text:
    (No. 51266.
    ROBERT BOYD WEST, Appellant, v. EVELYN LUCILLE WEST, Appellee.

      Opinion filed May 24, 1979.

      Monroe, Wilson, Dyar, Houchen, McDonald & Taylor, of Decatur (Vernon H. Houchen, of counsel), for appellant.
    Tenney & Tietz, of Decatur (Harold F. Tenney, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The plaintiff, Robert Boyd West, filed a complaint for divorce against the defendant, Evelyn Lucille West, in the circuit court of Macon County. The complaint was filed February 9, 1976, under the Illinois Divorce Act (Ill. Rev. Stat. 1975, ch. 40, pars. 1 to 21.4), which was then in effect, but was repealed effective October 1, 1977. After a bench trial the circuit court entered a judgment of divorce, and the defendant appealed to the Appellate Court for the Fourth District, which reversed the judgment and remanded the cause (62 Ill. App. 3d 963). We granted the plaintiff’s petition for leave to appeal.

The appellate court held that this case was governed by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101 to 802), which was approved on September 22, 1977, and became effective October 1 of that year. The court reversed the judgment below because the circuit court had made no finding that one of the grounds for dissolution of marriage prescribed by section 401(2) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(2)) existed “without cause or provocation” by the plaintiff.

The complaint sought a divorce on the grounds of constructive desertion and extreme and repeated mental cruelty. The defendant’s answer alleged that any acts of mental cruelty had been provoked by acts of adultery committed by the plaintiff. The latter were also alleged as an affirmative defense of recrimination, and as a basis for a counterclaim seeking separate maintenance. In awarding the plaintiff a divorce the circuit court also denied the counterclaim.

The case was tried in 1977. The presentation of evidence was concluded on May 10. The trial court did not announce a decision from the bench, but on July 15, after the submission of briefs, the court filed a signed document, captioned “memorandum,” which granted a divorce to the plaintiff, and made provisions for child custody, alimony, and various items of property held by the parties. Custody of a minor child bom to the parties was awarded to the defendant, and the plaintiff was directed to pay $50 a week in support. The plaintiff was directed to pay the defendant $900 per month as alimony. The court directed that the marital residence and its contents be sold, the proceeds to be divided equally between the parties. The defendant was directed to reconvey to the plaintiff an undivided half interest which she had been given in certain income-producing property owned by the plaintiff. The plaintiff was also ordered “to pay reasonable attorney fees to the defendant’s counsel subject to hearing to establish said sum.”

The memorandum recited that the plaintiff’s complaint for divorce was “established by more than a preponderance of the evidence,” but it did not specify on which ground the divorce was granted, and no reference was made to the element of provocation. The memorandum closed with the statement, “See judgment of divorce to be filed in conformity with the findings expressed herein.”

A judgment for divorce was entered by the circuit court on November 2, 1977. That judgment found that the defendant had been guilty of extreme and repeated cruelty toward the plaintiff. No finding was made on the charge of desertion or on the issue of provocation. The judgment contained the same dispositional provisions as those of the memorandum, except that the amount to be paid to the defendant’s counsel was now specified as $6,000.

The defendant filed a timely motion to vacate the judgment, alleging that the action was governed by the new act, and that the judgment was contrary to sections 503 and 504 thereof (Ill. Rev. Stat. 1977, ch. 40, pars. 503, 504). Those sections relate to the disposition of property and to maintenance, the term used in the new act for what was formerly called alimony. The court heard oral argument on the motion to vacate, on which briefs by each party were also submitted, and on January 4, 1979, the court denied the motion.

The docket entry of the order denying the motion was:

“Experienced and effective attorneys have thoroughly and exhaustively tried this case on its merits. The Court reviewed the authorities, studied the copious record and decided the issues pursuant to rules in effect at the time of trial; granted a divorce to the plaintiff and equitably divided the property accumulated during coverture on June 15, 1977. The fact that defense counsel procrastinated for many weeks before approving the decree as to form does not disturb a chancery decision. Post trial petition for relief denied.”

On January 12, 1978, the defendant filed a timely notice of appeal from the judgment of November 2 and from the order denying the motion to vacate.

The reference made by the circuit court to procrastination by the defendant’s counsel is presumably based on statements made by counsel for the parties in their briefs and in oral argument on the motion to vacate, for no evidentiary hearing was held on this matter. To summarize those statements, counsel for the plaintiff represented that after receipt of the July 15 memorandum he prepared a draft order and forwarded it on August 8 to counsel for the defendant for the purpose of obtaining a dollar figure for the award to the defendant of attorney’s fees. The plaintiff’s counsel stated that the defendant’s attorney did not return the revised draft until October 25, at which time the plaintiff’s counsel forwarded it to the trial judge for signature. The order when presented for entry bore the notation “approved as to form” over the signature of the defendant’s counsel.

Counsel for the defendant did not disagree with this account, but he denied having had any intent to delay entry of a judgment in order to benefit his client, stating that it was not until September 30 that he had even become aware that the existing divorce act was about to be repealed. The responsibility for having a judgment order entered is ordinarily that of the prevailing party, as counsel for the plaintiff admitted. The plaintiff does not claim, and the record before us does not establish facts which would prove that the defendant was estopped to assert the applicability of the Act. (See Schmidt v. Cenacle Convent (1967), 86 Ill. App. 2d 150, 157.) We are of the opinion, however, that the rendition by the trial court of dispositive findings on the issues involved in the defendant’s appeal, with no contention of a subsequent change in conditions, is relevant to a determination whether the present act is applicable here.

