that the business premises of Schultze and Burch Biscuit Company, where four of the arrests were made, were of a private nature and, therefore, the police could not arrest defendants on the premises without arrest warrants and could not seize the evidence without a search warrant.

The colloquy indicates that the trial court relied on People v. Abrams (1971), 48 Ill.2d 446, 271 N.E.2d 37. In that case, two groups opposed to the war in Vietnam sponsored a “send-off” party to be held at the Abrams’ home in Chicago. Leaflets announcing the date, hour, place, admission charge, and purpose of the gathering had been placed at several locations in the neighborhood to serve the function of a general invitation to all interested persons. A police lieutenant gave one of the leaflets to two police officers and instructed them to attend the gathering to check on what was going on. The officers went to the home, entered, purchased two tickets of admission at a table set. up just inside the eutrance way, and made some observations, They did not identify themselves as police officers, nor were they asked to do so. They observed the sale of liquor, and cups containing a liquid smelling of alcohol in the hands of persons who appeared to be under age. The officers then left, returned to their police station, and reported their observations. A discussion followed as to the probable violation of law involved, but no attempt was made to procure either an arrest warrant or a search warrant. The two officers were then instructed to return to the home, which they did in the company of three more officers. They entered and reached the admission table, where they were asked if they were police officers. They then so identified themselves, whereupon they were refused admission. One officer observed a youth seated at the admission table holding in his hand a cup containing a liquid. At the officer’s request, the youth handed the cup to the officer who then stated that the liquid was an alcoholic beverage. The officer then announced to one of the defendants that a crime had just been committed in his presence, for which reason no search warrant was necessary. A minor scuffle ensued when the officers’ further entry was blocked. Thereupon the officers blocked the exits and certain defendants were arrested. Then the officers attempted to re-enter the home for the announced purpose of locating the youth who had held the cup, which the officer still had. The re-entry was blocked and other defendants were then arrested. Exactly when Abrams was arrested was not clear, but the arrest was made during that evening on a charge of selling liquor without a license. Prior to the trial of Abrams on that charge, he made a motion to suppress all testimonial and physical evidence involved in the entire affair. The motion was denied. On appeal, the Supreme Court held that the first entry by the two officers was lawful, that their observations during that entry were not improper, and that the testimonial evidence involved during that entry was not subject to suppression. The second entry, however, was unlawful. The officers sought to justify it, not on the ground that probable cause for arrest existed from their observations during their first and lawful entry, but solely on the ground that a liquor offense was then being committed in their presence in that the young boy at the admission table was holding a cup containing an alcoholic beverage. Their second and unlawful entry had preceded that observation, and a search could not be justified by showing that the search brought to light grounds for an arrest. Hence, the physical evidence and the testimonial evidence obtained through the unlawful second entry should have been suppressed.

The Abrams case would appear to be on point only if: (1) the' arrests of the four defendants were unlawful because made during an unlawful entry by the officers onto the private business premises of the Biscuit Company; and (2) for an offense observed by the officers pursuant to the unlawful entry. Neither essential element appears to exist. After some discussion of the impact of Officer Radcliffe’s assumed name on the lawfulness of his entry and presence as an employee on the premises of the Biscuit Company, the trial court concluded that Radcliffe, as an employee, was on the premises at the invitation of the owner and had the same right to be there as did defendants. In any event, it seems clear that none of the defendants would have any standing to question the lawfulness of Radcliffe’s entry and presence on the premises, nor were they agents of the Biscuit Company for that purpose. Secondly, the offenses for which they were arrested were the offenses which Radcliffe had observed each defendant to have committed on occasions from 10 February 1971 up to and including the morning of 19 February 1971. For those observed offenses, Officer Radcliffe had probable cause to make the several warrantless arrests, and, since the arrests were lawful, the evidence seized incident thereto (which apparently consisted of gambling paraphernalia used in accepting bets on horse races) was lawfully seized and could be used to support the charges against defendants.

The trial court erred in sustaining the defendants’ motion to suppress.

The judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

STAMOS and DOWNING, JJ., concur.


author: Mr. JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Morgan, Defendant-Appellant.
    (No. 59477;
    First District (5th Division)
    June 7, 1974.

