author: MR. JUSTICE CLARK

text:
    (No. 51646.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CURTIS J. BROWNELL, Appellant.

      Opinion filed March 21, 1980.

    Rehearing denied May 29, 1980.

      Mary Robinson, Deputy Defender, and Mark Schuster, Assistant Defender, of the Office of the State Appellate Defender, of Elgin (Robert Davison, Martin Carlson, Richard Cunningham, Verlin Meinz, and Charles M. Schiedel, of counsel), for the appellant.
    William J. Scott, Attorney General, of Springfield, and John’s H. Maville, State’s Attorney, of Belvidere (Donald B. Mackay, Melbourne A. Noel, Jr., and Stuart H. Shiftman, Assistant Attorneys General, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Aaron L. Meyers, and John Thomas Moran, Assistant Public Defenders, of counsel), amicus curiae.

   MR. JUSTICE CLARK

delivered the opinion of the court:

In a five-count indictment the defendant, Curtis J. Brownell, was charged with the murder, aggravated kidnapping and rape of Louise M. Betts. Count I charged that the defendant “committed the offense of murder, in that he, without lawful justification and with the intent to kill Louise M. Betts, strangled” her and thereby caused her death. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1).) Count II charged that the defendant committed murder by strangling Louise M. Betts, knowing that “such act created a strong probability of death or great bodily harm.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(2).) Count III charged the defendant with felony murder in that he killed the decedent while attempting or committing the forcible felony of rape (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(3)). Count IV charged the defendant with committing the offense “of Aggravated Kidnaping, in that he, in committing the offense of kidnaping, in violation of Illinois Revised Statutes, chapter thirty-eight, section 10 — 1(a)(2), knowingly and secretly confined Louise M. Betts against her will and inflicted another felony, to wit: Rape, upon her.” Count V charged that the defendant “committed the offense of Rape, in that he, a male person of the age of 14 years and upwards, had sexual intercourse with Louise M. Betts, a female not his wife, by force and against her will.” Ill. Rev. Stat. 1977, ch. 38, par. 11 — 1(a).

On September 13, 1978, after a bench trial, the defendant was found guilty of counts I, III, IV, and V by the circuit court of Boone County. Count II was dismissed on the motion of the State. The judgment of conviction under count III was subsequently vacated. A final judgment of conviction was entered as to counts I, IV and V.

The State requested a sentencing hearing for the purpose of imposing the death penalty pursuant to section 9 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d)). The defendant waived a jury proceeding and elected to be sentenced by the court. The court sentenced the defendant to two concurrent terms of 30 to 90 years in the penitentiary for the offenses of aggravated kidnapping and rape. The court found that based on the evidence adduced at trial two aggravating factors had been established — that the murdered individual was killed in the course of two other felonies, aggravated kidnapping and rape (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(6)), and that the murdered individual was an eyewitness against the defendant (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(7)). After hearing evidence in aggravation and mitigation, the court found that the State had proved the two aggravating factors beyond a reasonable doubt but that the defendant had not established any mitigating factors sufficient to preclude the imposition of the death sentence. The court then sentenced the defendant to death for the offense of murder. The court set November 5, 1979, as the date for the execution of the sentence of death. The sentence was stayed (73 Ill. 2d R. 609(a)) pending direct appeal to this court pursuant to Rule 603 (73 Ill. 2d R. 603; Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(i)).

Through a written statement made by the defendant and admitted at trial, it was revealed that on September 27, 1977, the defendant picked up the victim, Louise M. Betts, while she was hitchhiking on a road in Boone County. The defendant held a jack knife to the victim’s throat and drove to a road with cornfields on either side. The defendant stopped the car and told the victim to get out and take off her clothes. He then engaged in sexual intercourse with her. The defendant thereafter attempted to strangle the victim, but she was able to get up and run an undetermined distance. The defendant caught her, strangled her again, and then stood or jumped on her stomach and neck. The defendant dragged the victim farther into the cornfield and left her. He said he felt her pulse before he left her but he did not know whether she was dead or not.

The defendant was arrested on another charge on February 2, 1978, by Winnebago County police. On March 31, 1978, Boone County detectives requested an interview with the defendant while he was still in custody in Winnebago County on charges, unrelated to the instant case, of attempted murder and rape. The defendant was interviewed on March 31, 1978, and again on April 1, 1978. Defendant requested counsel after the first interview on March 31, 1978, and was afforded the opportunity to consult with counsel several times beginning at 6:15 p.m. on March 31, 1978. On April 2, 1978, at approximately 2 a.m. the defendant requested to see the detectives. One of the detectives advised the defendant that he had the right to have counsel present and offered to call counsel. The defendant refused the offer, stating that his lawyer would not let him say everything he wished to say.

The defendant signed a rights waiver form and then gave a three-page statement inculpating himself with regard to the aggravated kidnapping, rape and murder of Louise M. Betts.

The defense made a motion to suppress the statement on the basis, inter alia, that he had been denied his right to counsel and his right to remain silent. The motion to suppress was denied. The defense also made motions to bar the imposition of the death sentence, to acquire funds for expert witnesses, to exclude questions on voir dire regarding the veniremen’s convictions concerning the death penalty, and to hold the death penalty act unconstitutional. These and several other motions were denied, and are properly preserved for review.

The defendant attacks the written statement on two grounds: first, that its admission against him violated his right against self-incrimination under the fifth and fourteenth amendments to the United States Constitution and under article I, section 10, of the Illinois Constitution of 1970. The defendant argues that the written statement was taken from him in disregard of his right to counsel guaranteed by the sixth and fourteenth amendments to the United States Constitution and article I, section 8, of the Illinois Constitution.

The State rejoins that the defendant made a knowing, intelligent and voluntary waiver of his right to remain silent and his right to counsel.

The State has a heavy burden to show that a defendant has waived his constitutional rights in a knowing, intelligent and voluntary manner. (Miranda v. Arizona (1966), 384 U.S. 436, 475, 16 L. Ed. 2d 694, 724, 86 S. Ct. 1602, 1628.) We think that burden has been sufficiently borne here. A detailed review of testimony at trial concerning events leading up to the statement shows that the defendant was in the custody of the Winnebago County police on charges of attempted murder and rape on March 31, 1978. At approximately 2:15 p.m. on that day, Winnebago County detective Robert Ferger, accompanied by Boone County detective Joe Rollins, interviewed the defendant. The defendant interrupted Rollins during the reading of the Miranda rights to ask for his attorney to be present. Rollins did not call the defendant’s attorney; instead he ceased questioning the defendant. Before he walked out of the interview room, Rollins placed a picture of Louise Betts, the murder victim, in front of the defendant and asked the defendant if he recognized the person in the picture. According to the testimony of the two detectives received during the hearing on a second motion to suppress, the defendant “jerked back slightly” and responded he did not know the person. The motion to suppress was granted so that the incident with the photograph and testimony of the two officers concerning it were kept from the jury during the trial.

By 6:15 p.m. on March 31, 1978, the defendant was represented by counsel. At that time the defendant appeared in a lineup, concerning the Winnebago County offense. The defendant met with counsel before and after the lineup. After the lineup, Gary Arbisi, a Winnebago County detective investigating the previously referred to offenses informed the defendant that he could speak to the police whether his attorney was present or not. The defendant stated he would follow counsel’s advice. Arbisi started to say something else but counsel prevented him from doing so.

The next day, April 1, 1978, at approximately 6 p.m., Arbisi and another detective went to the defendant’s home to speak with the defendant’s wife concerning information they had received that the defendant had told Mrs. Brownell he was guilty of murder. Mrs. Brownell asked to speak with her lawyer. When counsel arrived he advised Mrs. Brownell not to speak to the detectives. Mrs. Brownell eventually agreed to talk to the detectives, but only if she could first speak with the defendant. The detectives then arranged a visit at the jail between the defendant and his wife. The defendant met separately with counsel, then with his wife and, later, again with counsel. Mrs. Brownell agreed to tell the police “everything” but, after a phone call with the defendant’s stepfather, an attorney, she declined to make a statement.

The defendant’s counsel, after his later meeting with the defendant, stated to a detective that he thought negotiations should begin with the State’s Attorney to waive the death penalty in any ensuing proceeding. Counsel then met with the State’s Attorneys of Boone and Winnebago counties and two assistant State’s Attorneys until 10 p.m. An offer was made by the State’s Attorneys that if the defendant made a written confession of murder, the death penalty would not be sought at trial. Thereafter the defendant, after conferring again with counsel, declined the offer.

