author: Mr. JUSTICE SCOTT Mr. PRESIDING JUSTICE ALLOY,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Francis Leonard Roberts et al., Defendant-Appellants.
    (No. 70-38;
    Third District
    — October 26, 1971.

      ALLOY, P. J., dissenting.
    Marshall E. Douglas, of Moline, for appellants.
    James N. DeWulf, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

The defendants were tried by jury for burglary and theft resulting in the conviction of defendant Campbell for the crime of theft and defendant Roberts for both burglary and theft.

On October 25, 1969, both defendants, accompanied by defendant Roberts brother, were in an automobile on the country road when they were stopped by a deputy sheriff of Rock Island County, one Calvin Wainwright. A search of the automobile resulted in finding certain tools purportedly stolen from the Paul J. Gruneau Company.

The defendants contend that the trial court erred in refusing to suppress evidence seized from the defendants on the night in question. In advance of trial defendants filed their motion to suppress and hearing was had thereon resulting in the court’s denial of said motion. A review of the testimony both at the preliminary hearing and at the trial is required for proper understanding of this decision.

On the night of the arrest Wainwright, while on routine patrol, stopped at the 3M Company near the scene where the arrest was made and talked to one Stephens, a guard at the plant. This was around 11:00 P.M. Stephens advised Wainwright that there were a couple of cars and a lot of activity out on Old Trail Road. This road is a public road, although lightly traveled, apparently leading behind the 3M plant and near a spot where certain construction was being performed for Commonwealth Edison Company by the Paul J. Gruneau Company. The road had been patrolled by the Sheriff’s police for some time, their purpose being to look for teenagers who might be drinking. Wainwright testified that as he proceded down the Old Trail Road he observed the lights come on an automobile approximately 200 yards ahead of him; that the car had been parked and as he approached the lights turned on and the automobile proceeded toward him. He then turned on his flasher light and stopped the car. At that time he had not been advised that a crime had been committed and to his knowledge a crime had not been reported in the vicinity. When he observed the other car proceeding toward him he turned on his flasher fight and the other automobile came to a stop with the front bumpers of each car almost touching. He further testified that had the other automobile attempted to elude him he would have made every effort to stop it. He further testified that Roberts then stepped out of his automobile, removed a pair of gloves, threw them in the back seat of the car, and he and Roberts talked while standing between the two cars. Roberts produced his drivers license for examination and when asked by Wainwright what he was doing in the area he advised Wainwright that he was just looking around. Wainwright then proceeded to defendants’ car, where he observed the defendant Campbell and defendant Roberts’ brother. He testified that he used his spotlight on the car, a station wagon, and noticed certain boxes in the rear of the wagon. Roberts advised him there were tools in the boxes that he used at his place of employment. Up to that point Wainwright stated he did not know what the boxes contained. He then testified that he was able to observe a large box and smaller boxes and was also able to observe a drill and an acetylene torch. He testified he did not know who the defendants were and from all that appears of record he was not aware of any criminal record or criminal connection of the defendants. He testified that his only purpose in stopping the defendants was because of the fact that the car was parked on the road without fights. He further testified that had the occupants in the car been a man and a woman he would have merely told them to proceed on and not park in the area.

After observing the torch, drill and the boxes he ordered the defendant to turn around and drive back in the direction from which they came. After traveling in that direction for approximately 100 yards they came upon a wheelbarrow and boxes with tools lying on the ground along the edge of the road. They drove back up to the road to the Commonwealth Edison site where the construction was taking place and in front of several guards advised the defendants of their “constitutional rights”. He testified that he did this because he wanted to investigate a possible burglary or theft.

Defendant Roberts’ testimony insofar as it is pertinent to these proceedings, is that the fights of his automobile were at all times on and that he was not parked at the time when Wainwright’s automobile approached him. He testified that because of tire curves and bends in the road and other obstructions Wainwright could not possibly have seen his lights as the two automobiles came toward each other.

Defendant in his motion contends that there were no reasonable grounds for the arresting officer to believe that the defendants had committed or were about to commit a crime at the time the vehicle was stopped and that his search of the vehicle, not being an incident to a lawful arrest and committed without the consent of the defendants, was illegal and that any evidence obtained as a result of that search should be suppressed.

It must first be noted that the legality of a search is not to be determined by its results. (People v. Parren, 24 Ill.2d 572, 182 N.E.2d 662.) The Supreme Court there also stated:

“The case thus presents in sharp focus one aspect of the recurrent conflict between the interest of the public in the suppression of crime on the one hand, and on the other the constitutionally guaranteed searches and seizures.”

The court further points out that under neither the federal nor the state constitution may a conviction stand that is based upon evidence that is the product of an unreasonable search and seizure.

The “search” in this case was not strictly speaking a search because the torch, drill and boxes were in plain view to Wainwright. Search implies an invasion and quest with some sort of force, either actual or constructive. (People v. McCracken, 30 Ill.2d 425, 197 N.E.2d 35; People v. Wood, 26 Ill.2d 557, 188 N.E.2d 1.) The contraband in the case at bar was in plain view of the deputy, who was able to observe it in the light of the spot light on the police car.

Defendants contend, however, that the stopping of the automobile under the circumstances in this case was without cause and that the subsequent discovery of the contraband is therefore illegal.

In People v. Tassone, 41 Ill.2d 7, 241 N.E.2d 419, the Supreme Court stated:

“Whether a search and seizure is reasonable depends upon whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified initial interference with the defendant’s personal security. In making this determination an objective standard is to be applied: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution to believe that the action taken was appropriate?” Citing Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.”

The Supreme Court went on further to say:

“In light of the guidelines set forth in the Terry case, the facts of this case indicate that the stopping of the truck was entirely proper and reasonable. The officer, as a representative of the law enforcement arm of government, was interested in effectively discovering and preventing crime, and this interest justified the officer in approaching the defendant to investigate the suspicious circumstances and possibly criminal behavior.” (Emphasis supplied).

In People v. Catavdella, 31 Ill.2d 382, 202 N.E.2d 1, defendant’s car was stopped by police officers and they observed in the back seat of the car items that they subsequently learned had been stolen. The Supreme Court said:

“The only evidence of the defendant’s guilt is the evidence which was discovered in the back seat of the car at the time of the arrest. The State argues that, since the articles were visible in the back seat of the car there was no search. However, these articles were seen only after the arrest and the seizure cannot be divorced from the question of the validity of the arrest. Whether these items were properly admitted in evidence depends therefore upon the validity of the arrest.”

Justice Schaefer in his dissenting opinion disagreed only to the extent of believing that the case should have been remanded for a new trial for the purpose of establishing the “validity of arrest.” In Catavdella a majority of the Supreme Court obviously found there was no basis to stop the defendant’s motor vehicle, while in the case at bar it might be argued that there was some basis to stop defendants’ car.

In People v. Tassone, supra, the police officers had observed a truck parked behind a motel and upon investigation found that the keys were in the ignition. They watched the truck for a period of three hours when they observed the defendant and two others drive up in an automobile. Defendant got into the truck and drove it away. They stated that the defendant obviously had not come from the motel. They had during their surveillance notified the police station to check out the possibility of a theft, however, at the time they stopped the truck they had not received a report from the dispatcher. On these facts the Supreme Court held:

“While there would be nothing suspicious in defendant’s merely entering and driving a truck, suspicion was reasonably aroused when a truck, which has been parked behind a motel on a Sunday for at least three horns, and which had the keys in the ignition, was entered by someone arriving at the scene by automobile and not from the motel behind which the truck was parked. This conduct warranted further investigation, and the officer would have been less than diligent if he had failed to approach the defendant for an explanation.”

The court went on further to comment:

“Nor did the arrest, or “seizure,” of defendant become unreasonable because of what happened subsequently. The “search”, if that is what it can be called, was extremely limited in scope * *
“The subsequent “arrest,” or taking of defendant into custody which can be classified as a more intensive “seizure” than the original stopping for investigation, was therefore perfectly justifiable and reasonable within the meaning of the fourth amendment.”