      Charlotte Adelman, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DRUCKER.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Weatherspoon, Defendant-Appellant.
    (No. 59343;
    First District (5th Division)
    June 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Daniel Miranda, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Barry Rand Elden, and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendant was indicted for the crimes of burglary and armed robbery. Tried by the court sitting without a jury, a directed finding of not guilty was entered on the armed robbery charge. He was, however, found guilty of burglary and sentenced to a term of from 3 to 8 years.

On appeal defendant contends that (1) the State’s proof was so unsatisfactory that it created a reasonable doubt as to his guilt; (2) it was error for the trial court not to strike testimony concerning unrelated criminal conduct; and (3) the minimum sentence exceeds that allowable under the Unified Code of Corrections.

On the morning of August 26, 1972, the apartment of Pauletta Kyle was burglarized. Four days later police officers investigating the burglary seized defendant at his girl friend’s apartment, and he was charged with the crime. Prior to trial the defense moved to quash the arrest. Following an evidentiary hearing, the motion was denied.

At trial Ms. Kyle testified for the State that on the morning in question she lived with her mother and son in a first-floor apartment located at 6827 South Dante in Chicago. At 4:50 A.M. her alarm rang, awakening her. She turned it off and fell back asleep. Approximately 25 minutes later something woke her again. She got out of bed and was walking out of her bedroom door when she bumped into someone. She said, “Mama,” and a man’s voice responded, “Be quiet and get back in bed, you won’t get hurt.” When she first bumped into the man, she did not get a look at him since he was shining a flashlight in her face. The apartment was in darkness. She got back into bed. Her mother, Hazel Jones, had gotten out of bed and had come into the hallway. The man told her to “get into bed with your daughter.” The bed stood near the bedroom door. The flashlight the man was carrying was still on; she could not tell if he had anything else in his hand. He went through her purse and took a knife out of it. She identified a knife that was found in the room where defendant was arrested as being the knife that the intruder had taken out of her purse. He ordered Mrs. Jones to get her purse which she said was in a back room. He accompanied her out of the bedroom, turned on the hall light and then attempted to cut the telephone cord with the knife. At this time he was about three feet from Ms. Kyle. He positioned himself so that he could see both Ms. Kyle in the bedroom and her mother in the dining room. He ordered Mrs. Jones to get both of her purses and then took them from her. He knelt beside the bed and went through the purses. Ms. Kyle could not see him while he was doing this. He then said, “[Y]ou should have some more money here in the house some place; where is it?” She began to cry. He leaned over her and said, “What’s wrong with you? I haven’t hurt you, I’m not going to hurt you, stop that crying.” The flashlight was still on. He then began searching through her closet which was located directly across the bed from her, approximately 12 to 15 feet away. When he finished looking in the closet, he walked around the foot of the bed and she could see his reflection in the mirror. He inquired about a watch that was lying on a chest to the right of the bed but decided not to take it when told that it belonged to her father, and that it was broken. He then walked around to the left side of the bed, sat on its edge and said to her mother, “Moms, you know we have to make a living the best way we can. There are a lot of ways people can get into your house. I don’t work in this area, but I might be back.” He asked if there was another way out of the apartment and was told that there was a back door. He walked out of the room, stood in the lighted hall and told them to give him 15 minutes before they got up. After he had gone, she called the police. In addition to the knife, her watch and approximately $70 to $100 was taken. She told police that the man was about 5 feet 8 inches, brown skinned, with a natural-style haircut that was not “real bushy.” He had no hair on his face, but he did have sideburns. He wore dark clothing. His general appearance was that of a “gorilla.” On August 30 she went to the police station where she was shown about 100 photographs. She picked out two photos depicting the man who had burglarized her apartment and identified defendant as the man seen in the pictures.