A final conference took place among the defendant, defense counsel, and Detectives Arbisi and Rollins. Arbisi asked the defendant if he wished to speak to the detectives. Counsel advised the defendant not to do so. Arbisi then asked counsel for permission to speak to the defendant. Counsel granted permission. Arbisi told the defendant that while the defendant did not have to speak to the police, if he changed his mind and wanted to speak to the police, with or without counsel present, the defendant could do so. The defendant said he would follow counsel’s advice. A few minutes later, on the way to his cell, the defendant was asked again by Arbisi whether he wished to talk. The defendant answered that he needed more time. Counsel informed the other attorneys that the defendant needed more time to consider their offer. It was approximately 1 a.m. on April 2, 1978, when all parties dispersed.

Approximately one hour later, the defendant told the jailer he wanted to talk to the police. Detectives Arbisi and Packard were summoned. When they met the defendant in an interview room, Arbisi asked the defendant whether the defendant desired to have counsel present. The defendant said he did not want counsel to be present. The defendant was advised of his Miranda rights. The defendant said he understood his rights and signed a statement to that effect. He then gave an incriminating written statement to the police.

The defendant argues that he did not waive either the right to remain silent or the right to counsel. He states that the right to remain silent was violated when the detectives did not “scrupulously honor” it at the initial interrogation session. Also, the defendant states that any subsequent statement by him was rendered inadmissible by the initial violation of his right to remain silent.

We agree that the detectives did not “scrupulously honor” the defendant’s right to cut off questioning in the first instance. [Michigan v. Mosley (1971), 423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326.) The complete statement by the court in Mosley is “that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” (423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326.) We interpret that passage, however, to include only the statement obtained as a result of not honoring the defendant’s right to cut off questioning. We do not think the court intended that all subsequent statements are to be excluded. Indeed, our view is amply supported by the following passage from Michigan v. Mosley:

“To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” (423 U.S. 96, 102-03, 46 L. Ed. 2d 313, 320-21, 96 S. Ct. 321, 326.)

(Accord, People v. Aldridge (1980), 79 Ill. 2d 87.) Therefore in the instant case, the trial court was correct in excluding evidence concerning the initial interrogation on March 31, 1978, on the basis that the defendant’s right to cut off questioning had not been scrupulously honored. The trial court was also correct in finding that the admission of the written statement did not violate the defendant’s right to remain silent. The written statement was made 36 hours after the initial interrogation, after the defendant had conferred with counsel several times, after the defendant had been informed of his Miranda rights, and after the defendant had expressly declined to remain silent or to have counsel present. The defendant’s right to remain silent was not violated.

We also think that the defendant’s right to counsel was properly observed. Before taking the written statement from the defendant, the detective offered three times to call his attorney. The defendant declined each offer. He expressly said the attorney would not permit him to say what he wished to say to the detectives.

Finally, we do not think that the defendant’s waiver of the right to remain silent and the right to counsel was defective due to the “affirmative, repeated efforts” of the detectives to obtain a confession. The detectives did not coerce or threaten the defendant into speaking with them. Moreover, most of the attempts they made to persuade the defendant to confess were made in the presence of counsel. Lastly, it was one hour after the defendant was placed in a cell and after his last contact with the detectives that he decided to confess.

The finding of the trial court on the voluntariness of a confession will not be disturbed unless it can be said that it is contrary to the manifest weight of the evidence. (People v. Aldridge (1980), 79 Ill. 2d 87; People v. Medina (1978), 71 Ill. 2d 254, 258.) We think the weight of the evidence herein is that the defendant’s waiver of the right to remain silent and the right to counsel was voluntary, knowing and intelligent. The trial court properly admitted the written statement.

The defendant next argues that the trial court erred in denying his motion to preclude questions during voir dire concerning the death penalty. The defendant asserts specifically that “death qualification” voir dire questions result in a jury biased in favor of the prosecution in violation of the defendant’s right to an impartial trial. After the trial court denied his motion, the defendant waived his right to a jury trial. The defendant now argues that the court “improperly influenced” him to waive his right to a jury trial by denying the motion to preclude “death qualification” questions. The State argues in reply that the defendant, by waiving his right to a jury trial, has not preserved an issue for review.

We think that the defendant has preserved for review the question of whether the trial court properly denied the motion to preclude “death qualification” questions on voir dire. The defendant made the motion; it was denied; and he is raising the propriety of the court’s denial on appeal. (See, e.g., People v. Duchant (1939), 370 Ill. 650, 652.) Where we agree with the State is that, in subsequently waiving the right to a jury trial, the defendant eliminated the need to conduct voir dire. The defendant cannot then assert that had voir dire been conducted, the court would have erroneously selected a jury, in contravention of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. The defendant offers no factual basis whatsoever for this contention, and we reject any presumption that the court would err.

The defendant’s concomitant contention is that the court “improperly influenced” him to waive a jury trial when it denied the motion. No act of the court prevented the defendant from having a jury trial. If error had occurred in voir dire, the defendant could have objected at that point and counsel could have drawn the court’s attention to the error. If the error was not corrected, the defendant could raise the issue here. The defendant did none of this. Instead he argues that he was deprived of a jury trial because of error which might have occurred, but did not. We will not indulge in speculation as to what error the court might have committed, and we refuse to assume that the spectre of speculative error influenced the defendant to waive his right to trial by jury.

The defendant next contends that since his indictment did not specify any one of the seven aggravating factors which must be proved to impose the death penalty (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)), he was formally charged with “non-capital” murder and may not be sentenced to death. The defendant asserts that the imposition of the death penalty under these circumstances violates Illinois case law and principles of double jeopardy.

The case the defendant principally relies upon is People v. Ostrand (1966), 35 Ill. 2d 520. The defendant’s reliance on Ostrand is misplaced. Ostrand involved a conviction for unlawful use of weapons. The defendant argued there that the trial court erred when it permitted the indictment to stand because it alleged that he had committed a prior felony within five years of the date of the immediate offense. The unlawful use of weapons statute (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1(b)) provides that a person will be chargeable with a felony instead of a misdemeanor when a prior felony has been committed within five years of the immediate offense. Thus, this court held that it was not only proper, but also necessary, for the trial court to permit the allegation and, later, the proof of the prior felony conviction to be admitted. People v. Ostrand (1966), 35 Ill. 2d 520, See also People v. Owens (1967), 37 Ill. 2d 131; People v. Dixon (1970), 46 Ill. 2d 502, 504; People v. Edwards (1976), 63 Ill. 2d 134, 138.

The defendant bases the contention that the imposition of the death sentence violates double jeopardy principles upon the argument that the defendant has been tried twice, first in a trial for the lesser included offense of murder and then in the sentencing hearing for the offense of “capital murder.” The solution, posits the defendant, lies in formally charging the defendant with all of the elements of the offense to be proved against him, particularly the statutory aggravating factor necessary to the imposition of the death sentence. Thus, argues the defendant, since he was tried a second time, without a formal charge for “capital” murder, the proceeding was violative of principles of Illinois law and the double jeopardy provisions of the fifth and fourteenth amendments to the United States Constitution.

First of all, there is only one offense of murder in Illinois; no distinction is made between capital and non-capital murder. (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1.) Secondly, without holding that every indictment must contain every aggravating factor which the State will attempt to prove, we hold that, in the indictment involved here, one of the aggravating factors found by the court at the sentencing hearing was sufficiently alleged in the indictment to fulfill the requirements of law. An indictment’s allegations must be set out with such specificity or particularity that the accused is informed of the offense with which he is charged and enabled to prepare his defense and, further, that he is protected against being later prosecuted for the same crime. (People v. Gregory (1974), 59 Ill. 2d 111, 114.) The indictment satisfied the foregoing requirements. The defendant was charged with the murder, aggravated kidnapping and rape of Louise M. Betts on September 27, 1977. One of the aggravating factors relied upon by the court in sentencing the defendant was that the defendant intentionally murdered the victim in the course of two other felonies, aggravated kidnapping and rape. Section 9 — 1(b)(6) provides:

“(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
* * *
6. the murdered individual was killed in the course of another felony if:
(a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime; and
(b) the defendant killed the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm to the murdered individual or another; and
(c) the other felony was one of the following: armed robbery, robbery, rape, deviate sexual assault, aggravated kidnapping, forcible detention, arson, burglary, or the taking of indecent liberties with a child.” (Ill. Rev. Stat. 1977, ch. 38, par. 9-l(b)(6).)

Thus, we think the indictment’s allegations specifically and particularly informed the defendant of the charges against him so that he could prepare his defense and so that he was fully apprised, from indictment on, that he could potentially receive the death sentence. Since we hold the indictment sufficiently informed the defendant of the offenses against him and, in particular, that he might receive the death sentence, the defendant’s contention that principles of double jeopardy were violated loses its force. The defendant was charged with the single offense of murder, and has been convicted and sentenced only once, as is wholly consistent with the guarantee afforded by the double jeopardy provisions of the fifth and fourteenth amendments to the Constitution, which assure “ ‘that no man can be twice lawfully punished for the same offence.’ ” North Carolina v. Pearce (1969), 395 711, 717, 23 L. Ed. 2d 656, 665, 89 S. Ct. 2072, 2076, quoting Ex parte Lange (1874), 85 U.S. (18 Wall.) 163, 168, 21 L. Ed. 872, 876. There was no double jeopardy here.