In the case at bar Wainwright admittedly did not stop defendants to investigate possible criminal behavior. It may well be that the circumstances confronting him appeared suspicious, i.e., the car parked along the road. However, this suspicion must have been one of something less than criminal activity, for he testified that had he observed only a man or a woman driving the car he would have told them to move on. While the standard to be used in an objective analysis of the situation confronting the officer, we cannot ignore the fact that he himself acknowledged that the stopping of the defendant was on alleged misconduct. The testimony does not suggest in the slightest that he was able to see three men in the car until after it was stopped. If his purpose was to request the driver of the car to move on there was no need to do this, for the car was already moving on. To say that the facts confronting Wainwright “at the moment of seizure or the search” would “warrant a man of reasonable caution to believe the action taken was appropriate” would in our minds lay aside the decision in People v. Catavdella, supra, and render superfluous all discussions relating to the reasonableness of a “seizure” and a subsequent search or finding of incriminating evidence. In their argument the People contend that Wainwright stopped the defendant on a deserted road. The record is to the contrary. While the road may have been slightly used it was acknowledged that it was in fact used and patrolled by the sheriff’s department in search of youngsters illegally drinking. The record also establishes that other motor vehicles have from time to time been observed parking in the area.

It is the opinion of this court that the lower court erred in its refusal to suppress the evidence. Inasmuch as the cause will be reversed without remanding, there is no need to consider the other question raised by the defendants in their motion.

Judgment reversed.

STOUDER, J., concurs.

Mr. PRESIDING JUSTICE ALLOY,

dissenting:

I must respectfully dissent from the majority decision in this cause. The only real issue in this cause is whether the deputy acted reasonably when he stopped the automobile occupied by defendants.

The deputy had been advised by a guard at the construction site late at night that a couple of automobiles had been seen going along the lightly traveled dirt road near the boundary of the construction property. While the deputy was patrolling the dirt road he came upon a vehicle on the road apparently with its lights off. The deputy stated that the lights came on immediately and the vehicle came toward the deputy’s squad car. When the deputy stopped the automobile the driver of that automobile stepped out of the automobile removed a pair of gloves and threw them in the back seat of the car. The deputy at such time could see in plain view, in the back of the station wagon, several boxes that had equipment markings on them and equipment consisting of tools. When the deputy asked what the driver was doing with all the equipment in the boxes, defendant Roberts responded that he had worked at Commonwealth Edison and used the equipment on his job. The deputy then directed the three men in the car to drive back to the guard shack on the construction site. At the place where defendants’ vehicle had been parked, the deputy saw a wheelbarrow with tools inside the wheelbarrow and tools laying on the ground.

The deputy had been patrolling the road. Such patrolling obviously included reasonably checking vehicles moving suspiciously or in suspicious circumstances as against the possibility of a theft or burglary. The deputy was not solely concerned with traffic control. The situation which confronted the deputy was unusual and his conduct at the time was obviously reasonable. Any other course of action, it appears, would have involved a failure on the part of the deputy to discharge his duty as a patrolling officer.

To say that defendants were stopped without justification and the subsequent search was, therefore, illegal, I believe, distorts the decision in People v. Catavadella, 31 Ill.2d 382, 202 N.E.2d 1, and also the well-considered decision in People v. Tassone, 41 Ill.2d 7, 241 N.E.2d 419. As the court pointed out in the Tassone case, whether a search and seizure is reasonable depends upon whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified initial interference with defendant’s personal security. In making this determination the court said that an objective standard which is to be applied is whether the facts available to the officer at the moment of seizure would cause a man of reasonable caution to believe that the action taken was appropriate. As indicated in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, an officer, as a representative of the law enforcement arm of the government, is justified in investigating suspicious circumstances and possible criminal behavior where reasonably indicated. That certainly was the situation in the case before us. The three men were on a relatively deserted road late at night with their fights off, as the deputy testified. The fights were turned on at the approach of the deputy’s automobile. It is no answer to the problem to state that if the deputy had discovered that it was a man or a woman driving the car, without any other suspicious circumstances, he would have permitted them to move on. It is hardly a logical analysis to say that the deputy acted unreasonably under the circumstances in this case. I believe that the observations in the Tassone case apply in the instant case. The seizure of the articles involved were incidental to, even though following, the arrest. Such procedure has been approved. People v. Pickett, 39 Ill.2d 88, 233 N.E.2d 560.

I, therefore, believe that the deputy acted reasonable and that the refusal to suppress the evidence was proper. The action of the trial court in this cause should be affirmed.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James F. Palmer, Defendant-Appellant.
    (No. 70-175;
    Third District
    — October 28, 1971.

      Theodore A. Gottfried, of Defender Project, of Ottawa, for appellant.
    James N. DeWulf, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant-Appellant, James Palmer, was indicted for the offense of forgery. After accepting defendant’s plea of guilty the trial court held a hearing on defendant’s application for probation, denied same and sentenced the defendant to a term of from one to seven years in the penitentiary. The only assignment of error on this appeal is defendant’s argument that the sentence imposed was excessive and that the trial court erred in denying his application for probation.

The facts which make up this record represent the evidence presented at the hearing on defendant’s application for probation.

The defendant was married before he graduated from high school. After graduation the defendant worked as a laborer for four years. He was then twenty-one years old and he and his wife had two children.

In the eighteen months between August 1953 and Feburary 1955, the defendant was divorced, was convicted of forgery for which he served six months in jail and a three month parole, and was convicted again of uttering fictitious checks. For the latter conviction he served three years in the penitentiary and two years on parole.

Between 1958 and 1962 the defendant worked as a bakery route salesman and supervisor. Then the defendant moved to Kearney, Nebraska, where in November, 1962, C. L. Dungan, the branch manager of Businessmen’s Insurance Company, hired the defendant as an insurance salesman. In two years the defendant had worked his way up to the position of manager and had three men working for him. At this point Dungan suffered a heart attack and was forced to retire from the insurance business for about two years.

During Dungan’s retirement the defendant continued working for Businessmen’s Insurance. In 1966, defendant married Ora Mason. Ora Mason had four children. Three of them were living with her when she married the defendant. Defendant’s wife, his step-daughter and a neighbor all testified in defendant’s behalf indicating that he was a good husband and step-father. According to his wife, defendant had some drinking problems at the time of their marriage but he had gotten over them shortly after their marriage.

At about the time of defendant’s marriage in 1966, Dungan had recovered his health and opened another office in Peru, Illinois. Dungan offered the defendant a territory centering around the Quad Cities. Since Ora Mason welcomed a fresh start for herself and her children, the defendant accepted the offer and moved his family to Hampton, Illinois.

This cause arose in late 1967, about ten months after defendant and his family moved to Hampton, Illinois. The defendant had just contracted to pinchase a house and a new car when his wife, who had been working, became ill and had to undergo emergency surgery.

At that point the defendant received a premium refund check for one of his customers, Mrs. Iva Dillingham. She told the defendant to apply the proceeds of the check ($114.35) to another policy on which premium payments would not be due for two years. Instead, the defendant endorsed her name and his own on the back of the check, cashed the check, and applied the proceeds to his own household expenses. The defendant intended to make good the check before the premium payment became due, but was not able to do so.

The defendant cashed this check at a bank where Mrs. Dillingham and he had checking accounts. Mrs. Dillingham did not find out about the defendant’s failure to apply the refund to her premium until late 1969. At her request, the insurance company sent her a copy of the cancelled check showing that defendant had endorsed and cashed the check at the Bank of Silvis in October, 1967.

Meanwhile, during the early part of 1969, the defendant had overdrawn his checking account at the Bank of Silvis. The bank permitted the defendant to add the amount of the overdraft to a personal loan on which he was then paying the bank. In June of 1969, the defendant filed a Wage Earner plan in bankruptcy. The loan from the Bank of Silvis was one of the debts scheduled in that action.

Mrs. Dillingham took the photostat of the refund check and showed it to the President of the Bank of Silvis. The President testified, “* * * I refunded Mrs. Dillingham her money, to give me the check, we would see if we couldn’t collect it.”

The bank charged the check off to its “bad checks account” and took the check to the Sheriff of Rock Island County. When the defendant was advised that the bank had filed a criminal complaint, he and his employer, Dungan, went to the President of the bank.

The President refused to accept restitution for the refund check. He advised Dungan that in order for the bank to do anything, they would have to be paid not only the amount of the check, but the full amount of the loan which had been scheduled as part of the Wage Earner Plan.

The probation officer recommended that probation be denied. This recommendation was based upon an interview with the defendant and the officer’s perusal of the police reports in the case.