Hazel Jones was called as a State’s witness and testified that on tiie morning of August 26, at about 5:15, she was awakened by a noise. She called to her daughter; hearing no answer she got out of bed and started to. go down the hall. There she saw a man standing at her daughter’s bedroom door. He flashed a light in her face and ordered her to get into bed with her daughter. The man emptied the contents of her daughter’s purse on the floor and then asked Mrs. Jones to get her own purse. He followed her into the hall, told her to get both of her purses and then took them from her after she had picked them up in the dining room. He removed $144 in cash from the purses but did not take the savings bonds that they also contained. The hall light was on as was the light in the dining room. Her daughter began to cry; the intruder leaned over her and told her to stop. He was carrying a knife and a flashlight. Thereafter, he looked into the closet and searched a dresser and a chest of drawers that were near the bed. While he was rummaging through these items, he was kneeling on the floor “no more than a foot or two away.” He told them to remain in bed for 15 minutes while he made his escape. During the burglary her only view of defendant was a side view. She was not asked by the police to make a photographic identification of defendant.

It was stipulated that the testimony of Chicago Police Officer Roland Charles at the hearing on the motion to quash the arrest would stand at trial. Charles testified that he was assigned to investigate the burglary at Ms. Kyle’s apartment. He interviewed Ms. Kyle and Mrs. Jones on August 29 and the next day exhibited some photos for Ms. Kyle. She identified two pictures of defendant as being photographs of the burglar. He ascertained where defendant was living and proceeded to that address accompanied by two other police officers. He was shown to defendant’s room and placed him under arrest. On the dresser in the room where defendant was arrested was a knife with a black handle on which a tiger was etched. It matched the description Ms. Kyle had given him of the knife that the burglar had taken.

Defendant called no witnesses at trial and chose not to testify on his own behalf.

OPINION

Defendant first contends that the identification testimony adduced at trial was insufficient to establish his guilt beyond a reasonable doubt.

It is the function of the trier of fact to determine the credibility of witnesses, and its finding of guilty will be disturbed only where the evidence is so unsatisfactory as to leave a reasonable doubt as to a defendant’s guilt. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) Positive and credible identification by even one witness is sufficient to support a conviction. (People v. Davis, 19 Ill.App.3d 709, 312 N.E.2d 360.) In the case at bar both Ms. Kyle and her mother identified defendant as the intruder. The record reveals that they had many opportunities to see him at close distances under adequate lighting conditions. Throughout the burglary defendant had his flashlight turned on; through much of it the hall light was on as well. Most of defendant’s activities were centered in the confined area of Ms. Kyle’s bedroom. At one point he leaned over her, at another point he knelt within a foot or two of her mother. The fact that Ms. Kyle was able to give police a detailed description of defendant’s appearance and subsequently made a photographic identification of him further indicates that tire in court identification of defendant was not uncertain or doubtful. This identification testimony was corroborated by the fact that the knife which was taken from Ms. Kyle’s purse during the burglary was found by police in the room where defendant was apprehended. We therefore find that defendant was proven guilty beyond a reasonablé doubt.

It is next contended that the trial court erred in not striking certain testimony objected to by defendant. The basis of this contention is found in the following colloquy between the prosecutor and Ms. Kyle:

“Q. What did he say at that time as he was sitting on the foot of the bed?
A. He said, ‘Well, Moms, there is a lot of ways — ’
Mr. Mandeville [defense counsel]: I object to that.
The Court: On what grounds?
Mr. Mandeville: How is that relevant, what he said?
The Court: Overruled.
Mr. Norris: Q. Go ahead, Miss Kyle, indicate what he said at that time.
A. He said, ‘Moms, you know we have to make a living the best way we can. There are a lot of ways people can get in your house/ He said, ‘I don’t work in this area but I might be back/
Mr. Mandeville: I object and move that it be stricken.
The Court: Overruled.”

As the record plainly indicates, defendant specified relevancy as his grounds for objection at trial. On appeal he asserts that this testimony is objectionable because it relates to prior unrelated criminal acts. It is well established that “[a]n objection to evidence based on a specified ground * * * waives all grounds not specified.” (People v. Killebrew, 55 Ill.2d 337, 341-342, 303 N.E.2d 377.) We therefore find that defendant is foreclosed from raising this issue before us. Moreover, defendant concedes that the statement in question does not directly refer to his involvement in other crimes. It would thus be mere speculation for us to hold that the trier of fact read into it the innuendos asserted by defendant. Cf. People v. Appleton, 1 Ill.App.3d 9, 272 N.E.2d 397.