As enumerated in the opinion of the appellate court, the defendant raised three issues on her appeal, viz., the applicability of the Act, the insufficiency of the evidence to establish a ground for divorce, and the incorrectness of the circuit court’s rulings on child support, alimony, and property. With respect to the first issue the appellate court agreed with the defendant that the Act was applicable. The court did not reach the third issue.

With respect to the second issue the court held that the judgment was deficient since it contained no finding of a lack of provocation on the part of the plaintiff, which the appellate court deemed to be a requisite under the new act. In oral argument the defendant conceded that such a finding was implicit in that the court had entered a judgment of divorce in favor of the plaintiff. The issue of provocation was raised by both the answer and the counterclaim, and we agree that here no specific separate finding on that issue was necessary. Cf. Smith v. Smith (1977), 47 Ill. App. 3d 583, 586; Schubert v. Schubert (1978), 66 Ill. App. 3d 29, 31.

The defendant’s notice of appeal, however, sought a new trial on all issues raised by the pleadings. The appellate court stated that its holding did not preclude the plaintiff on remand from “presenting evidence of an absence of cause or provocation.” (West v. West (1978), 62 Ill. App. 3d 963, 965.) While the appellate court did not pass upon the other questions raised by the defendant as to the sufficiency of the evidence, those issues were preserved in a stipulation entered into between the parties in this court. The holding by the appellate court that this case is governed by the new act thus leaves open for redetermination on a new trial each issue on which the defendant claimed that the evidence was insufficient.

Section 801 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 801) provides:

“(a) This Act applies to all proceedings commenced on or after its effective date.
(b) This Act applies to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered. Evidence adduced after the effective date of this Act shall be in compliance with this Act.
(c) This Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.
(d) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal.”

It is the defendant’s position that for purposes of section 801(b) a judgment was not entered here until November 2 by virtue of the provisions of Rule 272 (58 Ill. 2d R. 272). The latter provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

Relying on Davidson Masonry & Restoration, Inc. v. J. L. Wroan & Sons, Inc. (1971), 2 Ill. App. 3d 524, the defendant argues that the statement in the July 15 memorandum opinion, “See judgment of divorce to be filed in conformity with the findings expressed herein,” means that the memorandum itself cannot be regarded as a definitive decision in any regard.

The committee comments to Rule 272, however, make clear that the purpose of this rule was to resolve the difficulties which had arisen regarding the timeliness of an appeal where an oral announcement of judgment from the bench antedated the entry of a written judgment order. The Davidson case and other decisions of the appellate court deal with Rule 272 in this context. See, e.g., Grissom v. Buckley-Loda Community Unit School District No. 8 (1973), 11 Ill. App. 3d 55; Green v. Green (1974), 21 Ill. App. 3d 396.

Timeliness of appeal is not an element in the present case. The question here is whether issues on which the presentation of evidence has been completed and on which the trial court has rendered a written decision may or must be retried under the substantially different standards of a later enactment. Decisions under the Marriage and Dissolution of Marriage Act have recognized that, where an appeal has been perfected prior to the effective date of that act, “[a]pplication of the new act to cases already decided at the trial level would not only be grossly unfair to one of the parties, it would also create an intolerable burden on the judicial system, requiring a court of review to decide issues without the benefits of vigorous advocacy attendant to a hearing on the merits or an initial determination by a trial court.” (McArdle v. McArdle (1977), 55 Ill. App. 3d 829, 833.) In Sommer v. Borovic (1977), 69 Ill. 2d 220, 239 (supplemental opinion on denial of rehearing), the same reasoning underlay the holding that the new act was inapplicable to a petition for original writ of mandamus after proceedings in the trial court had terminated. And in Staub v. Staub (1978), 67 Ill. App. 3d 1004, where a post-trial motion was filed after the effective date of the new act, the appellate court stated:

“In our estimation, the legislature attempted through section 801(b) to allow only those issues which had not been fully litigated prior to the effective date of the new act to be decided under the new law. It is not this section’s intent to require the relitigation of issues already decided under the previous law simply because post-trial motions are pending or filed after the effective date of the new act.” 67 Ill. App. 3d 1004, 1007.

While the specific amount of attorney’s fees was not fixed by the court’s written decision of July 15, 1977, the substantive issues of marital status, alimony, and custody and support of minor children had been litigated and were determined at that time.

We are not called upon here to decide whether the defendant, consistently with Rule 272, could have prosecuted an appeal from the memorandum decision of the circuit court. We hold only that under the unusual circumstances of this case it was error for the appellate court to reverse the judgment of the circuit court and remand the cause for consideration under the Illinois Marriage and Dissolution of Marriage Act. The judgment of the appellate court is therefore reversed, and the cause is remanded to that court with directions to consider, under the Elinois Divorce Act, the remaining issues.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE KLUCZYNSKI

license: Public Domain

text:
    (No. 50935.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHRISTOPHER MANNING, Appellee.

      Opinion filed June 1, 1979.