The defendant’s employer, Dungan, testified that the defendant was a sales manager supervising two salesmen in a three county area. He also testified that if the defendant was admitted to probation, he could continue in that employment.

The trustee of defendant’s Wage Earners Plan testified that the defendant had been and was making an honest effort to pay off his debts rather than have them excused in straight bankruptcy. To that date, the defendant had paid off nearly $1,800.00 on the plan. In the trustee’s opinion, all the debts would be paid eventually.

On appeal defendant argues the sentence of one to seven years in the penitentiary is excessive and that his application for probation should have been granted. On the other hand the State argues that the sentence is reasonable and proportionate to the offense charged.

Review of sentences is provided for by Supreme Court Rule 615(c). Such power of review is ordinarily exercised with caution and circumspection, courts being reluctant to disturb trial court decisions in this regard. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) Sentencing and its role in our criminal justice system is receiving increasing attention. The basic assumption is that sentencing should be aimed to reintegrate the defendant into the society. As indicated in People v. McClendon, (Ill. App.2d), 265 N.E.2d 207, probation as contemplated by Ill. Rev. Stat. 1969, ch. 38, par. 117 — 1(a), is a positive tool in the sentencing process. Where incarceration is not required for rehabilitation or for the protection of society it serves no social utility in the future protection of society.

It is the position of the State apparently shared by the trial court, that in view of tire nature of the offense and defendant’s prior record, incarceration for a period within the limits designated by the statute can not be deemed excessive. Such an argument does not in our judgment represent an adequate application of the principles applicable to sentencing. No reasons are advanced by the State suggesting that incarceration is required for the protection of society or for rehabilitation. Nor can it be said that probation is an inappropriate readjustment procedure.

Nearly ten years had elapsed since defendant’s previous offenses and the conditions revealed by the testimony indicated good prospects for defendant’s future good behavior.

Additionally we would note that the nature of the circumstances surrounding this prosecution also mitigate against the propriety of incarceration. The State’s Attorney disclaims any interest or purpose to utilize the criminal process for bill collecting and we have no reason to doubt the sincerity of his disclaimer. However the testimony of the bank officer is another matter. From his own testimony it appears that he was primarily concerned not only with recovering the amount of the forged check but recovering in behalf of the bank the added indebtedness of defendant to the bank represented by a personal loan. The bank official on cross examination testified as followed, “Q. When you talk about taking legal action and attempting to collect, are you referring to filing criminal complaints? A. Any type of legal action. Q. You don’t differentiate between civil and criminal action? A. No, sir, not on a bad check, no sir.”

We do not and can not condone forgery. Likewise we do not approve criminal proceedings instituted for the manifest purpose of collecting money. Where such is the state of facts we can only conclude that the seriousness of the offense is greatly mitigated and in the case at bar supports the conclusion that the sentence imposed or any incarceration is excessive. Contrariwise there is ample evidence supporting the conclusion that probation is an appropriate punishment.

During the pendency of this appeal defendant was released on bail fixed by this court after as we understand, having served approximately ninety days of his sentence. In accord with the foregoing reasoning the judgment of conviction of the circuit court of Rock Island County is affirmed but the sentence is vacated and the cause is remanded with directions that defendant be admitted to probation for a period of three years on the usual terms and conditions with the special condition providing for incarceration for the period which the defendant has already served it being deemed that such incarceration shall be considered to have satisfied such special condition.

Affirmed in part, reversed in part and remanded.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred M. Williams, Defendant-Appellant.
    (No. 70-89;
    Third District
    — November 5, 1971.

      Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Fred M. Williams, pleaded guilty to the offense of aggravated battery and was sentenced by the circuit court of Kankakee County to a term of imprisonment of not less than seven nor more than ten years. It is from this sentence that the defendant appeals.

The defendant and one James Bell, Jr., were rival suitors for the affections of a young lady named Mary Ann Brookshaw. On the night of October 25, 1969, the defendant was with Mary Ann Brookshaw in her apartment. There was some misunderstanding as to whether the defendant or Bell was to enjoy the young lady’s company on that particular evening so she suggested that Bell be called and requested to come to the apartment so that the matter could be discussed. Bell responded to a telephone call and came to the Brookshaw apartment. There was apparently a short discussion between Bell, Mary Ann Brookshaw and the defendant as to who was to be recognized as the lady’s suitor. The evidence is conflicting as to whether during the course of this discussion or disagreement Bell displayed a three inch knife, wielded such a knife, or in fact whether or not he even possessed such a knife, but the confrontation between Bell and the defendant ended when the defendant obtained a shotgun which he had hidden in the apartment and ordered Bell to leave. As Bell was attempting to comply with the defendant’s command by turning and going down a stairway he was shot in the upper left shoulder and back. The victim Bell was hospitalized for a period of two months and six days. Testimony was presented by the victim that he no longer had the use of his left hand or arm.

After the shooting the defendant left Kankakee but returned and voluntarily surrendered to the sheriff on December 9,1969.

The defendant was indicted for the crime of aggravated battery and subsequently entered a plea of guilty to such charge and made application for probation. A probation report was filed which recommended that the defendant be placed on probation, but this application for probation was later withdrawn. A hearing in aggravation and mitigation was had and on the night before the conclusion of such hearing the defendant, being incarcerated in the county jail, requested permission to make a telephone call. This request was granted and the call made, but as the defendant was being returned to the cell block he attacked a deputy sheriff, striking him on the head and shoulder. A scuffle for possession of the cell block keys ensued but the defendant was subdued and returned to his cell, The deputy sheriff was treated at the hospital for injuries received in the altercation. The defendant testified that the incident occurred when he was called “a big black brazen bastard” by i the deputy sheriff. The deputy denied making any such remarks or doing anything to provoke the attack.

The record further discloses that when the defendant entered his plea of guilty to the charge of aggravated battery he did so upon the representation of the State’s Attorney that a pending armed robbery charge against him would be nolle prossed. Evidence of this latter charge was presented during the hearing on aggravation and mitigation by a witness named William Ludwig, who stated that while driving a yellow cab the defendant robbed him of $30.00, his watch, and then shot him in the abdomen, as the result of which he was hospitalized for 22 days. The testimony was not refuted or denied by the defendant.

Other testimony pertinent to this appeal is that the defendant is 22 years of age, unmarried but supports a child born out of wedlock by providing child support payments in the amount of $25.00 per week. The defendant had been somewhat steadily employed since 1965 and has no previous felony convictions but did serve six months in the Vandalia State Farm for driving a motor vehicle without a valid driver’s license and later served a term of three months imprisonment at the same institution for committing the crime of theft.

The only issue raised by the defendant in this appeal is that the sentence imposed is excessive and disproportionate to the offense and therefore should be reduced.

There is no question but what this court possesses the power to reduce a sentence. Such authority is specifically granted by Supreme Court Rule 615(b)(4). (Ill. Rev. Stat, ch. 110A, par. 615(b)(4).) Consequently in exercising or refusing to exercise this power we must look to the pronouncements made under this rule. In People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, our Supreme Court stated:

“Reviewing court’s authority to reduce sentences imposed by trial courts where circumstances warrant should be applied with considerable caution and circumspection, since trial judge ordinarily has superior opportunity in course of trial and hearing in aggravation and mitigation to make sound determination concerning punishment to be imposed than do appellate tribunals.”

So while we are specifically granted authority to reduce sentences imposed by trial courts, it is quite clear that we must exercise such power with caution and circumspection. People v. Poff, Ill.App.2d, 268 N.E.2d 58.

Seeking guidelines to assist us in the determination of the issue presented in this appeal, we encounter the very clear, concise and comprehensive recommendations set forth in People v. Buell, 120 Ill.App.2d 367, 256 N.E.2d 845, where the court stated:

“In imposing a sentence, the trial court has an obligation to the public as well as to the person found guilty of a crime. In addition, the sentence is significant to the institutional officials in their program of rehabilitation in connection with the incarceration of the convicted person. Thus, in sentencing, the court must consider the punishment warranted under the circumstances of the particular case, the protection of the public, and the potential for rehabilitation of the party being sentenced. The circumstances of the case include the nature of the offense, the attending circumstances, the character and propensities of tiie offender, his family, work record, past delinquencies, his potential for rehabilitation, and all other pertinent matters.”