Finally, we emphasize that we are limiting our conclusion to one aggravating factor — that the murder was committed in the course of other felonies, i.e., rape and aggravated kidnapping. While the issue was not raised by the defendant, we conclude that the second aggravating factor found by the trial court — that the murdered individual was an eyewitness or possessed other material evidence against the defendant (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(7)),—was not established in this case. The court appears to have made the finding that the victim was an eyewitness upon the evidence adduced at trial — that the victim, as the subject of the aggravated kidnapping and rape, could have later testified against the defendant. We do not think this particular factual situation was intended by the General Assembly to be included within this aggravating factor. Rather, we think the General Assembly intended to include situations where, during an investigation or prosecution of a separate offense which has previously taken place, a witness is killed in an attempt to stymie the investigation or prosecution. (See Remarks of Senator Knuppel, Ill. S. Rec., 80th Gen. Assem., June 1, 1977, at 21-25.) Otherwise, were we to adopt the trial court’s finding, this aggravating factor could apply in every prosecution for murder where another offense contemporaneously occurs because the victim could have been a witness against the defendant. Or, even more broadly, this aggravating factor could apply to every prosecution for murder since every victim, obviously, is prevented from testifying against the defendant. We do not think the General Assembly intended the death penalty to be applied in every murder case, and, if it did, the General Assembly could certainly find a more direct way to express its intent than through this aggravating factor. Therefore we hold that the aggravating factor relating to a murdered individual who was, or who may be, a witness against a defendant, or who may assist in the investigation or prosecution of a defendant, does not include the investigation or prosecution for the offenses which occurred in the course of the commission of the murder offense, including the murder offense itself.

The defendant’s next two assignments of error challenge the constitutionality, under the cruel and unusual punishment clause of the eighth amendment and the due process clause of the fourteenth amendment, of the prosecutor’s ability to request a sentencing hearing. The defendant also again argues that the indictment is defective because the death sentence hearing is begun by the prosecutor without there being any formal charge of “aggravaled murder,” thus offending the eighth amendment.

First, as to the indictment, that issue was already decided herein. There is no offense of “aggravated,” as opposed to simple, murder, in Illinois. There is simply one murder statute, which includes within it a provision for the imposition of the death sentence. Moreover, as we have already concluded, the defendant was adequately informed that, on the basis of the charges against him, he could possibly receive the death sentence since he was charged with murder while in the commission of two other felonies: aggravated kidnapping and rape. Therefore, the defendant’s argument that the cruel and unusual punishment clause is violated because of the insufficiency of the indictment lacks merit.

As to the defendant’s other arguments that the prosecutor’s discretion to request a sentencing hearing will lead to cruel and unusual punishment and the arbitrary and capricious imposition of the death penalty in violation of the eighth amendment, we believe those issues were addressed and resolved in our recent decision in People ex rel. Carey, v. Cousins (1979), 77 Ill. 2d 531. There we held that the discretion vested in the prosecutor pursuant to section 9 — 1(d) of the murder statute (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d)) does not offend the eighth amendment because the prosecutor does not act as the sentencing authority. He merely requests a sentencing hearing dependent upon whether the requisite elements for a death sentence exist. Also, we held that the prosecutor’s discretion is sufficiently guided since he will request a sentencing hearing at the conclusion of the trial, after he will have had the opportunity to evaluate evidence to determine whether a sentencing hearing is, indeed, warranted.

The next contention of the defendant — that section 9 — 1(d) constitutes an improper delegation of legislative authority and an improper grant of judicial sentencing power to the executive branch — was also decided and rejected in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531. We need not consider it again here.

The next argument raised by the defendant is that the death penalty provisions of section 9 — 1 offend the due process clause of the fourteenth amendment because they permit the arbitrary imposition of the death sentence, based upon vague sentencing standards. The argument continues that the statute does not contain guidelines or standards as to the weight to be given the aggravating and mitigating factors. The pertinent provisions of section 9 — 1 state:

“(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
1. the murdered individual was a peace officer or fireman killed in the course of performing his official duties and the defendant knew or should have known that the murdered individual was a peace officer or fireman; or
2. the murdered individual was an employee of an institution or facility of the Department of Corrections, or any similar local correctional agency, killed in the course of performing his official duties, or the murdered individual was an inmate at such institution or facility and was killed on the grounds thereof, or the murdered individual was otherwise present in such institution or facility with the knowledge and approval of the chief administrative officer thereof; or
3. the defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to Subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts; or
4. the murdered individual was killed as a result of the hijacking of an airplane, train, ship, bus or other public conveyance; or
5. the defendant committed the murder pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder or procured another to commit the murder for money or anything of value; or
6. the murdered individual was killed in the course of another felony if:
(a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime; and
(b) the defendant killed the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm to the murdered individual or another; and
(c) the other felony was one of the following: armed robbery, robbery, rape, deviate sexual assault, aggravated kidnapping, forcible detention, arson, burglary, or the taking of indecent liberties with a child; or
7. the murdered individual was a witness in a prosecution against the defendant, gave material assistance to the state in any investigation or prosecution of the defendant, or was an eye witness or possessed other material evidence against the defendant.
(c) Consideration of factors in Aggravation and Mitigation. The court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. Aggravating factors may include but need not be limited to those factors set forth in subsection (b). Mitigating factors may include but need not be limited to the following:
1. the defendant has no significant history of prior criminal activity;
2. the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution;
3. the murdered individual was a participant in the defendant’s homicidal conduct or consented to the homicidal act;
4. the defendant acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm;
5. the defendant was not personally present during commission of the act or acts causing death.
***
(e) Evidence and Argument.
During the proceeding any information relevant to any of the factors set forth in Subsection (b) [aggravating factors] may be presented by either the State or the defendant under the rules governing the admission of evidence at criminal trials. Any information relevant to any additional aggravating factors or any mitigating factors indicated in Subsection (c) may be presented by the State or defendant regardless of its admissibility under the rules governing the admission of evidence at criminal trials. The State and the defendant shall be given fair opportunity to rebut any information received at the hearing.
(f) Proof.
The burden of proof of establishing the existence of any of the factors set forth in Subsection (b) [aggravating factors] is on the State and shall not be satisfied unless established beyond a reasonable doubt.
(g) Procedure — Jury. I
If at the separate sentencing proceeding the jury finds that none of the factors set forth in Subsection (b) exists, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections. If there is a unanimous finding by the jury that one or more of the factors set forth in Subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed. If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.
Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.
(h) Procedure — No Jury.
In a proceeding before the court alone, if the court finds that none of the factors found in Subsection (b) exists, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.
If the Court determines that one or more of the factors set forth in Subsection (b) exists, the Court shall consider any aggravating and mitigating factors as indicated in Subsection (c). If the Court determines that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the Court shall sentence the defendant to death.
Unless the court finds that there are no mitigating factors sufficient to preclude the imposition of the sentence of death, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.” Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(b), (c), (e),(f),(g),(h).

The focus of the defendant’s argument is on the word “sufficient” in the statement that if the jury (or the court), determines that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death. The defendant asserts that the trier of fact is not guided as to the weight to be given the aggravating versus the mitigating factors. Thus, argues the defendant, the statute is unconstitutionally vague.

We do not agree, and we think that this issue is controlled by the decisions in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960, and Jurek v. Texas (1976), 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950, Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978, and Roberts v. Louisiana (1976), 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001. In Gregg, in an exhaustive opinion, the Supreme Court detailed the constitutionality of the death penalty, in general, and of the Georgia death penalty statute (Georgia Code Ann. sec. 26 — 1101 (1972) (murder)), in particular. The court held that the punishment of death does not invariably violate the Constitution (428 U.S. 153, 169, 49 L. Ed. 2d 859, 872, 96 S. Ct. 2909, 2923). Also, the court held that the provision of the Georgia act whereby the trier of fact “considers” the aggravating and mitigating circumstances at a separate sentencing proceeding does not result in the capricious or freakish imposition of the death sentence. 428 U.S. 153, 169, 49 L. Ed. 2d 859, 872, 96 S. Ct. 2909, 2923.