      William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Orisha Kulick, Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., and Martin N. Ashley, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, for the People.
    Michael J. Rosborough, Deputy Defender, and John H. Reid, Assistant Defender, of Mt. Vernon, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

The issue here is whether the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1001 — 1—1 et seq.) granted defendant a statutory right to request a jury at the hearing to reexamine his fitness to stand trial. The hearing in question was held prior to defendant’s second trial.

Defendant, Christopher Manning, was indicted for armed robbery, was adjudged fit to stand trial, and was convicted of the offense charged following a jury trial in the circuit court of St. Clair County. After conviction, defendant requested and was given another fitness hearing; based on the psychiatric testimony presented, the trial court vacated the verdict and declared defendant incompetent to stand trial. (See People v. Murphy (1978), 72 Ill. 2d 421, 430; People v. Speck (1968), 41 Ill. 2d 177, 206; People v. Barkan (1970), 45 Ill. 2d 261, 263.) Defendant was further found to be in need of medical treatment and was committed to the Department of Mental Health. While defendant was in the custody of the Department, a hearing was held pursuant to the Mental Health Code of 1967 (Ill. Rev. Stat. 1975, ch. 9H/2, par. 1 — 1 et seq.) at which it was determined that defendant was not in need of treatment. Defendant was ordered released to the sheriff of St. Clair County to be held for further proceedings.

Prior to his second trial, defendant’s counsel moved for a jury hearing on the question of defendant’s fitness to stand trial. The trial court denied defendant’s request for a jury and, following a hearing, adjudged defendant fit to stand trial. Defendant was again convicted of armed robbery by a jury and was sentenced to a term of 5 to 15 years’ imprisonment. The appellate court reversed on the grounds that defendant had a statutory right to a jury determination of his restoration to fitness and remanded for a new trial. (61 Ill. App. 3d 558.) We allowed the State’s petition for leave to appeal.

We hold that defendant had no statutory right to request a jury at the hearing to reexamine his fitness to stand trial. This conclusion is mandated by the language of section 5 — 2—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—2(b)) which provides for hearings to reexamine findings of unfitness but makes no provision for juries at such hearings. Our conclusion is supported further by an examination of all the other statutory provisions applicable to fitness determinations, by the council commentary to section 5 — 2—2(b), by an analysis of the predecessor statute to section 5 — 2—2(b), and by the cases interpreting that prior statute.

Any right the defendant argues he has to a jury at the hearing to reexamine his fitness to stand trial must find its source in the statute, since there is no constitutional right to a jury at such proceedings (People v. Brown (1969), 43 Ill. 2d 79, 81; People v. Shadowens (1969), 44 Ill. 2d 70, 72). In determining whether the legislature intended to confer such a right, the primary source to be examined is the statutory language. People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 369.

Section 5 — 2—2(b) sets forth the procedure for judicial reexamination of a defendant’s fitness to stand trial. It provides:

“A defendant hospitalized under this Section shall be returned to the court not more than 90 days after the court’s original finding of unfitness, and each 12 months thereafter. At such re-examination the court may proceed, find, and order as in the first instance under paragraph (a) of this Section. If the court finds that defendant continues to be unfit to stand trial or be sentenced but that he no longer requires hospitalization, the defendant shall be released under paragraph (a) of this Section on bail or recognizance. Either the State or the defendant may at any time petition the court for review of the defendant’s fitness.” (Ill. Rev. Stat. 1975, ch. 38, par. 1005-2-2 (b).)

That section makes no direct provision for juries at fitness reexamination hearings and, unlike the section it replaced (Ill. Rev. Stat. 1963, ch. 38, par. 104 — 3(c)), makes no cross-reference to the section which sets forth the circumstances under which a defendant may request a jury at his initial fitness hearing (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—1(d)).

Section 5 — 2—2(b) does refer to section 5 — 2—2(a), which provides that once a defendant has been found unfit to stand trial, procedures under the Mental Health Code of 1967 apply. However, as the appellate court correctly noted, the Mental Health Code of 1967 deals with findings of need for mental treatment and the need for hospitalization (Ill. Rev. Stat. 1975, ch. 91%, pars. 9 — 2, 10 — 3) and has no bearing upon determinations or redeterminations of fitness to stand trial. That code comes into play only after the defendant has been found unfit and never applies if the defendant is found fit. It therefore can provide no basis for a conclusion that defendant was entitled to request a jury at his fitness reexamination hearing.

The council commentary is also a proper source for this court to consult in ascertaining the legislative intent (People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, 93; People ex rel. Suddeth v. Rednour (1965), 33 Ill. 2d 278, 283), and an examination of the statements it contains confirms our conclusion that section 5 — 2—2(b) confers upon defendants no right to request a jury at their fitness reexamination hearings. The council commentary to section 5 — 2—2(b) states that “[s] ubsequent re-examination hearings were intended to be heard by the court without a jury even if the original determination of unfitness was made by a jury.” (Ill. Ann. Stat., ch. 38, par. 1005 — 2—2, Council Commentary, at 258-59 (Smith-Hurd 1973).) This indicates that the statutory omission of a reference to a right to request a jury at reexamination hearings was intentional and was meant to prohibit the impaneling of a jury at such hearings.