The trial court imposed a sentence on the burglary conviction of from 3 to 8 years. The State concedes that the minimum term imposed exceeds that allowable under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3)) and acknowledges that it should be reduced to 2 years and 8 months.

For the foregoing reasons defendant’s conviction is affirmed and his minimum sentence reduced to 2 years and 8 months.

Affirmed as modified.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Birge, Jr., Defendant-Appellant.
    (No. 59209;
    First District (5th Division)
    June 7, 1974.

      Paul Bradley and Howard B. Augustus, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Lorence H. Slutzky, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas A. Neumann, Defendant-Appellant.
    (No. 59157;
    First District (5th Division)
    February 22, 1974.

      Opinion on rehearing filed June 7, 1974.

    Thomas J. Boodell, Jr., and Lawrence M. Gavin, both of Boodell, Sears, Sugrue, Giambalvo & Crowley, of Chicago, for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court on rehearing:

After a bench trial, the defendant was found guilty of performing an act of public indecency in violation of section 11 — 9 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 9) and fined $50.

On appeal, the defendant alleges (1) that the complaint was legally insufficient; (2) that he was not proven guilty beyond a reasonable doubt; and (3) that section 11 — 9(a)(3) of the Criminal Code does not prohibit the conduct with which he was charged.

In his challenge to the legal sufficiency of the complaint, defendant argues that it failed (1) to allege a crime; and (2) to inform him of the nature and cause of the offense brought against him. He contends that, although the complaint purports to charge the offense of public indecency under section 11 — 9(a)(3) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 9(a)(3)), it was insufficient because it failed to include material elements of the offense.

The complaint alleged:

8 s Thomas A. Neumann has, on or about 3 Nov. 71 at 151 North Michigan Ave. committed the offense of PUBLIC INDECENCY in that he being 17 yrs. old; to wit; 38 yrs. of age; did perform an act of public indecency; masturbation; in a public place; namely the men’s washroom located in the I. C. Train Station; in an attempt to arouse the sexual desires of himself in violation of Chapter 38, Section 11 — 9, Illinois Revised Statute * *."

The crime of public indecency is defined in section 11 — 9 of the Criminal Code which, in pertinent part, provides:

“(a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
(3) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person; * *

Defendant asserts that under subsection (a)(3) of sec. 11 — 9, the essential elements which must be charged are (1) a lewd exposure; (2) an intent to arouse or satisfy sexual desire; and (3) conduct occurring in a public place. He maintains that, although the complaint charges masturbation, it says nothing about a lewd exposure and that it contains no charge of intent to arouse or satisfy his sexual desires and, because of these inadequacies, he was not charged with the offense of public indecency.

The State argues that the complaint charges masturbation, which is a type of lewd exposure; that intent was adequately alleged; and, in any event, the complaint sufficiently apprised defendant of the offense charged to enable him to prepare his defense and to plead any judgment rendered as a bar to subsequent prosecution. It refers us to People v. Mikota, 1 Ill.App.3d 114, 273 N.E.2d 618, in support of this contention. We note, however, that in Mikota, the complaint charged every element of the offense, and the issue there concerned whether the complaint adequately informed defendant of the nature of the offense charged.

It is a fundamental rule of criminal pleading that a complaint which does not set forth the nature and elements of the crime sought to be charged fails to state an offense and is subject to dismissal. (People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765.) See also, People v. Leach, 3 Ill.App.3d 389, 279 N.E.2d 450, where it was held that a complaint which does not set forth all of the essential elements of the crime charged fails to state an offense and cannot support a conviction.

In People v. Stewart, 3 Ill.App.3d 699, 279 N.E.2d 53, it was held that an indictment simply charging that the accused obtained control over property of another intending to deprive him permanently of its use or benefit, did not charge tire crime of theft and was fatally defective because it failed to allege that control was obtained by unauthorized means, by deception or by threat. The court further held that where the conduct alleged in an indictment may in itself be wholly innocent, it is essential that the unlawfulness be averred either by express allegation or by the use of terms which clearly imply such unlawfulness.