The court stated that “Furman [v. Georgia (1972), 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726,] mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” [Gregg v. Georgia (1976), 428 U.S. 153, 189, 49 L. Ed. 2d 859, 883, 96 S. Ct. 2909, 2932.) The court went on to conclude that while the process whereby the sentencing authority weighed the aggravating circumstances, proved beyond a reasonable doubt, against the mitigating circumstances, is by necessity somewhat general, it provides guidance to the sentencing authority and reduces the likelihood that the death sentence will be imposed capriciously or arbitrarily. [Gregg v. Georgia (1972), 428 U.S. 153, 193-95, 49 L. Ed. 2d 859, 886, 96 S. Ct. 2909, 2935.) The court further said that the safeguard of meaningful appellate review, taken together with the requirement that the sentencing authority specify the factors it relied upon to reach its decision, would further insure that death sentences are not imposed capriciously or in a freakish manner. 428 U.S. 153, 195, 49 L. Ed. 2d 859, 886-87, 96 S. Ct. 2909, 2935.

Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960, may be even more pertinent since there, as here, the court imposed the death sentence; in Gregg the jury sentenced the defendant to death. The court upheld the Florida statute as constitutional. Under that statute (Fla. Stat. Ann. sec. 782.04 (Supp. 1979) (murder)), a jury may hear evidence in a hearing separate from the trial. At the conclusion of the hearing the jury considers “[w] hether sufficient mitigating circumstances exist *** which outweigh the aggravating circumstances found to exist; and *** [b] ased on these considerations, whether the defendant should be sentenced to life imprisonment or death.” (Fla. Stat. Ann. secs. 921.141(2)(b), (c) (Supp. 1979).) The jury’s verdict is determined by majority vote. It is only advisory however; the actual sentence is determined by the trial court. The court also is required to weigh the statutory aggravating and mitigating circumstances before imposing sentence. There is automatic review by the Supreme Court of Florida, though unlike Georgia, review need not take any specific form. The gist, therefore, of the Georgia, Florida and Texas statutes is that the sentencing authority, be it judge or jury, “must focus on the individual circumstances of each homicide and each defendant” (Proffitt v. Florida (1976), 428 U.S. 242, 252, 49 L. Ed. 2d 913, 922, 96 S. Ct. 2960, 2966; see also Gregg v. Georgia (1976), 428 U.S. 153, 199, 49 L. Ed. 2d 859, 96 S. Ct. 2909, 2937;Jurek v. Texas (1976), 428 U.S. 262, 271, 49 L. Ed. 2d 929, 938, 96 S. Ct. 2950, 2956; Woodson v. North Carolina (1976), 428 U.S. 280, 303-05, 49 L. Ed. 2d 944, 960-61, 96 S. Ct. 2978, 2991; Roberts v. Louisiana (1976), 428 U.S. 325, 333-34, 49 L. Ed. 2d 974, 981-82, 96 S. Ct. 3001, 3006), which necessarily entails that weight be given to mitigating as well as aggravating circumstances where the death sentence might be imposed. Lockett v. Ohio (1978), 438 U.S. 586, 604, 57 L. Ed. 2d 973, 990, 98 S. Ct. 2954, 2965.

The Illinois statute certainly falls within the rule set down by the Supreme Court. Sections 9 — 1(g) and (h) provide that, once the State has proved the existence of any of the aggravating factors (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)), beyond a reasonable doubt (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(f)), a unanimous jury or the court must weigh the mitigating factors against the aggravating factors and must conclude that no mitigating factors sufficiently preclude the imposition of the death sentence. Without doubt, a balancing process is required; while the precise weight to be given each aggravating and mitigating factor is not made a matter of numerical calculation, that is not a constitutional infirmity. Rather, since the sentencing authority is given specific evidence to weigh, based upon the particularized circumstances of the case, any “ ‘discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.’ ” Gregg v. Georgia (1976), 428 U.S. 153, 198, 49 L. Ed. 2d 859, 888, 96 S. Ct. 2909, 2936, quoting Coley v. State (1974), 231 Ga. 829, 834, 204 S.E.2d 612, 615. As stated in Proffitt: “While the various factors to be considered by the sentencing authorities do not have numerical weights assigned to them, the requirements of Furman are satisfied when the sentencing authority’s discretion is guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.” Proffitt v. Florida (1976), 428 U.S. 242, 258, 49 L. Ed. 2d 913, 926, 96 S. Ct. 2960,2969.

Several mitigating factors were considered by the court. It made the following findings: The court found, as factors not enumerated in the statute, that the defendant voluntarily confessed to the offenses of which he was convicted; that the defendant had a stable work record, held a responsible job and supported his family; that the defendant served in the armed forces and was honorably discharged; that the defendant might receive aid from his family; and that the defendant had stated that he possessed religious convictions. The court also made findings as to the absence of statutory mitigating factors. Specifically the court found that the defendant was “personally present during the commission of the act[s] ” causing death; that the defendant did not act “under compulsion of threat, or menace of the imminent infliction of death or great bodily harm”; that the murdered individual was not “a participant in the defendant’s homicidal conduct” and did not consent to the defendant’s homicidal act; that the defendant did not act under the influence of an extreme mental or emotional disturbance but rather by “a deliberate methodical design”; and, finally, that since the defendant, at the time of sentencing in this matter, had been recently convicted of, but not sentenced for, attempted murder and rape in the circuit court of Winnebago County, and had a history of lesser offenses, the defendant had a significant history of prior criminal activity.

The trial court found beyond a reasonable doubt the existence of two aggravating factors. We have upheld the finding of the court that a murder was committed in the course of the felonies of aggravated kidnapping and rape. The other aggravating factor found by the court we have concluded, as a matter of statutory interpretation, did not exist. Thus, we deem it necessary to a complete and fair sentencing hearing that we vacate the sentence of death and remand this cause to the circuit court for a new sentencing hearing, as to the imposition of the death penalty only; the sentences for the other offenses will stand. The partial resentencing hearing is essential because of the profound importance we attach to the trial court’s role in weighing aggravating and mitigating factors. In this instance, the trial court weighed an aggravating factor which we have concluded figured erroneously in the court’s sentencing decision. We have now removed that factor from the scale. Whether the scale will remain stable or will tip as a result of our conclusion is initially for the trial court to determine. For us either to affirm or reverse the trial court’s sentence, without providing the trial court an opportunity to resentence in light of our conclusion of law, would usurp the trial court’s function as the sentencing authority. Needless to say, we in no way intimate what the trial court’s sentence, upon remand, should be. That decision must be left to the trial court since it was the court which saw and heard the evidence and is best able to impose an appropriate sentence.

The next issue we consider is whether the defendant’s waiver of a jury proceeding at the sentencing hearing was knowing and understanding. The defendant specifically avers that the defendant was not aware that one juror’s belief that no aggravating factor had been established beyond a reasonable doubt, or that a mitigating factor sufficient to preclude the imposition of the death penalty had been proved, “would terminate the death penalty proceedings against him.” Without deciding whether a defendant must always be made aware of the foregoing before he may make a knowing waiver of a jury proceeding, we conclude that the record reveals that the defendant in this case was so informed by the court:

“THE COURT: Let me explain to you that there is a very important provision in the law which states that you have a right to have a trial by jury on the question of whether a death penalty is to be imposed. That right cannot be taken away from you unless you actually knowingly waive the right to have a jury trial. If you waive the right then a Judge will hear the same evidence that would be heard before a jury. However, instead of having twelve jurors reach a unanimous verdict of 12 — 0 the Judge alone would make the decision upon hearing the evidence. If you wish to avail yourself of the right to have the jury trial you are entitled to do that. Is that essentially what has been explained to you by your Attorneys?
DEFENDANT: Yes, completely.” (Emphasis added.)

We perceive that the foregoing, especially the phrase “unanimous verdict of 12 — 0,” amply informed the defendant of the fact that one juror’s belief that the statutory requirements had not been met could preclude the imposition of the death sentence. Moreover, the defendant was ably represented by counsel, who explained the procedure to the defendant. We think the defendant made a knowing and understanding waiver of the right to have a jury proceeding.

We next turn to the defendant’s contention that the trial court erred in the sentencing hearing when it concluded that the defendant had proved no mitigating factor sufficient to preclude imposition of the death sentence. Specifically the defendant argues two points: first that proof of any one of the five statutory mitigating factors always precludes the imposition of the death sentence; and, second, that the defendant proved the existence of the following statutory mitigating factor: “the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(c)(2).) Thus, argues the defendant, he may not be sentenced to death.

We do not agree that the proof of one statutory mitigating factor always precludes the imposition of the death sentence, as defendant contends. We have reviewed the remarks made on the floor of the Illinois House of Representatives which defendant claims support his contention. We do not think they are controlling, because the statute itself provides a weighing process is to be performed between the aggravating and mitigating factors. (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 1(g), (h).) Moreover, the Supreme Court, in interpreting statutes similar to our own, has repeatedly and approvingly emphasized that a weighing process must take place. (Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909; Proffitt v. Florida (1976), 428 U.S. 242, 251, 49 L. Ed. 2d 913, 922, 96 S. Ct. 2960, 2966; Lockett v. Ohio (1978), 438 U.S. 586, 608, 57 L. Ed. 2d 973, 992, 98 S. Ct. 2954, 2966-67.) Therefore, we hold that the proof of one mitigating factor, by itself, will not always preclude the imposition of the death sentence. Instead, the sentencing authority should carefully weigh the factors, aggravating and mitigating, in order to reach a fair and just result, one that is based on the particular circumstances of the offense and the defendant. See Proffitt v. Florida (1976), 428 U.S. 242, 252, 49 L. Ed. 2d 913, 922, 96 S. Ct. 2960, 2966. .