When a statute is repealed and a replacement statute is adopted, the effect is to completely obliterate the prior statute, and whatever is embraced in the new statute prevails, while whatever is excluded is to be discarded. (People ex rel. Suddeth v. Rednour (1965), 33 Ill. 2d 278, 284.) Bearing these precepts in mind, we have examined the predecessor statute to sections 5 — 2—1 and 5 — 2—2, which the Unified Code of Corrections repealed, effective January 1, 1973 (Ill. Rev. Stat. 1975, ch. 38, pars. 1008 — 5—1, 1008 — 6—1), and have examined the cases interpreting the prior statute. We find that they further support our conclusion that under the current statute defendant had no right to request a jury at his fitness reexamination hearing.

The prior statute, section 104 — 3(c) of the Code of Criminal Procedure of 1963, provided that when reasonable grounds existed to believe that an incompetent had regained his competence, the court was to determine the person’s present mental condition in a hearing conducted “in accordance with this Article.” (Ill. Rev. Stat. 1963, ch. 38, par. 104 — 3(c).) After examining the applicable statutory provisions in their entirety and especially the direction that reexamination hearings be held “in accordance with this Article,” this court held that the statute conferred upon defendants the same right to elect to have a jury decide the issue of their restoration to fitness as they had to elect a jury at their initial fitness hearing. (People ex rel. Suddeth v. Rednour (1965), 33 Ill. 2d 278, 282-83.) The court concluded that section 104 — 3(c) had incorporated by reference the procedures applicable to initial fitness hearings.

When section 5 — 2—2(b) was enacted, it omitted any cross-reference to the provision governing initial fitness hearings and its establishment of a right to request a jury. It is a principle of statutory construction that the General Assembly knows how the courts have interpreted statutes. (Illinois Power Co. v. City of Jacksonville (1960), 18 Ill. 2d 618, 622.) It is also presumed that the General Assembly acted conscientiously and thoroughly. (See Jacobson v. Lenhart (1964), 30 Ill. 2d 225, 227.) It must therefore be presumed that the General Assembly meant to effect a change in a defendant’s statutory right to a jury at fitness reexamination hearings when it repealed former section 104 — 3(c) and omitted from the replacement statute a requirement that reexamination hearings be held “in accordance with this Article,” a phrase this court had interpreted as an incorporation of a right to a jury.

The changes in the provision governing initial fitness hearings also lend support to our conclusion here. The prior section provided that if a doubt as to a defendant’s fitness arose during trial, the proceedings were to be suspended and, at the election of the defendant, a jury was to be impaneled to determine his fitness. (Ill. Rev. Stat. 1963, ch. 38, par. 104 — 2(b).) The present statute disallows a jury determination of the issue of fitness once a trial on the charge has commenced. (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—1(d).) This prohibition is based on the desire to conserve judicial resources and to speed determination of the issue. Ill. Ann. Stat., ch. 38, par. 1005 — 2—1, Council Commentary, at 220 (Smith-Hurd 1973).

Our determination that section 5 — 2—2(b) makes no provision for a request for a jury at fitness reexamination hearings forwards the same purposes as the prohibition of a jury determination once the proceedings have begun, especially in light of the statutory requirement that such proceedings be held yearly at a minimum (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—2(b)). Our determination thus effects the rule of statutory construction that courts should consider the object to be obtained and the consequences which would result from one construction or another (People ex rel. Suddeth v. Rednour (1965), 33 Ill. 2d 278, 282).

This change in the provision governing initial fitness determinations also deflates the effect of language in People ex rel. Suddeth v. Rednour (1965), 33 Ill. 2d 278, 282-83, upon which defendant places great reliance. Rednour stated that it would be inconsistent with the overall purpose of the statute to permit a jury trial in some fitness hearings but not in others. However, the new statute expressly recognizes circumstances under which a jury will be permitted and others in which it is to be prohibited, effectively abrogating that language in the Rednour opinion.

In sum, since any right defendant may have to a jury at his fitness reexamination hearing is purely statutory and since section 5 — 2—2(b) makes no such provision, we hold that defendant had no right to request a jury and that the trial court did not err in refusing to impanel one. Accordingly, the judgment of the appellate court is reversed. The cause is remanded to that court with directions to address defendant’s arguments that he was denied effective assistance of counsel and that his sentence was excessive. These points were raised but not addressed in the appellate court and were not briefed or argued in this court.

Reversed and remanded, with directions.


author: MR. JUSTICE MORAN

text:
    (No. 50865.
    (No. 51021.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LARUE SCHEIB, Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RONALD FERGUSON, Appellant.

      Opinion filed May 24, 1979.

      Mary Robinson, Deputy Defender, and Richard E. Cunningham, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    William J. Scott, Attorney General, of Chicago, C. Joseph Cavanagh, State’s Attorney, of Springfield, and Edward Petka, State’s Attorney, of Joliet (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Robert C. Perry and Jane F. Bularzik, of the State’ Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Michael J. Pelletier, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.

      William J. Scott, Attorney General, of Chicago, C. Joseph Cavanagh, State’s Attorney, of Springfield, and Edward Petka, State’s Attorney, of Joliet (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and Robert C. Perry and Jane F. Bularzik, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Each of these two cases, which we have consolidated for review in this court, involves the application of credit for time served prior to each defendant’s revocation proceeding.