Accepting the foregoing guidelines and recommendations we must determine their effect upon the case before us. We are cognizant of the fact that the defendant is only 22 years of age and has maintained a somewhat steady record of employment. While having been twice incarcerated in the Vandalia State Farm, the record is barren of any felony convictions other than this one before us on appeal. We cannot, however, ignore the fact that the defendant committed a crime which did cause great bodily harm and there is a serious question as to whether the victim of the aggravated battery did anything to provoke the defendants action.

We are also mindful of the fact that the probation officer submitted to the court a detailed report wherein it was recommended that the defendant be granted probation. However, subsequent to the filing of this report and prior to the conclusion of the hearing on aggravation and mitigation the defendant assaulted and injured a deputy sheriff of Kankakee County who had released the defendant from his cell for the purpose of permitting him to make a personal phone call. The defendant testified that this attack was provoked by remarks directed to him by the deputy sheriff. It appears to us unlikely that the very individual who would grant a favor to the defendant by releasing him from his cell and permitting him to use a telephone would couple such consideration with a vile epithet. What is material is that the attack by the defendant upon the deputy sheriff shows his penchant for violence.

While not raised in the defendant’s appeal brief, his counsel during oral argument before this court strongly urged that the trial judge when imposing sentence was prejudiced against the defendant as the result of the testimony of the witness Ludwig, who had been the victim of an armed robbery and had been shot during the course of the crime. The defendant was charged with the commission of this crime against Ludwig and the record discloses that the charge was dismissed by the State’s Attorney as the result of a negotiated understanding that the defendant would enter his plea of guilty in the case before us. No objection was made by the defendant as to the testimony of Ludwig during the hearing on aggravation and mitigation. While such testimony may not be the best practice in such hearings it was not objected to by the defendant and under the law of our state we cannot hold such testimony inadmissible. See People v. Popescue, 345 Ill. 142, 177 N.E. 739; People v. Riley, 376 Ill. 346, 33 N.E.2d 869.

A sentencing court is not confined to evidence showing guilt or bound by rules of evidence at trial but may look to facts of crime and search anywhere within reasonable bounds for other facts which tend to aggravate or mitigate offense, inquiring into general moral character of defendant, his mentality, his habits, his social environments, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit crime, his motivations, and his life, family, occupation and record. People v. Adkins, 41 Ill.2d 297, 242 N.E.2d 258.

It is clear from the record that the trial judge took into consideration all the evidence that was adduced in this case, including the report of the probation officer. The trial judge prior to sentencing made a comprehensive statement summarizing the evidence both favorable and unfavorable to the defendant which would guide him in arriving at what he deemed to be a proper sentence. It was the conclusion of the trial judge who was in the best position to observe the manner and demeanor of the defendant that he would in all probability commit another offense unless rehabilitated in the penitentiary and that the likelihood of such rehabilitation was dependent upon the length of the sentence, since it was necessary for the defendant to receive psychiatric, therapeutic and other related treatments pertaining to rehabilitation. It was the judgment of the court that the defendant be sentenced to a term of imprisonment of from seven to ten years. We can only conclude that the sentence imposed was proper under the totality of circumstances rule which was set forth in the case of People v. Barnes, 118 Ill.App.2d 128, 255 N.E.2d 18. The imposition of sentence is peculiarly within the discretion of the trial court and this discretion should not be interfered with unless it is clearly abused. (People v. Nordstrom, 75 Ill.App.2d 168, 219 N.E.2d 151; People v. Hanserd, 125 Ill.App.2d 465, 261 N.E.2d 317.) We find no such abuse and therefore under the circumstances of this case a reduction of sentence is not warranted and the judgment of the circuit court of Kankakee County is affirmed.

Judgment affirmed.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE DIXON

text:
    Elisa Pizano et al., Plaintiffs-Appellants, v. Aurora Trejo et al., Defendants-Appellees.
    (No. 70-151;
    Third District
    — November 5, 1971.

      Martin Katz, of Rock Island, and Dennis Fox, of Moline, for appellants.
    Robert J. Noe, of Moline, and Gerry M. Rinden, of Rock Island, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Actions were brought by guest passengers Pizano and VaUejo for personal injuries as a result of a head-on collision involving automobiles driven by Trejo and Walton, on October 11, 1967, on Route 6, approximately %0 mile east of Coal VaUey, Illinois, at about 11:00 A.M. Plaintiffs alleged injuries proximately caused by wilful and wanton misconduct of their host driver Trejo, and negligence of Walton, driver of the second car involved. The cases were consolidated for trial, along with an action by Trejo against Walton.

At the close of aH the evidence the trial court aHowed host driver Trejo’s motion for a directed verdict, denied Walton’s motion for directed verdict and allowed passengers motions for an instruction that neither was guilty of contributory negligence. The jury returned a verdict for Pizano for $976.30, for VaHejo for $1,514.75 (the exact amounts of their out of pocket expenses). The jury also found Walton not guilty as to the action of host driver Trejo. No appeal was taken as to the not guilty finding.

Judgment was entered on the verdicts. Post trial motions were denied and the guest passengers appealed. Walton has cross appealed.

Plaintiffs suggest that the trial court erred in directing a verdict in favor of Trejo and ask for a new trial against her. They further contend that their verdicts against Walton were inadequate as a matter of law and request a new trial on the question of damages only or in the alternative, that the verdicts are a compromise on the issue of liability, and the case be remanded for a new trial against Walton as to aH the issues.

Walton cross-appealed contending that the trial court erred in failing to direct a verdict in his favor; that there was error in ruling that neither plaintiff was guilty of contributing negligence; that the verdicts were a compromise and if a new trial is given it should be a new trial generally, that he was denied a fair trial by permitting two attorneys representing the same party to examine him under Section 60 and by restricting his attorney to one closing argument in response to six arguments by various plaintiffs.

The trial judge did not give his reasons in ruling upon the motions for directed verdicts. All parties have cited Pedrick v. Peoria & Eastern R.R. Co. 37 Ill.2d 494. Defendant Trejo also contends that plaintiff’s testimony constituted judicial admissions which barred recovery.

An examination of some of the testimony is required:

Plaintiff Elisa Pizano testified that she never saw Mrs. Trejo drive in any erratic manner; that Mrs. Trejo was not going too fast and that she never saw the Walton car prior to impact. She further testified that she was on the right side of the front seat and held Carmen, the 3 year old daughter of the driver on her lap. Before the accident she was entertaining Carmen. She heard Marie Trejo say “Mother” and looked at the highway when the collision happened, she didn’t see the other car involved, didn’t know what lane Mrs. Trejo was in nor her speed. “I was playing with Carmen and my attention was directed to Carmen, so I had no occasion to notice the speed or length. I wasn’t watching the road because I was playing with the baby”.

Plaintiff Vallejo testified that she saw the Walton car come up a knoll a block and a half or two away. Mrs. Trejo was going 20-25 miles per hour. Waltons speed was 70-75 miles per hour. Mrs. Trejo was a foot or so over the center line when she first saw the Walton car. He was in his right lane. Her mother moved all the way to the right, then to the left, then going back to the right and the accident happened in the middle of the road. Walton went to his left, then to his right. At the time of the accident the Trejo car was partially in each lane. Walton was moving pretty fast and his car was a little over the center line.

Defendant Samuel Walton testified that he was going 56 miles per hour when he first saw Mrs. Trejo’s automobile about three-quarters of a mile away, that he thought she was going 75 miles per hour, that at first he couldn’t tell which lane of traffic she was in, that he realized when she was about a half mile away that she was in his lane, that he never did see her turn back to her own lane, that she never seemed to reduce speed, that to avoid her he applied his brakes, slowed his car down to 35-40 miles per hour and started to pull off to the right but the shoulder was muddy and he didn’t remember anything after that.

Independent eye witness, Charles Wiedenhoeft, testified he was traveling 45-50 miles per hour when passed by Walton who was then going 10 miles per hour faster and who pulled back into west bound lane in an orderly manner. He saw the Trejo car occupying the wrong lane from a distance of 1000 to 2000 feet ahead of him. The impact occurred in the west bound lane. He saw the east bound car travel about 200 yards in the wrong lane until the time of impact. There was no indication that the Walton car slowed before impact. Right before the collision both cars made a swerving motion. He was a block away when they collided. He did not remember seeing the Trejo car ever get back into its own lane from the time he saw it until the collision.