We now consider the defendant’s second argument, that the court erred in finding that the defendant was not under the influence of an extreme mental or emotional disturbance at the time the murder was committed. At the sentencing hearing, the court heard the testimony of four psychiatrists. One of the doctors, Albert H. Stipes, described the defendant to be suffering from “[s] chizophrenia, latent type and multiple sexual deviations.” The doctor further testified that the defendant has acted under extreme mental disturbance most of his life, particularly during times of stress. The doctor also stated that the defendant has a personality disorder which may show itself by rage. In addition, the doctor testified that the defendant was under an extreme mental disturbance at the time he committed the murder, one which was caused by a “build-up” of stress. However, the doctor testified he was told nothing by the defendant about the cause of any stress the defendant may have been experiencing on the night the murder was committed.

Dr. Leroy Levitt was also called by the defendant to testify. He stated that he diagnosed that the defendant had “a severe personality disorder, passive-aggressive type, with multiple sexual deviances.” Dr. Levitt also agreed with Dr. Stipes’ testimony that the defendant suffers from stress which results in an uncontrollable need to discharge his feelings. Dr. Levitt further stated that the defendant acted under an extreme mental disturbance at the time of the murder in that his violent reaction to stress is much greater than for many other people. The doctor additionally said that he did not know and did not ask the defendant what precipitating event caused the defendant to murder the victim.

The State called Dr. J. G. Graybill to testify as a rebuttal expert witness. Dr. Graybill agreed with the other two witnesses that the defendant is of a “passive-aggressive personality with sexual deviation.” Dr. Graybill did not, however, believe the defendant acted under the influence of an extreme mental or emotional disturbance at the time of the murder. Lastly, Dr. Carl Hamann was called to testify. He diagnosed the defendant’s condition as a character disorder, passive-aggressive personality with sexual deviation, a personality disorder. Dr. Hamann also offered the opinion that the defendant was not under the influence of an extreme mental or emotional disturbance at the time of the murder.

The court in sentencing the defendant stated that, in its view of the testimony of the four expert witnesses and the other evidence, there was no showing that on September 22, 1977, the defendant was under the influence of an extreme mental or emotional disturbance. The court concluded that the manner in which the defendant comported himself before, during and after the murder indicated a “deliberate methodical design.”

There is no reason to set aside the finding of the trial judge. It is supported by the evidence. While in a case of this gravity this court will make a separate evaluation of the record, we should not lightly overturn the findings of the trial court, particularly when they are amply supported by the record. (See, e.g., People v. Myers (1966), 35 Ill. 2d 311, 340-41.) Therefore the finding of the trial court that the defendant did not commit murder while under the influence of an extreme mental or emotional disturbance will be sustained.

Another contention made by the defendant is that the trial court erred when it denied his motion for the appointment of experts to compile data and to testify concerning the proportionality of his sentence and his prospects for rehabilitation. Defendant’s motion alleged such testimony was necessary in order to provide an adequate basis for this court’s review, apparently so that we might be better able to determine whether death sentences were being imposed “in an arbitrary and capricious manner” or “to a particular type of defendant.” While we agree that the Supreme Court envisages, as defendant phrases it, a “proportionality review” by us, we do not interpret Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960, or Jurek v. Texas (1976), 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950, as requiring that review to be predicated upon expert testimony. Defendant has not indicated, nor do we perceive, how such testimony can be of material assistance to either the trial judge or us. The imposition of sentence in a murder case is a judicial function, the performance of which would not normally be assisted by expert testimony as to what would constitute a “proportional” sentence in a given case. And we, of course, in reviewing all death cases will be in a position to insure a reasonable degree of rationality and consistency.

The trial court in this case did provide funds for the services of a psychiatrist, Dr. Albert Stipes, and a psychologist. The defendant made no mention during the hearing on his motion of his need for the probation and parole expert, and it seems clear that, even if that testimony were admissible, defendant has established neither the need therefor nor prejudice due to its absence.

The final assignment of error raised by the defendant is whether section 9 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1) offends the eighth and fourteenth amendments to the United States Constitution because it does not provide adequate appellate review procedures to prevent the arbitrary imposition of the death penalty.

Specifically, the defendant argues that the Illinois death penalty statute is defective concerning appellate review because it does not require a comparison by this court of all the cases in which the death sentence is imposed to determine if the death sentence is being imposed uniformly throughout the State. Additionally, the defendant argues that the Illinois statute does not provide for adequate review because it does not require the sentencing authority to make written findings as to the aggravating and mitigating factors relied upon by the judge or jury in imposing the death sentence. We conclude that the automatic appellate review procedure authorized under the statute is constitutional. Section 9 — l(i) provides:

“(i) Appellate Procedure.
The conviction and sentence of death shall be subject to automatic review by the Supreme Court. Such review shall be in accordance with rules promulgated by the Supreme Court.” Ill. Rev. Stat. 1977, ch. 38, par. 9-1 (i).

This court has promulgated new rules or has amended existing rules to comply with the statutory directive. (See 73 Ill. 2d Rules 603, 606(a), 607(a), 609(a), 611(a), 613(a).) These rules apply respectively to automatic appeal to the Supreme Court, automatic perfection of appeal in cases in which the death sentence is imposed, appointment of two attorneys for indigent defendants, an automatic stay of sentence until final order of this court, priority in oral argument, and, finally, the mandate of this court, affirming, reversing or modifying the judgment of the trial court. In addition, Rule 615 sets forth a range of powers of a reviewing court from taking cognizance of errors or defects affecting substantial rights even though they were not brought to the attention of the trial court, to reducing the punishment imposed by the trial court. (73 Ill. 2d R. 615.) This court is empowered to do substantial justice in any case, including cases where the death sentence has been imposed. Thus the defendant’s argument that section 9 — 1 (i) offends the eighth and fourteenth amendment because it permits arbitrary imposition of the death penalty is substantially weakened.

Moreover, we view the Supreme Court’s statements in its recent decisions on the constitutionality of other States’ death penalty statutes to be dispositive. In Gregg v. Georgia (1976), 428 U.S. 153, 198, 49 L. Ed. 2d 859, 888, 96 S. Ct. 2909, 2937, the court approved the Georgia review procedure which requires that the Supreme Court of Georgia employ a staff of persons to compare Georgia cases in which the death sentence has been imposed. That statute (Georgia Code Ann. sec. 27 — 2537 (Supp. 1975)) also requires that the court specify in its opinion which cases it took into consideration. Finally, the statute requires the court to “review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w] hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’ ” (Gregg v. Georgia (1976), 428 U.S. 153, 204, 49 L. Ed. 2d 859, 892, 96 S. Ct. 2909, 2939.) The Georgia statute also requires the sentencing authority to make written findings as to the “aggravating circumstance or circumstances which it found beyond a reasonable doubt.” (Ga. Code Ann. sec. 27 — 2534.1(10)(c) (Supp. 1975).) We think it significant to note, however, that while the court approved of the Georgia statutory review procedures in Gregg, it also approved of the less complex procedures provided for in the Florida and Texas death penalty statutes. See Proffitt v. Florida (1976), 428 U.S. 242, 258, 49 L. Ed. 2d 913, 926, 96 S. Ct. 2960, 2969; Jurek v. Texas (1976), 428 U.S. 262, 276, 49 L. Ed. 2d 929, 941, 96 S. Ct. 2950, 2958.

The court stated in Proffitt: “While it may be true that [the Florida Supreme Court] has not chosen to formulate a rigid objective test as its standard of review for all cases, it does not follow that the appellate review process is ineffective or arbitrary.” (428 U.S. 242, 258, 49 L. Ed. 2d 913, 926, 96 S. Ct. 2960, 2969.) The same was held as to the Texas statute. In Jurek it was concluded: “By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” (428 U.S. 262, 276, 49 L. Ed. 2d 929, 941, 96 S. Ct. 2950, 2958.) The same may be said of the review which will be accorded each similar case before this court. The entire record undergoes scrutiny for errors and defects. The sentencing hearing is reviewed with the object of ascertaining whether any aggravating factors are proved beyond a reasonable doubt. In fact, in the instant case, we have vacated as a matter of law the finding of the trial court that one of the aggravating factors existed. Our review of the entire record also considers whether there are no mitigating factors sufficient to preclude the imposition of the death sentence. There is no indication whatsoever that, in this case or any other, our scrutiny of the record and of the propriety and proportionality of the sentence imposed will not be as vigorous and as observant of constitutional principles as it is required to be.