In cause No. 50865, defendant, Larue Scheib, pleaded guilty to burglary and was sentenced by the circuit court of Sangamon County to two years’ probation. The conditions of Scheib’s probation included a $200 fine and separate jail sentences of six weekends and 20 days in jail. The trial court gave Scheib credit for 20 days which he had already served prior to trial. Approximately four months later, Scheib’s probation was revoked pursuant to a trial court’s finding that he had violated his probation by committing arson. The trial court sentenced Scheib on the burglary offense to a prison term of two to six years. The court allowed him credit for 82 days which he had served in jail during the pendency of the probation-revocation and sentencing hearings but refused to credit him for the time served on probation, for the weekends served in the county jail, or for the 20 days of incarceration which had preceded the original trial on the burglary offense.

The Appellate Court for the Fourth District held that Scheib was entitled to credit for the weekends of periodic imprisonment served as a condition of probation but was not entitled to credit for the 20 days he had served prior to the original trial. The court also held that, because periodic imprisonment is to be calculated on the basis of the duration of the term of sentence, Scheib was to be granted credit of one full week for each weekend actually served in jail. (59 Ill. App. 3d 104.) In response to the court’s denial of rehearing, one judge indicated that he would grant credit for the 20 days served in custody. We allowed Scheib leave to appeal.

In cause No. 51021, defendant, Ronald Ferguson, was convicted of criminal damage to property, a misdemeanor, and was sentenced by the circuit court of Will County to a conditional discharge for a period of two years. Ferguson’s discharge was conditioned, in part, upon his serving 120 days in jail. The trial court gave Ferguson credit for 60 days which he had already served prior to trial and suspended the remaining 60-day term. Less than a month later, Ferguson’s conditional discharge was revoked pursuant to a trial court’s finding that he had violated the terms of his conditional discharge by committing robbery. He was sentenced on the misdemeanor offense to a term of 264 days in the Vandalia Correctional Center. The court allowed him credit for 14 days which he had spent on conditional discharge but failed to credit him for the 60 days he had served in custody prior to the original trial.

The Appellate Court for the Third District held that, because Ferguson had already received credit for the 60 days of preconviction incarceration, he was not entitled to credit upon resentencing after revocation of his conditional discharge. (60 Ill. App. 3d 422.) We allowed Ferguson leave to appeal.

The predominant question common to both cases is whether time spent in confinement for a particular offense must be credited to a defendant upon resentencing after revocation of probation or conditional discharge. Two potentially conflicting provisions of chapter V of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 1—1 et seq.) are involved. Section 5 — 6—4(h) of the Code, which section applies to the sentences here involved, provides in pertinent part:

“Time served on probation or conditional discharge shall be credited by the court against a sentence of imprisonment or periodic imprisonment unless the court orders otherwise.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 38, par. 1005-6-4(h).)

This section, applicable generally upon resentencing after revocation proceedings, authorizes the trial court to use its discretion in determining if credit is warranted. On its face, the section might be construed to apply both to time spent unconfined on probation (or conditional discharge) and to time which, though spent in confinement, was considered served as a condition of probation (or conditional discharge).

The Code’s section 5 — 8—7(b), however, provides:

“The offender shall be given credit on the maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 38, par. 1005-8-7(b).)

This section applies, generally, whenever a sentence of imprisonment is imposed, and it requires that credit be given for all time spent in custody for the same offense.

The two statutory provisions are incompatible only if section 5 — 6—4(h) is construed, as the State urges, to apply, upon resentencing after revocation proceedings, to the time actually spent in custody as a condition of probation or conditional discharge.

A cardinal rule of statutory construction ordains that sections in pari materia should be considered with reference to one another so that both sections may be given harmonious effect. (Galvin v. Galvin (1978), 72 Ill. 2d 113, 118; Gillespie v. Riley Management Corp. (1974), 59 Ill. 2d 211, 215; 2A J. Sutherland, Statutes & Statutory Construction secs. 46.05, 51.03 (4th ed. 1973).) It is not a legislative oversight that section 5 — 8—7(b), on the one hand, requires that credit be granted and that section 5 — 6—4(h), on the other hand, permits the denial of credit. In People ex rel. Morrison v. Sielaff (1974), 58 Ill. 2d 91, this court recognized that the legislature intended to distinguish between confinement and lesser forms of restraint for the purposes of applying credit. In holding that a defendant was not entitled to credit under section 5 — 8—7(b) for the time spent out on bail, the court confirmed that section 5 — 8—7(b) requires only that the period during which a defendant is actually confined be credited to the sentence of imprisonment ultimately imposed for the offense. In contrast to section 5 — 8—7(b), section 5 — 6—4(h) does not refer to time spent in confinement. Section 5 — 6—4(h) (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 6—4(h)) now encompasses three specific forms of restraint — probation, conditional discharge and supervision — each a lesser restraint on freedom than confinement. Reading the sections in consort, we conclude that section 5 — 8—7(b) is to apply whenever the time, for which credit is sought, was served in confinement, and that section 5 — 6—4(h) is to apply whenever the time was served unconfined on probation, conditional discharge or supervision. Read in this manner, a defendant must be fully credited for any time which he has spent in jail for a particular offense, regardless of whether the time in confinement was considered served as part of a condition of probation or conditional discharge.