Defendant makes the point that masturbation of itself does not necessarily involve a lewd exposure. We agree and are of the opinion that, under the Stewart standard, the complaint here, which did not allege a lewd exposure of the body, failed to allege an essential element of the crime of public indecency. Where a conviction rests on such a complaint, we will reverse without remand. People v. Leach, supra.

In view of this holding, it will not be necessary that we discuss the remaining contentions of defendant.

For the reasons stated, the judgment is reversed.

Judgment reversed.

DRUCKER and LORENZ, JJ., concur.


author: Mr. JUSTICE BARRETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clinton Bennett, Defendant-Appellant.
    (No. 58776;
    First District (5th Division)
    June 7, 1974.

      James J. Doherty, Public Defender, of Chicago (J. Powers McGuire, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Mariann Twist, and Nicholas P. Iavarone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

The defendant appeals from an order sustaining the motion of the State to dismiss the defendant’s pro se post-conviction petition without an evidentiary hearing. The Public Defender was appointed to represent the petitioner.

After prior pleas of not guilty to charges of murder and illegal possession of narcotics, the defendant on October 28, 1968, changed his pleas to guilty and was sentenced to 14 years to 20 years on the murder charge and to 5 to 10 years on the narcotics charge, the sentences to run concurrently.

In his pro se post-conviction petition filed September 28, 1971, the defendant sought to have his convictions reversed on the ground that his change of pleas from not guilty to guilty were not understandably made and, as such, not voluntary and on the additional ground that his privately retained counsel was incompetent for various alleged reasons. In support of his contention of involuntariness, the defendant alleges in his petition that before his change of pleas his counsel represented to him that he had no chance of being set free for various reasons and that the prosecutor, the judge and his counsel had reached an agreement that on guilty pleas he would be sentenced to a term of 5 to 10 years for manslaughter. As a part of his petition, the defendant filed an affidavit by one, Clinton Bames, a defendant in another case, who states in the affidavit that he heard the defendant’s counsel tell the defendant in the bullpen adjacent to the courtroom that “five to ten years was the best he could do.” The affidavit is silent as to which of the two charges the 5 to 10 years may have referred to and a sentence of 5 to 10 years was, in fact, imposed on the narcotics charge. It is worthy of note that on oral argument counsel for the defendant conceded that the affidavit was of slight, if any, probative value. On the hearing of the State’s motion to dismiss the post-conviction petition, the State offered and the court received in evidence the report of proceedings of the hearing, resulting in the change of pleas. That report of proceedings makes it abundantly clear that before accepting the defendant’s guilty pleas the court thoroughly advised the defendant that he was charged with unlawful possession of narcotics and with murder and that on the murder charge the defendant could be sentenced to a term of not less than 14 years or might, indeed, suffer capital punishment and that on the narcotics charge the minimum sentence was 5 years and the maximum a term of life in the penitentiary. Not only was the court abundantly clear in its explanation of the possible punishment, but then inquired of the defendant whether, with the understanding of possible punishment, he still decided to enter pleas of guilty and the defendant responded in the affirmative. The court further put into the record that defendant, after having been advised of the consequences of his pleas of guilty, persists in such pleas.

While it is true that when a post-conviction petition raises a claim of substantial constitutional denial based on assertions beyond the record, evidence may be taken to determine the validity of the claim (People v. Williams, 47 Ill.2d 1, 264 N.E.2d 697), it is equally true that the petitioner’s allegations in the post-conviction petition are to be considered in the light of the record in determining their sufficiency. Here the record shows beyond the question of a doubt that the defendant was informed by the court of crimes with which he was charged. The crime of manslaughter was not mentioned anywhere in the report of proceedings and the defendant was informed of the possible sentence for murder, not for manslaughter. It is impossible to conceive that the defendant had any misunderstanding because he was certainly not a novice in courtroom procedure. When sentence was passed he stood mute although he had every opportunity to address the court or, at least, ask permission of the court to confer with his attorney to indicate any possible misunderstanding. Furthermore, when the sentence was imposed, defendant had a further opportunity to withdraw his plea of guilty to the murder charge and re-enter his plea of not guilty. It is our judgment that the record in this case completely contradicts the defendant’s contention that his plea was involuntary or that he “didn’t even know what he was pleading to.”