As to the written findings of the sentencing authority, it is true they are not statutorily mandated. However, in this case, the transcript of the court’s findings in the sentencing hearing provides this court with as equal an opportunity to review the validity of the findings as would written findings.

In the instant case, we are of the opinion that no prejudicial error was commited at trial and that the sentences imposed by the court for the offenses of aggravated kidnapping and rape are justified. The sentence of death is vacated, pending resentencing, in light of our conclusion that one aggravating factor was erroneously included in the court’s sentencing decision. In all other respects the judgment of the circuit court of Boone County is affirmed.

Affirmed in part and reversed in part; sentence vacated; cause remanded.


source: Caselaw Access Project

author:
MR. JUSTICE CLARK MR. JUSTICE UNDERWOOD,
      MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 52231.
    DISTRICT 141, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Maria A. Stutz, Appellee).

      Opinion filed April 18, 1980.

    Rehearing denied May 29, 1980.

      UNDERWOOD, RYAN, and KLUCZYNSKI, JJ., dissenting.

      Van Duzer, Gershon, Jordan & Petersen, of Chicago (John B. Van Duzer and Horace W. Jordan, of counsel), for appellant.
    Norback, DuRard, Belkin Sc Garcione, Inc., of San Mateo, California (Robert L. Durard, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The claimant, Maria A. Stutz, is the widow of Adolph Stutz, the assistant general chairman of District 141, International Association of Machinists and Aerospace Workers (District 141). Adolph Stutz suffered fatal injuries in an automobile accident on the night of May 6,1976. His widow filed a claim for death benefits with the California Workers’ Compensation Appeals Board on May 19, 1976. This claim was dismissed without prejudice, subject to reinstatement. On July 8, 1976, the claimant filed an application for adjustment of claim under the Illinois Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). The arbitrator denied compensation. On review, the Industrial Commission reversed and awarded compensation to the claimant. The circuit court of Cook County confirmed the Commission’s decision. District 141 appeals directly to this court under Rule 302(a). 73 Ill. 2d R. 302(a).

It was stipulated by the parties that at the time of his death on May 6, 1976, Adolph Stutz held the elective office of assistant general chairman of District 141. Further, it was stipulated that the office of District 141 was located in Burlingame, California. Stutz had an office there and his work was localized there. Stutz was sent to Chicago by the general chairman of District 141 to perform three tasks: to participate in a “Fourth Step Grievance Hearing” against United Airlines on behalf of a union member: to attend class and craft hearings at the request of an official of the International Association; and, to begin to negotiate an agreement with United Airlines on behalf of certain communication workers. Stutz’ attendance at the class and craft hearings would primarily benefit the International. His participation in the grievance hearing and the negotiations with United Airlines were both tasks to be performed for the benefit of District 141. The negotiations were to begin on May 7, 1976, the day after the fatal accident occurred.

On May 6, 1976, at about 5 p.m., Stutz met with Alfred Carmona, a Local 1487 official; Elton Barstead, an International official; and J ames High saw, an attorney for the International. Earlier that day Stutz had attended the grievance hearing and the class and craft hearings. The meeting was requested by Barstead to discuss the class and craft hearings. The meeting took place in a restaurant and lounge which was adjacent to the hotel where Barstead and Highs aw were staying. Other union business was also discussed at this time.

The uncontradicted testimony of both Barstead and Carmona was that Stutz was drinking alcoholic beverages during these meetings, as were the other persons. Carmona also testified that he could not remember what happened from 6:30 p.m. onward until he woke up the next morning in the hospital.

Barstead testified that he had seen Stutz in Chicago on union business on 20 or 30 occasions. He also testified that he and Highsaw left Stutz and Carmona in the bar at 7 p.m. When Barstead returned at 9 p.m., Stutz and Carmona were still there. Barstead stated he discussed some additional union business before leaving Stutz and Carmona at 10:15 p.m. Barton Kendall, a United Airlines employee who was acquainted with Carmona, testified at the arbitration hearing that he observed Carmona and a man he later learned was Stutz, leaving the bar at 11 p.m. Kendall stated they looked as though they had been “whooping,” and “living it up.” Stutz and Carmona got into Carmona’s car, with Stutz driving. They left the parking lot, ascended an inclined overpass and, as they crested the overpass, struck a Department of Highways truck which was proceeding in the far left lane at 2 to 3 miles per hour. The truck had a flashing yellow light and a large arrow attached to the rear of the truck pointing to the right. Stutz was pronounced dead on arrival at the hospital. Carmona suffered only minor injuries.

The first issue we consider is whether the Commission possessed subject matter jurisdiction to hear this matter. District 141 contends that when the claimant filed her claim in California, she elected her remedy and may not pursue relief in Illinois. The applicable Illinois statutory provision states:

“An employee or his dependents under this Act who shall have a cause of action by reason of any injury, disablement or death arising out of and in the course of his employment may elect to pursue his remedy in the State where injured or disabled, or in the State where the contract of hire is made, or in the State where the employment is principally localized.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2).)

Clearly the language of the Act is permissive in allowing the claimant to file a claim in any of the three forums mentioned. Our inquiry becomes whether a claimant who files a claim where the employment is principally localized, and then dismisses it, elects her remedy and is thereby precluded from filing a claim in another jurisdiction. The prevailing law in Illinois on election of remedies was set forth in Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill. App. 2d 204, 211:

“ ‘The formal doctrine of election of remedies by judicial decision has been confined gradually to its true remedial purpose as a doctrine of substance; and as stated by an eminent authority on trusts and trustees, should be confined to cases “where (1) double compensation of the plaintiff is threatened or (2) the defendant has actually been misled by the plaintiff’s conduct or (3) res adjudicata can be applied.” Bogert, Trusts and Trustees, 1935 Vol.IV, sec. 946.’ ”

(Accord, Altom v. Hawes (1978), 63 Ill. App. 3d 659, 663; Schwartz v. City of Chicago (1974), 21 Ill. App. 3d 84, 94.) There is no threat of double compensation on this record; District 141 has not been misled by the claimant’s acts; and there has been no decision rendered in the California proceeding which would invoke the doctrine of res judicata. Thus, the claimant has not elected a remedy to the extent required by Illinois law so as to prevent the Commission from exercising jurisdiction over her claim.

District 141 next contends that the claimant is not entitled to receive an award because Adoph Stutz was an elected union official and not an employee of the union. It is argued by District 141 that the “dual capacity doctrine” (B. W. Sales Co. v. Industrial Com. (1966), 35 Ill. 2d 418, 420) should apply to prevent the payment of compensation because Stutz was an elected officer of the union engaged in official duties and not an employee. This court adopted the dual-capacity doctrine in Stevens v. Industrial Com. (1931), 346 Ill. 495. There a printer who was also the secretary-treasurer and a 48% shareholder of a corporation was killed when struck by an automobile while returning from collecting a business debt. The court held that if one is acting in his official capacity as an executive manager of a company and is not doing the work of an employee, he is not covered under the Workmen’s Compensation Act. (Stevens v. Industrial Com. (1931), 346 Ill. 495, 500.) The claimant-widow in Stevens was allowed compensation on account of the death of her husband. It was said that the decedent had not been acting in his official capacity as secretary-treasurer but as an employee when he left his office and endeavored to collect an account due from a debtor.

The definition of an employee under our Workmen’s Compensation Act is in pertinent part:

“Every person in the service of another under any contract of hire, express or implied, oral or written, including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois, persons whose employment results in fatal or non-fatal injuries within the State of Illinois where the contract of hire is made outside of the State of Illinois, and persons whose employment is principally localized within the State of Illinois, regardless of the place of the accident or the place where the contract of hire was made, and including aliens, and minors who, for the purpose of this Act are considered the same and have the same power to contract, receive payments and give quittances therefor, as adult employees.” Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2).

The dual-capacity doctrine ostensibly prevents officers, directors or shareholders from claiming compensation when the corporate form is disregarded to the extent that the person becomes his own employer. (B. W. Sales Co. v. Industrial Com. (1966), 35 Ill. 2d 418, 421.) However, under the dual capacity doctrine “an officer, director or stockholder will not be denied compensation merely because he is an officer, director or stockholder, if, as a matter of fact, at the time of his injury he is engaged in manual labor or the ordinary duties of a workman and receives pay in the capacity of an employee, or if he was engaged in employment palpably separate and distinct from the official duties falling upon him as an officer of the corporation.” B. W. Sales Co. v. Industrial Com. (1966), 35 Ill. 2d 418, 420. Set Master Leakfinding Co. v. Industrial Com. (1977), 67 Ill. 2d 517 (sole shareholder found to be employee).