In each of the cases at bar, the defendant spent time in jail prior to trial because of an inability to furnish bail. This jail time was credited against the time which the defendant was to serve as part of the original sentence. Upon resentencing after revocation of the original sentence, however, the trial judge refused to credit the jail time against the sentence of imprisonment for the same offense. Notwithstanding the clear and explicit language of section 5 — 8—7(b), the State contends that credit was properly denied upon resentencing because the jail time had already been credited against the original sentence. The State suggests that a literal reading of section 5 — 8—7(b) would afford a defendant “repeat crediting” for the same time served in jail.

The State’s position has only superficial appeal. The object of mandatory credit under section 5 — 8—7(b) is to account for all the time served in confinement for a particular offense. (Ill. Ann. Stat., ch. 38, par. 1005 — 8—7, Council Commentary, at 514 (Smith-Hurd 1973).) The concept of credit insures that a defendant is never subjected to more total time in confinement for a particular offense upon resentencing than he could have received for the offense in the first instance. When a defendant is credited upon imposition of the original sentence for the time served until then, and then credited upon resentencing after revocation, he is not being given double credit against the ultimate sentence: the time served has merely been carried over to the resentencing proceeding so that it may be properly subtracted once from the sentence he must ultimately serve.

Additionally, the State’s position is wanting for constitutional reasons. Clearly, we do not favor any construction that would raise legitimate doubts as to the constitutional validity of a statutory provision. (Craig v. Peterson (1968), 39 Ill. 2d 191, 201; People v. Nastasio (1960), 19 Ill. 2d 524, 529.) Two situations readily illustrate the constitutional vulnerability of the State’s argument.

In the first, a defendant, unable to post bail, remains in jail for 30 days awaiting trial. Upon conviction of a misdemeanor, he is sentenced to two years’ probation with the condition that he serve 30 days in jail. The 30 days of pretrial incarceration are credited against the original sentence. Upon violation of probation, the defendant is sentenced to the 364-day maximum allowed for a misdemeanor. (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 1—14; Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 5—2(b).) According to the State, credit should not be given for the 30 days spent in confinement because the 30 days had already been credited at the time the original sentence was imposed. The obvious consequence of the denial of credit is that the defendant is subjected to 364 days plus 30 days in confinement for the commission of a misdemeanor, a punishment which exceeds the maximum permitted for such offense. It was just such a consequence that the Supreme Court, in North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072, held to be a violation of the constitutional prohibition against double jeopardy because it constituted multiple punishments for the same offense. We, too, cite the situation because “[t]he constitutional violation is flagrantly apparent in a case involving the imposition of a maximum sentence ***. *** Though not so dramatically evident, the same principle obviously holds true whenever punishment already endured is not fully subtracted from any new sentence imposed.” North Carolina v. Pearce (1969), 395 U.S. 711, 718, 23 L. Ed. 2d 656, 665, 89 S. Ct. 2072, 2077.

In the second situation, a defendant, capable of posting bail, is released pending trial. Upon conviction, he is sentenced to two years’ probation with the condition that he serve 30 days in jail. After trial, he serves the 30 days in jail as part of the original sentence. Thereafter, he violates his probation. According to the State, this defendant, unlike the defendant in the former situation, would be entitled to credit under section 5 — 8—7(b) for the 30 days in jail because he had not yet received credit for it. Yet, in both situations, the defendants had committed identical offenses, received identical original sentences and spent the same amount of time in confinement prior to violating probation. The only difference between the two situations is that, in the former, the defendant had spent his time in jail prior to trial because of an inability to furnish bail. Clearly, no legitimate legislative purpose would be served by creating two such distinct classifications under section 5 — 8—7(b). See Annot., Right to Credit for Time Spent in Custody Prior to Trial or Sentence, 77 A.L.R.3d 182, sec. 4 (1977).

The State raises a final point which pertains only to defendant Scheib. The conditions of Scheib’s probation included a sentence of six weekends in the Sangamon County jail. Scheib had begun to serve this sentence when his probation was revoked. Upon resentencing Scheib to prison for a term of two to six years, the trial court applied section 5 — 6—4(h) and refused to credit Scheib for any of the weekends served in jail. The appellate court reversed. In determining how much credit Scheib should be allowed, the appellate court characterized the weekend sentence as a term of periodic imprisonment (Ill. Rev. Stat. 1975, ch. 38, pars. 1005-6-3(b)(l), 1005-7-1 et seq.) and concluded that Scheib must be granted credit of one full week for each weekend actually served in jail. The State contends that the trial court properly denied the credit and, alternatively, posits that if credit must be granted, it should reflect only the number of weekend days actually spent in jail. We disagree with the State in both respects.

As already concluded, section 5 — 6—4(h) is not controlling when the sentence of probation incorporates a condition which subjects a defendant to periods of actual confinement. When the trial court imposed a sentence of six weekends in jail as a condition of Scheib’s probation, it did so with the express authorization of section 5 — 6—3(b)(1) of the Code. Pursuant to this section, a trial court may require, as a condition of probation, that the defendant be sentenced to a term of imprisonment which is to be served periodically for the duration of its term. (Ill. Rev. Stat. 1975, ch. 38, par. 1005-6-3(b)(l).) The court ordered that Scheib be committed on the weekends for a term of six weeks and released for the interim periods. Section 5 — 7—1(d) of the Code expressly instructs that “[t] he term of the sentence [of periodic imprisonment] shall be calculated upon the basis of the duration of its term rather than upon the basis of the actual days spent in confinement.” (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 7—1(d).) Consequently, though Scheib was to spend only 12 weekend days in confinement, the term of the imprisonment sentence was to run 37 days. Scheib had served only a portion of the term when he was resentenced for violating probation. The Code provides:

“That part of the term, under paragraph (d) of Section 5 — 7—1 which has been served under the sentence of periodic imprisonment shall be credited against a sentence of imprisonment.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 7—2(c).)