Similarly, the record negates defendant’s claim that his retained counsel was incompetent. Defendant asserts that his counsel did virtually nothing by way of investigation, did not obtain a coroner’s report, file motions, or interview witnesses. In his petition defendant admitted killing the victim and further admitted the persuasion of four young men to help him dispose of the body of the victim. It must be assumed that the defendant told essentially the same story to his attorney as narrated in his post-conviction petition. Hence, what value to a coroners report? Defendant’s petition demonstrates that he might have had one possible witness whom he admits he didn’t know. Hence, what witnesses to be interviewed? The State had the four young men who aided in disposing of the body so it is a certainty that an interview with them would have been an exercise in futility. In the light of these facts, the various omissions charged by the defendant cannot be said to be such as would result in substantial prejudice to him without which the outcome would probably have been different. (People v. Bliss, 44 Ill.2d 363, 255 N.E.2d 405.) We are persuaded that defendant’s claim of incompetency of counsel was based solely on unsupported assertions and, as such, insufficient. People v. Pittman, 7 Ill.App.3d 1079, 288 N.E.2d 702.

Where defendant is represented by counsel of his choice alleged incompetence of counsel presents no question for consideration in a post-conviction proceeding unless representation is of such low calibre as to amount to no representation at all or reduce the court proceedings to a farce or sham. The record shows that defense counsel asked for and was successful in convincing the court to pronounce a lesser sentence on the murder charge than the 15 to 50 years recommended by the State. This area of the record demonstrates that counsel for the defendant had full knowledge that a client was being sentenced for murder and not for manslaughter and it is difficult to conclude that any attorney could possibly stand by and permit a sentence for murder if he had any thoughts that he had an agreement for a sentence for manslaughter. All factors considered, it cannot be said that the record indicates that the defendant had “no representation at all.” It is our judgment that the trial judge was thoroughly justified in sustaining the State’s motion to dismiss the post-conviction petition without an evidentiary hearing and the court’s dismissal of the petition is accordingly affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herbert Catlett, Defendant-Appellant.
    (No. 58499;
    First District (5th Division)
    June 7, 1974.
    James J. Doherty, Public Defender, of Chicago (Shelvin Singer, Assistant Public Defender, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

This appeal arises from a bench trial judgment in which defendant-appellant was convicted for armed robbery and sentenced to the Illinois State Penitentiary for a period of not less than 7 and not more than 7 years and 1 day. We affirm the judgment of the trial court.

The appeal raises four issues: (1) Whether pre-trial identification procedures were unduly suggestive; (2) Whether the failure to specifically name the dangerous weapon used to perpetrate the alleged crime rendered the indictment fatally defective; (3) Whether the sentence imposed was improper and contrary to the principles of indeterminate sentencing; (4) Whether defendant was proven guilty beyond a reasonable doubt.

On the evening of October 27, 1971, Giulio Piunti and Jeffrey Denis Means were working at Romano’s Liquors in Chicago. Piunti was the manager of the store and Means was his assistant.

At approximately 9 P.M. two black males entered the store. One of these men was the defendant. The two men were soon joined by another black male. Piunti testified that his attention was drawn to the three men because they were “congregating from one section of the store to another.” It was also brought out in testimony that the entire store was lighted by various 8-foot fluorescent lights which were in operation that night.

After defendant and his two companions had been in the store for approximately 10 minutes, defendant approached the check-out counter with a bottle of wine. As Piunti stated the amount of the purchase, he looked up and saw defendant pointing a revolver at him. Means, who was standing at the back of the store, observed defendant pointing a revolver at Piunti. Following defendant’s orders, Piunti placed the money from the cash register into a bag.

Means related substantially the same story as Piunti, adding that once he observed defendant pointing a revolver at Piunti, he was confronted by one of defendant’s companions. This individual told Means to lie down on the floor and raise his hands. Once Means was on the floor, one of the men took his wallet. While defendant was still at the cash register with Piunti, Means was ordered to get up and walk toward the front of the store.