In any event, we think that the dual-capacity doctrine has no equivalent application to union officials. They are elected or hired to work for the union. In return, they are paid a salary fixed by the union’s bylaws. While the nature of the work is executive, that fact does not remove officials from protection under the Act. “The [A] ct applies automatically not only to the corporation but to all its employees, regardless of the kind of work in which they may be engaged. [Citations.] ” (Stevens v. Industrial Com. (1931), 346 Ill. 495, 498.) The most significant fact, however, is that a union official does not own any shares or any other interest in the union, nor does he exercise absolute control over its operation. A union official is employed for a specified term by the union membership. He is responsible to them and must act for their sole benefit. Thus, the dual-capacity doctrine does not apply in this case. Stutz was an employee of District 141.

The next issue raised by District 141 is whether Stutz was an employee of District 141 or of the International Association, the parent union. The Commission found that Stutz was an employee of District 141, and we will not disturb its findings unless they are against the manifest weight of the evidence. (Parro Construction Corp. v. Industrial Com. (1970), 45 Ill. 2d 367, 371.) In Parro, a consolidated case, two employees were killed in an airplane crash while on a business trip. Even though each of the decedents performed work for other, related corporations, the Commission found that they were employed by Parro Construction Corporation alone. This court refused to disturb those findings.

Stutz was in Chicago at the request of the general chairman of District 141. While one of the three tasks he was to perform was directly beneficial to the International Association, that is not to say it was not also of benefit to District 141. Moreover, the other two tasks Stutz was to perform were for the express benefit of District 141. Finally, though Barstead, the International Association official, testified that the conversations in the bar involved International Association business in the main, Camora testified that he could recall discussing local union business with Stutz prior to 6:30 p.m. The Commission’s finding that Stutz was an employee of District 141 at the time of his death was not against the manifest weight of the evidence.

District 141 next contends that Stutz’s fatal accident did not arise out of and in the course of his employment. We do not agree. It is undisputed that Stutz was a traveling employee and, as such, his fatal injuries may be compensable even though he might have been engaged in activities other than those he was specifically instructed to perform by his employer. (Wright v. Industrial Com. (1975), 62 Ill. 2d 65, 69.) With regard to traveling employees this court has set down the following rule:

“The Workmen’s Compensation Act was not intended to insure employees against all accidental injuries but only those which arise out of acts which the employee is instructed to perform by his employer; acts which he has a common law or statutory duty to perform while performing duties for his employer [citations]; or acts which the employee might be reasonably expected to perform incident to his assigned duties. [Citations.] ” (Ace Pest Control, Inc. v. Industrial Com. (1965), 32 Ill. 2d 386, 388; David Wexler&Co. v. Industrial Com. (1972), 52 Ill. 2d 506, 510.)

Moreover, “ [w] hether an injury to a traveling employee arises ‘out of and in the course of’ his employment and is therefore compensable is to be determined, as we indicated in Ace Pest Control [(1965), 32 Ill. 2d 386,] by the reasonableness of the conduct in which the employee is engaged at the time of injury. *** In the final analysis, the result depends upon the reasonableness of the specific conduct and whether it might normally be anticipated or foreseen by the employer ***.” [U.S. Industries v. Industrial Com. (1968), 40 Ill. 2d 469, 474-75.) In U.S. Industries this court concluded that a “midnight pleasure drive in unfamiliar, mountainous terrain” was an “unanticipated, unforeseeable and unreasonable activity” not arising out of or in the course of the claimant’s employment. (40 Ill. 2d 469, 475.) The instant case is decidedly different in that Stutz had been about his employer’s business throughout the evening, albeit while engaging in socializing as well. At the time of his fatal accident Stutz was heading in the direction of his motel. Carmona, the passenger and owner of the car, lived in the opposite direction. It could reasonably be inferred by the Commission that Stutz and Carmona were driving to Stutz’ motel. It was certainly reasonable, foreseeable and incidental to his employment for Stutz to return to his motel for the night via a highway. The fact that Stutz was driving Carmona’s car cannot be said to be either unreasonable or unforeseeable so as to warrant substituting our judgment for the Commission’s. A similar case is Bradford Supply Co. v. Industrial Com. (1971), 50 Ill. 2d 190. The claimant was a traveling employee who, in the course of conducting business, consumed five or six beers in a four- or five-hour period. Several hours later the injured claimant was discovered in the driver’s seat of his automobile, in a culvert to the side of a highway. The car had been proceeding in the direction of the claimant’s home, which was 180 miles from the town he had left. This court refused to disturb the finding of the Industrial Commission that the claimant’s injuries were received on his journey back home and did arise out of and in the course of his employment. (50 Ill. 2d 190, 194-95.) We think the same principle should control here. Thus we conclude that Stutz’ accidental death arose out of and in the course of his employment.

The final contention made by District 141 is that Stutz was intoxicated at the time of the fatal accident. As a threshold issue, it is argued by the claimant that the decedent’s blood-alcohol count of 186 milligrams per cent was not admissible at the arbitration hearing pursuant to section 10(e) of the coroner’s act (Ill. Rev. Stat. 1975, ch. 31, par. 10(e)). That section provides in pertinent part:

“In cases of accidental death involving a motor vehicle ***, the coroner shall require that a blood specimen of at least 10 cc. *** be withdrawn from the body of the decedent [and analyzed] ***. *** The results of the statistical examinations referred to in this paragraph shall not be admissible in evidence in any action of any kind in any court or before any tribunal, board, agency or person, but shall be used only for statistical purposes.” Ill. Rev. Stat. 1975, ch. 31, par. 10(e).

District 141 rejoins that the results of the blood-alcohol analysis were admitted into evidence pursuant to a stipulation made by the parties, and thus is binding on the parties. Additionally, District 141 argues that the claimant may not raise an objection to the admission of the test result for the first time on appeal; any error has been waived. We agree. The claimant refers ús to the case of Swank v. Bertuca (1976), 41 Ill. App. 3d 229, where the appellate court held that a stipulation that all objections must be made at the time of the taking of an evidence deposition or not at all would not operate to waive the objections to the admission of a blood sample from the decedent. The decedent therein had been killed in an automobile accident after leaving the defendant’s bar. The decedent’s personal representative brought a dramshop action arguing he was intoxicated at the time of the accident. A deposition was taken from a chemist employed by the Illinois Department of Public Health. The defendant made a motion in limine to suppress the chemist’s finding as a result of taking the blood sample, citing section 10(e) of the coroner’s act. The trial court granted the motion and the appellate court affirmed. It stated: “[A] litigant may not stipulate or waive a right which in fact would result in the compromise of a public policy. (People ex rel. Scott v. Janson (1974), 57 Ill. 2d 451, 312 N.E.2d 620.) Courts will not acknowledge a stipulation which is contrary to public policy. We believe that no litigant can stipulate away, either intentionally or inadvertently, the mandate of section 10 of the Coroner’s Act.” (Swank v. Bertuca (1976), 41 Ill. App. 3d 229, 232.) While the appellate court’s holding is correct, we note that it affirmed the trial court’s exclusion of the blood-analysis result by means of a pretrial motion. Here, Stutz’ blood-alcohol count has already been admitted in proceedings before the arbitrator, the Commission and the circuit court. If the claimant had objected to the admission of the blood-alcohol test prior to its admission into evidence, as in Swank, her point would be well taken. However, the claimant agreed to the admission into evidence of the test result and did not object to its admission until this appeal. “A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge objections which might have been obviated if made at the trial.” (American Car & Foundry Co. v. Industrial Com. (1929), 335 Ill. 322, 332; David Wexler & Co. v. Industrial Com. (1972), 52 Ill. 2d 506, 509 (objection raised for the first time on appeal that a statement in a deposition violated the hearsay rule and the Dead Man’s Act).) Thus, the claimant’s objection is waived.

In order for compensation to be denied on the basis that an employee was intoxicated, “the employee must be so intoxicated, as shown by the evidence, that the court can say, as a matter of law, that the injury arose out of his drunken condition and not out of his employment. (Frith v. Owners of Steamship Louisianian, 2 K. B. 155; 5 B. W. C. C. 410; O’Brian v. Star Line, 45 Scotch L. T. 935; 1 B. W. C. C. 177.) Whenever an employee is so drunk and helpless that he can no longer follow his employment he cannot be said to be engaged in his employment, and when injured in that condition his injury does not arise out of his employment. But intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation although the intoxication may be a contributing cause of his injury. Our statute was not designed to make contributory negligence of the employee, or a defense of that nature, a bar to his recovery under the Workmen’s Compensation act, where, as in this case, his injury arose out of and in the course of his employment. Alexander v. Industrial Board, 281 Ill. 201.” Hahnemann Hospital v. Industrial Board (1918), 282 Ill. 316, 327; M&M Parking Co. v. Industrial Com. (1973), 55 Ill. 2d 252, 256.