This section plainly mandates that the credit to which Scheib is entitled must be determined on the basis of the duration of that portion of the 37-day term which he had served.

Accordingly, the judgments of the appellate and circuit courts in these two causes are reversed insofar as they denied the defendants credit for the terms of their incarceration. The judgments of the appellate and circuit courts in cause No. 50865, and of the circuit court in cause No. 51021, are otherwise affirmed. The causes are remanded to the respective trial courts with directions that the defendants be given proper credit in accordance with the views expressed in this opinion.

50865 — Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part; cause remanded, with directions.

51021 — Appellate court reversed; circuit court affirmed in part and reversed in part; cause remanded.


author: MR. JUSTICE CLARK

text:
    (No. 50576.

      In re WILLIAM WORKMAN et al., Minors (Cynthia Gillion, Appellant).

      Opinion filed June 1, 1979.

      Patrick T. Murphy, of Goldberg & Murphy, of Chicago, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (William R. Ford, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

This case arises under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701 — 1 et seq.). After extensive hearings in the circuit court of Will County, the court found that the appellant, Cynthia Gillion, had abandoned her two minor children and had failed to maintain a reasonable degree of interest, concern or responsibility for their welfare. Accordingly, pursuant to sections l(D)(a) and l(D)(b) of the Adoption Act (Ill. Rev. Stat. 1971, ch. 4, pars. 9.1 — l(D)(a), (b)) the court held Cynthia to be unfit as a parent. Pursuant to section 5 — 9 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 705 — 9), the court terminated her parental rights and appointed a guardian with the power to consent to the adoption of the two minors. (In re Workman (circuit court of Will County, April 5, 1973) No. W72F 372J, appeal dismissed (1975), 38 Ill. App. 3d 261 (Workman I) appeal denied (1976), 63 Ill. 2d 552; cert. denied (1977), 429 U.S. 1038, 50 L. Ed. 2d 749, 97 S. Ct. 734.) Cynthia concedes that she and her counsel were informed in open court, prior to the entry of the decree, that she would have 30 days within which to file an appeal. Cynthia (who had been represented at those hearings by counsel appointed pursuant to section 1 — 20 of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 20)), did not file a notice of appeal from the decision within 30 days, nor did she seek an extension of time, as provided for by Supreme Court Rule 303 (50 Ill. 2d R. 303). Sometime between April and October of 1973, however, Cynthia evidently “retained” the same attorney who had been appointed to represent her. The attorney filed a motion styled “Petition for Rehearing” based upon alleged changed circumstances. Such a “rehearing” did occur, at which time Cynthia assumed the burden of going forward with the proof of “changed circumstances,” but failed to persuade the court. Cynthia’s counsel then filed a notice of appeal from both the original finding of unfitness and its reaffirmation on rehearing.

On appeal, the appellate court dismissed the appeal from the 1973 finding, and affirmed the 1974 finding. (One justice, specially concurring, reasoned that the “rehearing” was improper, because the original finding of unfitness, once final (through failure to appeal), could not be reopened.) (In re Workman (1975), 38 Ill. App. 3d 261 (Workman I).) Cynthia then obtained new counsel, who filed a petition for leave to appeal to this court, which was denied (63 Ill. 2d 552) as was his petition for certiorari to United States Supreme Court (sub nom. Gillion v. Illinois (1977), 429 U.S. 1038, 50 L. Ed. 2d 749, 97 S. Ct. 734). Counsel then filed a new petition in the circuit court, styled “Amended Petition for a Report of the Guardian and for a Restoration of Parental Rights; a Petition for a Writ of Habeas Corpus; and a Petition pursuant to Section 72 of the Illinois Civil Practice Act.” The petition argued (1) that the best interests of the children favored their return to Cynthia and (2) that the 1973 order terminating Cynthia’s parental rights was illegal because Cynthia was not advised of the right to assistance in appealing that order. The petition prayed for a new hearing, or, alternatively, leave to file a notice of appeal from the 1973 order “nunc pro tunc.” The circuit court denied the petition, and the appellate court affirmed (In re Workman (1978), 56 Ill. App. 3d 1007 (Workman II)). Another justice, concurring in part and dissenting in part, urged this court to review the decision to determine whether, once all parental rights have been terminated, a petition for restoration of those rights will lie. We granted leave to appeal, but on oral argument in this court Cynthia’s counsel expressly conceded all issues except that of whether, at the time of its 1973 order, the trial court’s failure to inquire into Cynthia’s indigency and offer her some type of assistance on appeal denied her constitutional rights in such a way as to require a reopening of these proceedings, and possible modification of the order entered in 1973. We need not, however, decide that issue here. See generally, e.g., Annot., 80 A.L.R.3d 1141, 1153-54 (1977). But cf. generally In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 579 (particularly in view of safeguards in the Adoption Act, neither due process nor equal protection required that natural parents be afforded legal counsel prior to consenting to adoption).