Trooper Donald Burgess testified that he investigated the accident. The road is 21 feet 11 inches wide. The Trejo car was completely across the west bound lane with the rear extending 2 feet 4 inches off the north shoulder. The Walton car was straddling the center line with 1 feet 2 inches of the car in the east bound lane. The Trejo car left two sets of skid marks 53 feet from the left tire and 32 feet 5 inches from the right tire. It was 17 feet 11 inches from the northernmost skid mark of the Trejo car to the south edge of the highway. (Note: Center line of road is 10' IIVY' from south edge. So somewhere within 53 feet of impact the Trejo left tire was &IIY2" north of center line.) Left front of each car was extensively damaged.

Of course a party may, by his own testimony, conclusively bar his claim or his defense. But a determination that he has done so depends upon an evaluation of all of his testimony, and not just a part of it. It depends, too, upon an appraisal of his testimony in the light of the testimony of other witnesses and a consideration of their respective opportunities to observe the facts about which they testify. McCormick v. Haan, 20 Ill.2d 75; Hanson v. Darby, 100 Ill.App.2d 339.

Applying the aforesaid rule to the testimony of Pizano and that of Vallejo, we find no binding judicial admissions which made it the duty of the trial court to direct a verdict in favor of the host driver.

When we view all the evidence in its aspect most favorable to plaintiffs we are unable to say that it overwhelmingly favors Trejo so that no contrary verdict based on that evidence could ever stand. (Pedrick test). There is strong evidence here that defendant Trejo drove on a state highway on the wrong side of the road, in the face of clearly visible oncoming traffic for a distance of not less than 200 yards prior to collision. Such conduct in our opinion raised a question of fact for the jury. For the reasons assigned the judgment of the trial court is reversed as to defendant Aurora Trejo and a new trial given plaintiffs.

Turning now to the case against Samuel Walton, we believe the trial court was correct in denying the motion for directed verdict. There was substantial testimony that Walton never slowed down before impact and never took evasive action.

We believe that the trial court was in error in ruling that neither plaintiff was guilty of contributory negligence as a matter of law. One riding in a motor vehicle driven by another has the right to assume that the driver will exercise proper care and caution, until he has notice to the contrary. He is entitled to repose confidence in the drivers operation of the vehicle and to assume that he is alert to other traffic until it becomes apparent to one in the exercise of due care that the driver is inattentive. Acceptance of the driver’s manner of operating the vehicle is not ordinarily contributory negligence unless the driver’s fault is so obvious as to demand effort on the guest’s part to abate the danger. At precisely what point the duty arises to change from passive reliance to active protest is largely a factual question to be properly decided by the jury on the basis of available facts and circumstances. 8 Am.Jur.2d, Automobile and Highway Traffic Sec. 527.

The plaintiffs were front seat passengers with an opportunity to see and to be heard and it is not beyond the range of possibility that plaintiffs could have protested or voiced a warning which would have prevented the accident. We are not saying they should have done so, we do say it is a matter for the jury to decide. For the foregoing reasons we reverse the judgment of the trial court and order a new trial on all issues between plaintiffs and defendant Walton.

Since Aurora Trejo is no longer a party plaintiff and new trials have been ordered it is not necessary to discuss other issues raised.

Reversed and remanded.

ALLOY, P. J., and STOUDER, J„ concur.


author: Mr. JUSTICE SCOTT.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mose Killebrew, Defendant-Appellant.
    (No. 71-109;
    Third District
    — November 5, 1971.

      Bruce Stratton, of Defender Project, of Ottawa, for appeUant.
    Edward P. Drolet, State’s Attorney of Kankakee, for the People.
   Opinion by

Mr. JUSTICE SCOTT.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alton Raymond Smith a/k/a Alton Ray Smith a/k/a Alton R. Smith, Defendant-Appellant.
    (No. 71-164;
    Third District
    — November 15, 1971.
    Alton Raymond Smith, pro se.

    William J. Scott, Attorney General, of Springfield, and James N. De-Wulf, State’s Attorney, of Rock Island, (Robert Schearer, Fred G. Leach, and Thomas J. Immel, Assistant Attorneys General, of counsel,) for the People.
   PER CURIAM:

The defendant Alton Raymond Smith, following a jury trial in Rock Island County, was convicted of robbery and sentenced to a term of from five to fifteen years in the Illinois State Penitentiary. He appealed to this Court and the conviction was affirmed in People v. Smith, Third District, 1970 (Ill.App.2d), 254 N.E.2d 232.

It appears that prior to the ruling of this Court on his appeal, defendant filed a pro se petition for relief under the Post Conviction Hearing Act. In the post conviction proceeding defendant did not request appointed counsel. In his trial in the circuit court he had first been represented by the public defender, and then by competent privately-retained counsel. On appeal he was represented by competent counsel, also.

In the post conviction petition which was filed by the defendant, it was alleged that the prosecutor made comment in argument to the jury that defendant had not testified in explanation of where the approximately $180 had come from, which was found in his possession. A motion to dismiss the petition was filed by the State on August 3, 1970, on the ground that since an appeal was pending, the alleged improper argmnent by the prosecutor could be raised in that appeal and it was not proper post conviction subject matter. Defendant’s petition was dismissed without an evidentiary hearing on August 13, 1970. The Appellate Court decision in this Court affirming the judgment of the trial court on defendant’s appeal was filed on November 18, 1970.

Following dismissal of the post-conviction petition the Supreme Court of this State allowed petitioner’s request for leave to proceed as a poor person in the appeal from the post conviction ruling and also allowed defendant to proceed pro se. Defendant was likewise granted leave to dispense with the filing of an abstract of record. Thereafter, in October 1971, the cause was transferred to this Court. On appeal now, defendant contends that the State was required to supply him with an adequate record of his jury trial including the argument made by the State’s Attorney in such trial. He contends that the trial court, in the post conviction proceeding, improperly denied his petition.

It appears from the record that no transcription was made of the final arguments in the cause since none had been requested. The allegation that comments referred to had been made in the final argument, (to the effect that defendant had refused to testify) was not supported by affidavits or other evidence as required under the Post Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 2; People v. Curtis, 41 Ill.2d 147.)

Defendant had ample opportunity to proceed under the Supreme Court Rule 323(c) and, in absence of a verbatim transcript of the prosecutor’s final argument. Defendant could have undertaken reconstruction of the proceedings from the best available sources. The results could have been presented for certification by the trial court. We also note that no effort was made to raise this issue in the previous appeal proceedings in this Court.

In view of the record as made in the post conviction proceeding, we must conclude that the trial court properly dismissed the petition. The judgment of the circuit court of Rock Island County will, therefore be affirmed.

Judgment affirmed.


text:
    Lloyd C. Helle, Highway Commissioner for Lee Township Road District, Plaintiff-Appellee, v. Billy G. Brush, Defendant-Appellant.
    (No. 71-87;
    Third District
    — November 17, 1971.

      James J. Elson, of Canton, for appellant.
    Froehling & Taylor, of Canton, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court;

Plaintiff, Lloyd C. Helle as Commissioner of Highways of Lee Township, Fulton County, Illinois, filed a complaint on May 7, 1969, alleging that plaintiff was operating a road grader on a rural road in the township on June 28, 1968. Defendant Billy G. Brush was driving his automobile on the same road that day in the opposite direction and there was a collision. Plaintiff’s complaint sought judgment against defendant for $1,427.20 for property damage.

Defendant answered the complaint and concurrently on June 5, 1969, filed a counterclaim alleging extensive personal injuries as a result of the collision on June 28, 1968, and sought damage from the plaintiff of $150,000.00. The counter claim failed to allege compliance with the notice provisions of section 8 — 102 of Chapter 85, Ill. Rev. Stat. 1967.

On June 6,1969, plaintiff answered the counterclaim by filing a general denial. By leave of court, plaintiff withdrew his answer and on May 12, 1971, filed a motion to dismiss the counterclaim on the ground that the notice of injury required by Section 8 — 102 of the Tort Immunity Act had not in fact been given. The Court allowed plaintiff’s motion and dismissed the counterclaim with prejudice.

The sole issue presented to us for decision is whether the trial court was correct in holding the failure to give notice as required by the applicable statute barred the counterclaim.