The evidence in this case is conflicting as to whether Stutz was so intoxicated at the time of his accidental death that he could no longer follow his employment. Barstead, the International Association official, testified that until 10:15 p.m., when he left the bar, Stutz was coherent and fully able to discuss complicated union business. Barton Kendall, who observed Stutz and Carmona leaving the bar, testified they were leaning against a wall, one of the men had his arm around the other, and they were “whooping,” and “living it up.” Finally, Michael I. Schaffer, a toxicologist employed by the Cook County Medical Examiner’s office, testified that he could only testify with certainty as to the blood level of alcohol found in Stutz’ body. Schaffer said that any opinion he might venture as to Stutz’ intoxication would be “subjective” and would have to take into account Stutz’ tolerance for the alcohol he had consumed. Schaffer stated further that he was unable to do that since he did not know Stutz’ capacity or tolerance for alcohol consumption. Schaffer did not conduct the blood-alcohol test on Stutz and was not employed by the Cook County Medical Examiner until August 1976, several months after the accident in question.

We will not disturb findings of the Industrial Commission where the Commission has resolved disputed factual questions, drawn reasonable inferences and conclusions, and judged the credibility of witnesses unless they are contrary to the manifest weight of the evidence. (Phelps v. Industrial Com. (1979), 77 Ill. 2d 72, 74-75.) The Commission found that Stutz’ conduct on the night of May 6, 1976, was reasonable and foreseeable and thus arose out of and in the course of his employment. We cannot say that his conduct was otherwise in view of the conflicting evidence regarding the extent of Stutz’ state of intoxication. It is potentially reasonable and foreseeable that a union officer would sit in a lounge and discuss union business with other union officers over several drinks. We cannot say that that behavior is so unreasonable or unforeseeable as to render the Commission’s decision contrary to the manifest weight of the evidence.

Accordingly, for the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

MR. JUSTICE UNDERWOOD,

dissenting:

I agree that a reasonable amount of drinking may be included within the course of employment of one in claimant’s position. When that drinking reaches the degree of intoxication manifested in this record, however, a finding that a resulting injury arises out of and in the course of employment is, in my judgment, contrary to the manifest weight of the evidence. (1A A. Larson, Workmen’s Compensation sec. 34.00 (1979).) I believe the arbitrator in this case correctly denied compensation.

MR. JUSTICE KLUCZYNSKI joins in this dissent.

MR. JUSTICE RYAN,

also dissenting:

The tragic event involved in this case has caused some reluctance on my part to write a dissent and especially to write in the manner which I propose. However, the opinion adopted by the majority compels me to speak out and to do so rather forthrightly. It is difficult to remain silent while my colleagues eliminate from this case the requirement of our Workmen’s Compensation Act that, to be compensable, one’s injury must arise out of and in the course of one’s employment.

I am sure that anyone who studied criminal law under the late Dean Albert J. Harno at the University of Illinois recalls, as I do, the following bit of learning. This trivia must certainly be the theme or text of the majority opinion.

“ ‘Not drunk is he who from the floor, can rise again and drink once more; But drunk is he who prostrate lies, and can neither drink nor rise.’ ” A. Harno, Cases and Materials on Criminal Law and Procedure 194 n.la (3d ed. 1950); Rogers, Drunk, 35 Law Notes 112, 113 (1931).

See also 1A A. Larson, Workmen’s Compensation sec. 34.10, at 6-62 (1979).

The majority opinion, with its recitation of accepted holdings concerning traveling employees and concluding that Stutz was in the course of his employment because it “was certainly reasonable, foreseeable and incidental to his employment for Stutz to return to his motel for the night via a highway” (79 Ill. 2d at 555) must have been written with tongue in cheek. It certainly was not reasonable or foreseeable (at least reasonably foreseeable) to conclude that he would be driving someone else’s car in a highly intoxicated condition and would run into the rear of a maintenance vehicle with its warning devices in operation.

The record discloses that the employee was drunk! Regardless of how the opinion tries to rationalize his conduct or gloss over this fact, he was so intoxicated he came close to qualifying within the definition quoted above. The evidence shows that he was drinking in the same lounge at least from 5 p.m. until 11 or 11:30 p.m. When he and his companion were leaving the lounge, they were talking in loud voices and were described as “whooping it up.” A witness who observed Stutz and his companion as they were leaving the lounge, and just minutes before the fatal accident, stated that they appeared to have been drinking. The witness saw the two of them leaning against the front of the building, and as they attempted to walk away from the building to their vehicle, they were so unsteady they were holding on to each other. Stutz undertook to drive his companion’s vehicle, and the companion, for some reason, got into the rear seat of the vehicle, or at least he was found in the rear seat following the collision. A short distance after leaving the lounge parking lot, Stutz drove the automobile into the rear of a highway maintenance vehicle, a dump truck. This vehicle was not blocking the highway. It was proceeding in a southerly direction, as was Stutz. There were multiple lanes for traffic in each direction. The maintenance vehicle was driving south in the inner lane next to the median. All of its lights were in operation, including a revolving yellow light on the top of the truck which a witness estimated to have been about 8 feet above the ground. There was a large orange sign on the rear of the truck, and the witness who had left the lounge parking lot just ahead of Stutz testified that, when he passed the truck, it had a large lighted yellow arrow mounted on it directing cars to pass on the right. The witness could not remember whether or not the arrow was flashing, but he did state that it was lighted and it was between 3 and 6 feet in size. The car Stutz was driving left no skid "marks on the pavement, indicating that the brakes had not been applied prior to impact. The employee’s blood alcohol content was 186 milligrams or .186% of alcohol by weight. The Illinois Vehicle Code provides that a blood analysis of .05% to .10% may be considered as evidence, along with other competent evidence, in determining whether a person was under the influence of intoxicating liquor. But if there was, at the time of the analysis, .10% or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor. (Ill. Rev. Stat. 1975, ch. 95½, pars. 11 — 501(c)(2), (3).) In this case, the analysis showed that the employee’s blood contained substantially more than is required to raise the presumption of intoxication.

Admittedly, intoxication alone does not necessarily constitute a departure from employment sufficient to preclude recovery under the Workmen’s Compensation Act. However, voluntary intoxication which renders an employee incapable of performing his work is a departure from the course of employment. (See 1A A. Larson, Workmen’s Compensation sec. 34.00 (1979).) And when the employee is injured in that condition, his injury does not arise out of his employment. M & M Parking Co. v. Industrial Com. (1973), 55 Ill. 2d 252, 256.

In our case the only conceivable act pertaining to the employee’s employment which he was performing at the time of the accident was the act of returning to his motel. This could be considered as being in the course of his employment only because of his status as a traveling employee. He did not take a taxi or attempt to acquire any other safe means of transportation. Instead, he undertook to drive his companion’s automobile, an act which his intoxication rendered him totally incapable of performing, and an act which the law prohibited him from performing. There is no evidence that the collision with the rear of this well-lighted truck, with its many warning devices, had any causative origin other than the undisputed intoxicated condition of the employee.

The majority does not find otherwise, but instead states that “[t] he evidence *** is conflicting as to whether Stutz was so intoxicated at the time of his accidental death that he could no longer follow his employment.” (79 Ill. 2d at 558.) The record does not support this statement. The only evidence that could possibly support the conclusion as to conflicting evidence in the majority opinion was a statement by a person who had, himself, been drinking with Stutz from 5 p.m. to 7 p.m., and again from 9 p.m. until about 10 p.m. That person said that when he left Stutz about 10 p.m., he was of the opinion that Stutz had not been drinking “excessively.” That observation was made an hour and a half before the accident, and the witness admitted that he, himself, had consumed “about four or five drinks” during the evening. Whatever Stutz’s condition may have been at 10 p.m. is not evidence of what his condition was after another hour or more of drinking when he drove an automobile into the rear of the plainly marked maintenance vehicle. Anyone who acted as Stutz did at the lounge, whose blood alcohol content was .186%, and who ran into the rear of a plainly marked maintenance vehicle, under the conditions noted above, was plainly too intoxicated to drive an automobile. The accident could be attributed to no other cause.

It is well established that the Workmen’s Compensation Act must be liberally construed to accomplish its purposes and objects. (Pathfinder Co. v. Industrial Com. (1976), 62 Ill. 2d 556, 563.) However, rational boundaries must be defined to establish the limits of compensable recovery. Otherwise this court will not be reviewing workmen’s compensation decisions relating to injuries arising out of and in the course of employment but, instead, will simply be approving the distribution of charitable awards, the making of which, regardless of our sympathies, is not the purpose of the Workmen’s Compensation Act.