At this time, defendant brought Piunti toward the rear of the store. Both Piunti and Means were ordered to he down on the floor. Defendant and his companions then left the liquor store.

After the robbery, the police were called. Later that same evening, Piunti and Means were taken to the police station. After looking through 150 to 200 photographs, both men made tentative identifications of defendant as one of the robbers. Piunti then turned over the picture he had identified and observed the name “HERBERT CATLETT” on the back of the picture.

On October 28, 1971, Piunti and Means went to the police station to view a suspect held in police custody. Neither man could identify the suspect as one of the robbers.

On October 29 or 30, 1971, more pictures were shown to Means and Piunti. Defendant’s photograph was not in this group. At this time no identifications were made.

One week after the robbery, on November 3, 1971, Piunti and Means were called down to the police station to view another suspect. As the two men descended the stairs to the police station they saw defendant inside. Means and Piunti nodded to each other as they recognized defendant as one of the robbers. The two men then entered the room where defendant was sitting. When defendant left the room a few moments later to make a telephone call, Piunti asked one of the police officers, “Who is that man and where is he going?” The officer said, “That’s Herbert Catlett.” Piunti then responded, “Well, he’s the one who held me up.”

At the time of the identification, defendant was at the Chicago Heights Police Station in the custody of the Illinois State Police.

During the course of his trial, defendant took the stand in his own defense. He stated that he was in Romano’s Liquor Store between 7:30 P.M. and 8 P.M. on October 27, 1971. At that time he allegedly made some purchases and left the store. He then went to his brother’s house nearby where he remained the rest of the night.

OPINION

Defendant contends that the in-court identifications of the witnesses were improperly admitted and constituted a denial of due process because they were the product of an unduly suggestive pre-trial confrontation. In support of his argument, defendant cites Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Blumenshine, 42 Ill.2d 508; Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967; People v. Fox, 48 Ill.2d 239; United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926; and Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951. The State argues that the pre-trial identification of defendant at the police station was coincidental and not the product of a show-up as proscribed by such decisions. In People v. Pardue (1972), 6 Ill.App.3d 430, it was recently held that an inadvertent out-of-court confrontation leading to the identification of the accused need not in and of itself mandate the suppression of the out-of-court identification. An accidental confrontation does not vitiate the out-of-court identification, especially “where the identification was immediate, spontaneous, unprompted and positive.” See 6 Ill.App.3d 430 at 432, supra.

In the case at bar, the identification following the accidental confrontation was immediate, spontaneous, unprompted and positive. Furthermore, there is nothing in the record to indicate that the confrontation was anything but accidental. At the time of the confrontation defendant was in the custody of the State Police for violation of a traffic law. There is no evidence whatsoever that the identification of defendant in the police station constituted a staged show-up. Each witness based his positive in-court identification upon his actual view of the defendant at the scene of the robbery. At that time, the opportunity to observe was excellent, including the lighting and the length of time defendant was in close proximity to the witnesses. We find that the in-court identification of the defendant was reliably predicated upon observations independent of any pre-trial confrontation and that the trial court properly admitted such evidence.

Defendant next argues that the indictment was defective in that it described the weapon as a dangerous weapon, without specifically naming it. It is a well established rule of law that an indictment framed in the words of the statute defining the offense is sufficient to inform the defendant of the nature of the charge against his. (People v. Mikota (1971), 1 Ill.App.3d 114.) Framed in the language of sections 18 — 1 and 18 — 2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, pars. 18 — 1, 18 — 2), the indictment sufficiently charged every element of the offense of armed robbery.

Next it is argued that the sentence imposed was improper and contrary to the principles of indeterminate sentencing. Defendant was sentenced to a minimum of 7 years to a maximum of 7 years and a day. Because there is no appreciable “spread” between the minimum and the maximum sentence, defendant alleges error.

The most convincing fact militating against defendant’s argument is that he requested the sentence imposed upon him. In addition, armed robbery is a Class 1 felony in Illinois. (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 2). For a Class 1 felony, any indeterminate sentence in excess of 4 years is appropriate. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1). Clearly the sentence of 7 years to 7 years and 1 day falls within the prescribed limits of the statute.