The parties agree that any person who wishes to file a tort complaint against a local public entity must give notice of injury within six months from the date the cause of action occurred. Appellant contends that such compliance is necessary only to commence an action and that failure to give notice does not strip him of his right to counterclaim. The question then is, whether one may assert by counterclaim that which he would be barred from asserting if he brought a separate independent suit.

A counterclaim is in substance a complaint filed by defendant. It is not a defense on the merits. Busse v. Muller, 295 Ill.App. 101. It is an independent cause of action and must be complete within itself. Wilson v. Tromly, 404 Ill. 307. In short a counterclaim stands on the same footing, and is to be tested by the same rules, as if it were an independent action.

Appellant next contends that since the local public entity commenced the action it obviously had knowledge of all pertinent facts so that the purpose of the notice was satisfied. This contention was first disposed of in Sappington v. Sparta Municipal Hospital Dist., 106 Ill.App.2d 255 where the Court said “This argument sounds good until it is analyzed. The giving of a formal notice permits the defendant time to attempt to settle the case before suit is filed. It also lets them know they are about to be sued so they can prepare their defense. In these days when defendants are often insured, the notice requires the defendant to notify his insurance carrier. None of these things are accomplished without the formal notice.”

Appellant next contends that when plaintiff first answered the counterclaim by a general denial he waived the right to assert the defense of non-compliance with section 8 — 102 in a motion to dismiss. Cases cited by appellant to support this theory merely hold that affirmative defenses must be raised by the pleadings and the failure to so raise them is deemed a waiver of the defense. The Civil Practice Act authorizes the allowance of an amendment “in any matter, either of form or substance”, in any pleading, “which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand”. (Ill. Rev. Stat., ch. 110, par. 46(1).) The greatest liberality should be applied in allowing these amendments. (Jilek v. Missouri Pac. R. Co., 13 Ill.App.2d 518.) See also Davidson v. Olivia, 18 Ill.App.2d 149 where it was held that the trial court did not abuse discretion in permitting defendants to withdraw answers and file motions to dismiss on ground action was barred by Statute of Limitations. Numerous decisions have held that the granting or denying of an amendment to the pleadings is a matter for the discretion of the Trial Court whose ruling will not be disturbed on review unless there is a showing of abuse of that discretion. (Lang v. Board of Ed., 109 Ill.App.2d 195.) We cannot say the Trial Court abused its discretion in this matter.

The last argument raised by defendant is that S.H.A. ch. 83, Sec. 18 should control. “A defendant may plead a set-off or counterclaim barred by the statute of limitation * * * to any such action, the cause of which was owned by the plaintiff * 5 before such set-off or counterclaim was so barred, * * #.”

The notice requirement of section 8 — 102 of the Tort Immunity Act has been held to be a condition precedent to the right to sue, being a matter of substance and not merely procedural. (Schear v. City of Highland Park, 104 Ill.App.2d 285, at 289.) By way of contrast a true Statute of Limitations is only considered as being procedural in its application. 51 Am.Jur.2d, Limitations of Actions, sec. 21.

We are required to hold that the provision of the Limitations Act creating an exception to limitation periods in the event of a set-off or counterclaim, have no application to the Notice requirement of the Tort Immunity Act.

We are of the opinion that the trial court was correct in holding the failure to give notice barred the counterclaim.

Judgment affirmed.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Le Roy Myles, Defendant-Appellant.
    (No. 71-21;
    Third District
    — November 22, 1971.

      Rehearing denied December 15,1971.

      John L. Barton, of Defender Project, of Ottawa, for appellant.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Richard LeRoy Myles, following a jury trial in the Rock Island County Circuit Court, was found guilty of burglary and theft occurring on December 3, 1969. Defendant Myles was thereafter sentenced to a term of five to fifteen years for burglary and from one to three years for theft. The sentences were designated to run concurrently

The record shows that on Christmas Day, 1969, while police were investigating a tavern burglary, the officers found the back door of the tavern ajar and there found defendant Myles in his Thunderbird automobile directly behind the tavern. They arrested defendant and immediately removed from his automobile burglary tools, whiskey, cigarets, and change. The whiskey, cigarets and change met the description of items presumably taken from the tavern. Defendant was taken into custody and placed in jail and his automobile was taken to the police parking lot.

On the following morning, December 26, 1969, a police detective, who had just reported for duty, examined the outside of the trunk of the automobile and found the trunk lid approximately 2 inches ajar although it was still locked. It was so situated that the detective could view articles inside the trunk through the opening between the trunk and the remainder of the automobile. The officer then obtained a search warrant on a complaint which specified that defendant was unlawfully in possession of “burglary tools, whiskey, cigarets, and change * * *” taken in a burglary at the tavern. The warrant was issued at 11:15 A.M. and at approximately 1:00 P.M., the detective pried open the trunk and removed, among other items, burglary tools, old coins, and an adding machine. The adding machine bore no outward identification, but when another officer recafied that such a machine had been reported as taken in a December 3 theft, the searching officer had the machine dismantled and thereby obtained the serial number. He was able through the manufacturer to link the machine to one which was reported stolen on December 3. Defendant was then indicted for the December 3 burglary and theft. After the trial, in the instant case, in which there was testimony showing that the adding machine and old coins were in possession of defendant and that the adding machine and old coins were taken from the premises burglarized on December 3, defendant was convicted.

On appeal in this Court, defendant Myles asserts that items admitted into evidence of the items which were seized, i.e., the adding machine and the old coins, which linked him circumstantiaUy to the crime committed on December 3, should have been suppressed in accordance with his pretrial motion, because they were obtained as a result of a search and seizure that was improper since the items seized were not specificaUy described in the search warrant. He also contends that the only incriminating evidence in the case was circumstantial and that, therefore, the evidence was insufficient to support a finding that he was guilty of the crime beyond a reasonable doubt. AppeUant also contends that the crime of theft arose from the same conduct or transaction as the crime of burglary and that, therefore, the court was in error in entering two separate judgments and sentencing him separately for each crime.

Since the State concurs as to the question of the separate sentences and judgments it is unnecessary that we discuss this issue in detail. We have had the same problem before us in a number of cases and it is obvious that the two offenses of burglary and theft of the premises on December 3 resulted from the same conduct and, therefore, should not have involved two convictions and two sentences. As we have indicated in previous cases, following the precedent of Illinois Revised Statutes 1969, ch. 38 par. 1 — 7 (m) to the effect that if the offenses resulted from the same conduct or transaction defendant could not be sentenced on both charges either concurrently or consecutively. In People v. Stevenson, 107 Ill.App.2d 441, 246 N.E.2d 309, defendant was also convicted of theft and burglary and the court imposed separate sentences for each offense. Since the two offenses arose, as did the offenses in the case before us, from the same conduct and transaction, the reviewing court reversed the conviction for the lesser offense. Burglary, being the more serious offense, is the one upon which the conviction and sentence should stand and the conviction and sentence for theft should be reversed.

The issue of major concern in the cause before us involves a consideration as to whether the motion to suppress the evidence seized pursuant to the warrant was improperly denied. It is obvious from the record that the police had reasonable grounds to believe that defendant had probably committed an offense at the time they arrested him. Obviously, the arrest was valid. We have previously considered an appeal in the case involving the burglary on Christmas Day and such conviction was affirmed (People v. Myles (Ill.App.2d), 271 N.E.2d 62.) Since a period of more than 14 hours intervened between the arrest and the search of the automobile pursuant to warrant, it is apparent that we have under consideration, not the question of property seized as an incident to arrest, but whether the seizure was lawful pursuant to the search warrant which was issued in this case.

The search warrant was properly issued upon a complaint showing . probable cause. It particularly described the objects to be searched for and seized. There is nothing in the warrant or in the procedure for obtaining the warrant, or in the procedure by the police, which indicated that the search was general and exploratory or in any manner inconsistent with the apparent objective of seizing aU property involved in the burglary then under investigation.

The basic issue is whether the defendant was entitled to have the adding machine and the old coins suppressed as evidence because they wre not specfficaUy described in the warrant. The motion to suppress is based upon IHinois Revised Statutes 1969, ch. 38 par. 114 — 12(a) where it is provided that a defendant may move the court for return of property and to suppress as evidence anything obtained where the evidence seized is not that described in the warrant. The burden of proving that the search and seizure were unlawful is placed upon the defendant (Section 114 — 12(b).) There is nothing in the statute itself which requires that the evidence seized be related to the offense in connection with which the warrant was issued. We believe that the words “burglary tools" and “change” constituted a sufficiently accurate description of the burglary tools actuaUy taken and of the old coins. The description was adequate as to these items. There was nothing in the warrant, however, which described tire adding machine.

We, therefore, have two categories for consideration, (1) assuming “change” as describing the coins seized, the seizure of certain described property as directed in the search warrant, which property is later found to be fruits of a prior crime, and (2) evidence which was not particularly described in the search warrant but later found to be fruits of a prior crime. In the first category would be the old coins and in the second category, the adding machine. The issue is whether or not the property must be specifically described in the search warrant, and, also, whether property not described in the search warrant but validly obtained as a result of a valid search warrant is required to be suppressed. Precedents in the Supreme Court and other Federal Courts as well as in the State of Illinois indicate that the motion to suppress was properly denied irrespective of the category in which we place the evidence under consideration.

A recent case which gave considerable attention to this issue is Gurleski v. U.S. 405 Fed.2d 253. In that case the United States Circuit Court of Appeals had before it a case in which (during a search under a valid search warrant) items not described in the warrant were discovered and later were presented in evidence as against defendant on another charge. The warrant in that case specified certain enumerated items, but the items which were seized and under consideration were not specifically listed in the warrant. It was indicated in the Gurleski case, as in many other cases, that the Fourth Amendment of the United States Constitution prohibits unreasonable search and seizure. The same protection is afforded under the various state constitutions including that of the State of Illinois. Warrants for search are issued only upon probable cause and are required to particularly describe the place to be searched and the persons or things to be seized.

It was said in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, that where the warrant describes an article to be seized, nothing is left to the discretion of the officer executing the warrant. Later cases pointed out that if this broad language were rigidly applied in every case, it is obvious tihat there could never be a valid seizure of anything not described in the search warrant. In Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, the court permitted the introduction of evidence not described in the warrant but seized in searches of the type involved in the case before us. In the Harris case, the defendant was convicted of unlawful possession, concealment and alteration of Selective Service documents. The FBI had a warrant to arrest defendant in that case for a mail fraud violation and, in the process of a search incident to that arrest, discovered the incriminating Selective Service documents relating to an entirely different offense. The conviction was upheld by the U.S. Supreme Court. The court stated that the search was not a general exploration but was specifically directed to a search for the means and instrumentalities by which the crime charged had been committed. The agents acted in good faith and did nothing inconsistent with their declared purpose. As noted by the U.S. Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, the search must be one directed in good faith toward the object specified in the warrant and must not be a general exploratory search through which the officers merely hope to discover evidence of some wrongdoing.

In Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, where a search was made incident to an administrative arrest prior to deportation and resulted in the discovery of objects leading to conviction for espionage, the comt specifically found that there was no logical or constitutional reason, in absence of any showing of unreasonableness, why the fruits of such discovery should not be admissible evidence. Justice Frankfurter in that case said specifically, “When an article subject to lawful seizure properly comes into an officers possession in the course of a lawful search, it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.”

The courts have departed from the strict Marrón doctrine as shown by both Harris and Abel and have permitted the introduction in evidence of articles found in the course of a lawful search which were not in fact described in the warrant. In United States v. Eisner, 297 Fed.2d 595, 597, the defendant was convicted of receiving and concealing stolen fur garments. In that case the warrant described certain furs which were not found in defendants automobile but other furs were in fact seized. The court upheld the search and seizure, and stated that “probable cause to search the automobile existed, regardless of what the search developed.” In Seymour v. United States, 369 Fed.2d 825, 827, the court recognized the strong sanctions of the Fourth Amendment, but specifically stated that notwithstanding the constitutional prohibition, the courts have apparently recognized the exception to the requirements of specfic description in the search warrant. The court indicated that the exception is dictated by the practicalities of a particular situation where in the course of a lawful search pursuant to a lawful arrest, or the execution of a valid search warrant, the officer uncovers evidence of another crime.

In our own State, in People v. Robinson, 40 Ill.2d 453, 240 N.E.2d 630, the Illinois Supreme Court specifically upheld the denial by a trial court of a motion to suppress, where the search was made of defendant’s automobile for the purpose of finding a weapon used by defendant in threatening another and such search led to the discovery of a check taken in a robbery, for which the defendant was later prosecuted. The court determined that the search was reasonable and was not unlawfully exploratory. The search did in fact produce a check which linked defendant to an offense other than the one under investigation. The Illinois Supreme Court in that case quoted with approval the statement of Justice Frankfurter in the Abel case (set forth above) to the effect that when an article subject to lawful seizure properly comes into the officer’s possession in the course of a lawful search, it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.

It was apparent, therefore, that motion to suppress was properly denied. The search in the instant case was a reasonable one and not exploratory in nature. While the adding machine was not described in the warrant, it is obvious that once it had been discovered by the officer and taken to the station, the officer would have been derelict in his duties if he did not make an effort to ascertain whether the particular item had been taken in a prior burglary and theft, when one of the officers reported that an adding machine had been taken in such prior burglary and theft (People v. Moore, 35 Ill.2d 399, 220 N.E.2d 443). The same may be said for the coins taken in the search. We note, in passing, that even if the adding machine had been suppressed there was sufficient evidence to convict defendant of the burglary and theft based on the coins which were taken under the warrant.

It is contended also by defendant that the evidence of recent unexplained possession did not exclude every reasonable theory of innocence of burglary. It is true that the evidence was entirely circumstantial. Defendant was found to be in possession of property taken during a recent burglary. The jury was properly instructed in defining circumstantial evidence. Proof of the crime of burglary may rest entirely on circumstantial evidence (People v. Marino, 95 Ill.App.2d 369, 238 N.E.2d 245). Since the jury verdict is not contrary to the weight of the evidence or so unsatisfactory as to cause a reasonable doubt of guilt, we would not be justified in reversing on the basis of the weight of evidence or on the theory advanced by defendant. The conviction of defendant was predicated on the strong inference of guilt from possession of recently stolen property.

For the reasons stated in this opinion, the judgment and sentence as to defendant for the crime of burglary is affirmed but the judgment and sentence for theft is reversed.

Affirmed in part and reversed in part.

STOUDER and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Leggett et al., Defendants-Appellants.
    (No. 70-135;
    Third District
    — November 23, 1971.

      Brace Stratton, of Defender Project, of Ottawa, for appellants.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendants Larry Leggett, Larry McCarty and William Henry McCarty were convicted of a charge of Armed Robbery and also of a charge of Armed Violence in a jury trial in the Circuit Court of Kankakee County on February 6, 1970. They were sentenced to terms respectively of 10 to 14 years for Larry Leggett, 9 to 12 years for Larry McCarty, and 8 to 12 years for William McCarty.

Defendants entered the building of the Kankakee County Catholic Credit Union wearing masks and using two pistols. One defendant accosted the manager with a pistol and demanded money. One employee fell to the floor in fear and the other was ordered to he on the floor. The employees were then forced into the vault. Prior thereto a sum of $5,340 in money and a wahet were taken from the manager and a watch and ring were pulled from the manager’s arm and hand. Defendants, after forcing the employees into the vault, closed the vault door. They were apprehended at the credit union office by policemen who arrived when the alarm system was activated as the robbery began.

The charge of Armed Robbery was to the effect that money had been taken from the presence of the manager, and, also, tire watch and ring had been taken from the manager through an act of Armed Violence.

Defendants contend in this Court that the two crimes for which they were convicted arose from the same conduct and that judgment properly could be entered only with respect to the more serious offense. Only one sentence was imposed on each defendant. There were convictions on both charges, i.e., Armed Robbery and Armed Violence. There is no serious disagreement as between the defendant and the State that the Armed Robbery and Armed Violence for which defendants were convicted were part of the same “conduct” referred to in the Illinois Statutes prohibiting separate sentences for such offenses (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(m)). Defendants, however, contend that the fact that only one sentence was imposed stiff places defendants in a position of disadvantage and that the judgments of conviction of Armed Violence, which is the lesser of the crimes, should be reversed. The State contends that since there is only one sentence, the cases and the section of the statute referred to do not require any action by the court because no separate sentence has been imposed on the lesser of the two crimes arising from the same conduct, either concurrently or consecutively.