Defendant also contends that the trial court erred in not following the American Bar Association recommendations for indeterminate sentencing. The American Bar Association advocates a one-to-three ratio between minimum and maximum sentences. Although the recommendations have been adopted by the State of Illinois (Illinois Unified Code of Corrections, ch. 38, arts. 1003 — 3, 1003 — 8, 1003 — 9, 1003 — 10, 1003 — 11, 1003 — 13), they are to be considered as a guide and not as a mandatory requirement for imposition of a proper sentence. People v. Hulvey (1972), 3 Ill.App.3d 617.

Because the sentence falls within the limits imposed by statute and was expressly requested by defendant it should not be disturbed.

Defendant also presents a number of points which, when considered together, he believes show that he was not proved guilty beyond a reasonable doubt.

We cannot agree. The robbery occurred in a well-lighted liquor store. The robbers made no attempt to conceal their identity so that they were observed by the witnesses for almost a half hour. The conditions on which witnesses based identification of defendant were optimal. Considering all of defendant’s argument as a whole, we find no reason to interfere with the trial court’s finding of guilty. It is our opinion that defendant was afforded a fair trial and was convicted of the crime of armed robbery beyond a reasonable doubt.

For the reasons stated above, the judgment of the trial court is affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Terry et al., Defendants-Appellants.
    (No. 58455;
    First District (5th Division)
    June 7, 1974.
    James J. Doherty, Public Defender, of Chicago (Robert Gevirtz, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Alan W. Brothers, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Carr, Defendant-Appellant.
    (No. 58771;
    First District (3rd Division)
    June 6, 1974.
    Elliott T. Price, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The mezzanine section of Tumer-Fagman Clothiers, a clothing store located in the Sherman Hotel, Chicago, was broken into on a weekend in June 1970, and a quantity of merchandise was taken. The defendant, Richard Carr, was arrested for the crime, tried by a jury, found guilty and sentenced. The evidence proved him to be guilty beyond a reasonable doubt, but two trial errors impel the reversal of his conviction and the remandment of his case for another trial.

A fur coat with a Tumer-Fagman label was found in Carrs apartment. At this trial a motion was made to suppress this evidence. The court denied the motion without conducting a hearing to determine if the search and seizure was constitutionally permissible. The State concedes that this was error, but suggests that the case be remanded instead of reversed, with directions to vacate the judgment and to hold a hearing on the motion to suppress, and if the motion should be allowed to grant the defendant a new trial and if it is denied to enter a new judgment of conviction.

This is approved procedure (People v. Thomas (1967), 88 Ill.App.2d 71, 232 N.E.2d 259) and would be proper if the failure to conduct a hearing on the motion were the only trial error. However, it was not. A police officer injected into the case intimations that Carr had committed criminal offenses other than the burglary for which he was being tried. In his testimony the officer related a conversation he had with Carr after his arrest. He quoted Carr as saying that he worked with a person named Scott “who is buying all my stolen property * * The defendant’s objection was overruled and the officer continued to testify that Carr said, “Scott, who was buying this stolen property, • * * was waiting out in the back of his [Carr’s] building now to pick up the machines that were up in his apartment, the office machines.”

A defendant is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged and evidence of other offenses unrelated to the crime from which he is on trial is incompetent. (People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120; People v. Brown (1972), 3 Ill.App.3d 1022, 279 N.E.2d 765.) The references to all Carr’s stolen property and to the office machines which were in Carr’s apartment (no such machines had been taken in the Tumer-Fagman burglary) implied that Carr had been involved in other burglaries or thefts. There was no legal justification for informing the jury of this damaging portion of Carr’s statement and its inclusion in the officer’s testimony was prejudicial and denied the defendant a fair trial.

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

McNAMARA, P. J., and McGLOON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. James E. Williams, Defendant-Appellee.
    (No. 57267;
    First District (5th Division)
    June 7, 1974.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
    David Lincoln Ader, of Chicago, for appellee.
   PER CURIAM.