People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316, is a case referred to in the Committee Comments in the Illinois Annotated Statutes to Section 1 — 7(m) of the Illinois Criminal Code to which we have referred. In the Schlenger case there were two sentences, one for each of the two offenses. These sentences were imposed to run concurrently. It was argued in that case by the State that since defendant would only serve one sentence, any error would not be prejudicial. Defendant, however, argued that the mere fact of the imposition of two sentences, even though they were concurrent, would prejudice him in his application for parole. The same argument is made in the case before us where defendants contend that their opportunity for parole would be prejudiced because two separate convictions would continue to appear of record.

In the Schlenger case as well as in other cases treating this particular issue (including cases decided by this Court), we have consistently reversed the conviction as well as the sentence where there was a sentence imposed to run concurrently if the crimes resulted from the same “conduct.” We believe that it is consistent to set aside and reverse the conviction for the lesser crime where there is a conviction and judgment on the more serious crime and a sentence has been imposed. We feel the rationale, however, of this principle should be stated in a manner which would prevent abuse or a miscarriage of justice. We believe the rule is and should be that the conviction and sentence for the lesser of the crimes arising from the same conduct should result in a reversal of both the conviction and the sentence imposed as a result of the lesser crime, provided, however, that a conviction and sentence imposed as to the greater crime are valid and are sustained. Since this is the situation in the present case we believe that the conviction for Armed Violence should be reversed even though there is a single sentence involved, and that the sentence imposed should persist as to the conviction for Armed Robbery which should be affirmed.

Defendants also contend that the sentences imposed on them in the cause before us are excessive and should be reduced. As noted from the recital of facts in this case, the crime involved was a serious one and consisted of a daring robbery with intimidation and threatening conduct as to the manager and employees of the credit union. Larry Leggett, who was sentenced to a term of 10 to 14 years had a record of a prior conviction. The sentence of 9 to 12 years imposed upon Larry McCarty has a minimum of one year greater than the 8 to 12 year sentence imposed upon William McCarty. The one year lower minimum sentence was based on the fact that William McCarty had served in the armed forces for a period of three years. The sentences imposed were consistent with the applicable statutes. We have frequently stated that the propriety of imposing the sentences is normally an issue on which the trial court is given a wide discretion (People v. Hanserd, 125 Ill.App.2d 465, 261 N.E.2d 317.) We have also indicated that the power to modify sentences which is vested in this Court (Illinois Revised Statutes 1969, ch. 38, pars. 121 — 9 (b) (4) ), should be exercised with caution. Normally, the trial court is in best position to determine the circumstances, to weight credibility, and to evaluate the record made at the hearing in aggravation and mitigation (People v. Taylor, 33 Ill.2d 417, affmd. after remand, 40 Ill.2d 569, 241 N.E.2d 409.) In view of the record in this cause, therefore, we do not believe that we should act to modify the sentences imposed upon defendants.

The judgment entered upon the conviction of defendants on the charge of Armed Violence is reversed. The judgment of conviction of Armed Robbery and the sentences imposed as a result thereof are affirmed.

Reversed in part and affirmed in part.

STOUDER and SCOTT, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Lee Johnson, Defendant-Appellant.
    (No. 70-171;
    Third District
    — November 23, 1971.

      John L. Barton, of Defender Project, of Ottawa, for appellant.
    Roland Litterst, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Defendant George Lee Johnson has appealed from a judgment and sentence of the Circuit Court of Peoria County entered on a verdict of a jury finding defendant guilty of burglary.

On October 27, 1969 between 10:30 A.M. and 11:30 A.M. while Jack Schubert and his wife were away from their home, Mrs. Lucille Mabel Mary Pratt, the Schubert’s next door neighbor, was talking to a friend on the telephone. The room where the telephone was located is next to the Schubert’s side door and the view from there was very good. While talking, Mrs. Pratt observed a man standing outside the side door of the Schubert home. She watched him creep into the Schubert residence. At that time she did not see his face but described him as a tall, slender negro man wearing a brown jacket and billed cap. She told her friend she would call her back and she then called the police.

The first officer on the scene, one Delbert Pickel, stopped at Mrs. Pratt’s house. Officers Pantages and Knight arrived and went to the front door of the Schubert residence while Officer Pickel went to the side door. Officer Knight tried the front door and it was locked. He looked through the glass and observed the defendant carrying a white jewel case walking toward the side door. Upon seeing Officer Knight, the defendant turned and ran back through the living room. The jewel box he had been carrying was found sitting on the floor of an inside stairway by the side entrance. Defendant was arrested inside the house. He was frisked for weapons and given his Miranda warnings.

Defendant was taken to a waiting squad car where Mrs. Pratt observed the same man she had seen enter the house. Defendant was then taken to the police station where he was booked and searched. The defendant took out of his pockets two men’s wrist watches. These watches were identified by Jack Schubert as his and prior to the break-in had been in a drawer in the Schubert’s bedroom dresser. Defendant’s car was found parked a block from the scene immediately after the occurrence.

At the trial for the offenses of burglary and theft, the defendant was positively identified as the man arrested within the house by Officers Pickel, Pantages and Knight. The defendant did not testify nor did he present any witnesses in his behalf. At the hearing on aggravation and mitigation, defendant’s prior record was admitted into evidence. He was sentenced to a term of not less than three years or more than fifteen years for the offense of burglary.

Early in the trial the Mrs. Pratt, who watched the defendant break into the Schubert residence during the broad daylight, referred to the transgressor as Mr. Johnson. The defendant objected to that characterization on the ground that Mrs. Pratt did not know his name. The State felt constrained after that challenge to connect the defendant with the name George Lee Johnson. The State then called the three police officers and interrogated them as the Miranda warnings. (Required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694.) At no time did defendant’s attorney make a specific objection other than to request a time sequence (he was sustained) and to require a showing that the warnings were understood by defendant (he was sustained again). When Sgt. Robert Walker, the booking officer, was called to the stand he testified that he had given the Miranda warnings and asked if the defendant understood his rights.

Defendant made no objection at that time and witness stated “as far as I can remember, Mr. Johnson said he wanted his attorney and he didn’t want to talk at that time.” There was no motion to strike by defendant. The defendant contends that the admission of this testimony by the police officers was prejudicial error, citing People v. Lampson (1970), 129 Ill.App.2d 72.

An Appellate Court generally will not consider any error which counsel for accused could have called, but did not call, to the attention of the trial court when such error could have been avoided or corrected by the trial court. An exception to the general rule exists in case of material defects which are apparent on the face of the record and which clearly deprive accused of a substantial right. Supreme Court Rule 615 (Ill. Rev. Stat. 1969, ch. 110A, par. 615(a) ) provides “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Rule 615(a) embraces the philosophy that a defendant is entitled to a fair criminal trial, and if prejudicial errors occur to the extent that his substantial rights are violated, then a reviewing court may consider such assignments of error even though no objection was made in the trial court.

However, errors even of a constitutional nature may be regarded as harmless and not requiring reversal.

Before it can be said that a federal constitutional error can be held harmless a reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705.

Applying the foregoing standard, we have no doubt that the error was harmless. From the evidence in this record we are able to say, beyond a reasonable doubt, that the testimony as to the Miranda warnings did not contribute to the finding of guilty.

Defendant also contends that the maximum term of fifteen years was excessive and should be reduced. At the hearing on aggravation and mitigation, the State introduced records indicating a conviction in August, 1960 of the charges of burglary and theft wherein the defendant was sentenced from two to ten years which he commenced to serve on August 22, 1960, and was released in April, 1967. The wide range chosen by the court between the relatively light minimum sentence of three years and the maximum sentence of fifteen years was selected within the framework of a reasoned and humane consideration of the proper balance between the protection of society and the rehabilitation potential of the defendant. The Court, in effect, concluded that the parole board could best perform its function of predicting the degree of rehabilitation of defendant after the minimum sentence. So conceived, the penalty was not a departure from the fundamental law and its spirit and purpose. People v. McElroy, 125 Ill.App.2d 237, 239.

The judgment below is affirmed.

Judgment affirmed.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. JUSTICE ALLOY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Denning, Defendant-Appellant.
    (No. 71-93;
    Third District
    — November 23, 1971.
    Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Patrick Ward, Assistant State’s Attorney, of Morrison, for the People.
   Opinion by

Mr. JUSTICE ALLOY.