We have reviewed the record which led to the 1973 order terminating Cynthia’s parental rights, and we find that order to have been more than amply supported. Cynthia and Robert Workman were married injuly 1967. In January of the following year, Robert entered the army, and in September of that year, Robert was sent to Vietnam. The next month a son, Robert, Jr., was born to the Workmans. In June or July of 1969 Robert, Sr., returned from Vietnam to Ft. Sheridan, Illinois, where he applied for a hardship discharge from the army. He received such a discharge in August 1969, and in June of 1970 a second son, William, was born to the couple. About 17 months later Cynthia and Robert, Sr., ceased living together. Cynthia left the marital home, taking the children with her. In January of the following year (1972) Robert, Sr., filed for divorce. In February 1972, with Cynthia’s consent, the divorce court awarded temporary custody of the children to Robert, Sr., but approximately a week later he asked Cynthia to take care of the children.

Cynthia either was unable or unwilling to retain custody of her children at this time, and, on February 23, 1972, with her consent and that of her husband, the State’s Attorney of Will County petitioned the circuit court of Will County, alleging that William and Robert, Jr., were neglected and ought to be adjudged wards of the court. That same day, the court entered an “emergency” order (1) declaring the minors to be wards of the court, (2) temporarily terminating the parental rights of Cynthia and Robert, Sr. (pending disposition of the cause), (3) appointing the Rev. Joseph Shimanek, executive director of the Catholic Charities of the Diocese of Joliet, or his successor in office, as temporary guardian over the children, and (4) scheduling a hearing on the matter for March 7, 1972.

At the March 7 hearing, Cynthia and Robert, Sr., consented to the entry of an order (1) finding that the best interests of William and Robert, Jr., dictated that they be adjudged wards of the court; (2) appointing Rev. Shimanek or his successor as guardian with authority to place the children in a foster home; (3) directing that Robert, Sr., pay $30 per week toward the support of the minors and Cynthia pay $10 per week; (4) “terminating” the parental rights of Robert, Sr., and Cynthia, and (5) retaining jurisdiction “for the purpose of making such further orders as may from time to time be found in accordance with equity and in accordance with the statute in such case made and provided.”

About two months later, on June 2, 1972, a supplemental petition (dated April 18, 1972) was filed, alleging that Cynthia and Robert, Sr., were “unfit” parents within the meaning of sections l(D)(a) and l(D)(b) of the Adoption Act (Ill. Rev. Stat. 1971, ch. 4, pars. 9.1 — 1(D)(a), (b)), in that they had abandoned their children and had failed to maintain a reasonable degree of interest, concern or responsibility as to their welfare. The court appointed separate counsel for Robert, Sr., and Cynthia (who by then had remarried and was known as Cynthia Totherow), and, on July 24, 1972, a hearing was held on the supplemental petition in the circuit court of Will County. Robert, Sr., consented to the decree requested by the State, and the hearing went forward only with regard to Cynthia.

At the hearing, Robert, Sr., testified that, during the course of his marriage to Cynthia, sometimes he would come home from work at noon or 1 p.m. to find that Cynthia was still in bed and William and Robert, Jr., still were locked in their room and had not been fed breakfast, that Cynthia did not change their diapers frequently enough, that she “constantly” left the children with a baby sitter while she went out socially, and that they seldom received a hot cooked meal. Robert admitted, however, on cross-examination that the children received a hot meal three to four times a week, and that because of both his job and his military service his first-hand knowledge of Cynthia’s treatment of his children was limited. Robert, Sr., also charged, however, that Cynthia had left the children with a sitter on several occasions when she stayed out late with persons other than him, and that, at the time of their divorce, Cynthia told him that she didn’t want temporary custody of the children because they reminded her of him.

Margaret Ward, a social worker from the Catholic Charities of Joliet, testified that Cynthia had visited her sons several times during the period they were in the custody of the Catholic Charities and foster parents, and that on one occasion during that period she had accompanied one of her sons on a visit to a doctor, and on another occasion she brought a birthday gift to one of her sons. Ms. Ward made clear that all visits with children had to be cleared with the Catholic Charities and foster parents. Ms. Ward also indicated that Cynthia’s new husband had been unwilling to assume custody of the children on May 18, but thought that perhaps he and Cynthia would be able to do so by July.

Cynthia herself admitted that her current husband had left her, but that she was hopeful regarding the possibility of reconciliation, and that her mother and a baby sitter would help her to care for the children in the interim. She further admitted that she had sought the assistance of the State’s Attorney in obtaining child support in February 1972. The testimony of other witnesses reveals some concern for her mental health, albeit tempered by sympathy for the traumas she had endured in her family life. It is not at all clear that Cynthia’s stepfather was aware that Cynthia was still married to her second husband, nor is it clear that he would have agreed to have her live in his home with her children (and his own five-year-old child by Cynthia’s mother) had he known this.

In short, there was ample evidence from which the court could and did conclude that the same regretable series of events which had prevented Cynthia from being able to fulfill the responsibilities of parenthood at the time of her original relinquishment of custody had not abated, but had in fact been aggravated by yet another unsuccessful marriage. We know from the record of the “rehearing” that no successful reconciliation was achieved between Cynthia and her husband, and that the circuit court correctly analyzed Cynthia’s prospects for establishing any kind of a stable home life, as she drifted through a succession of jobs and addresses.

It therefore is largely irrelevant to the ultimate disposition of this case that Cynthia did not timely file her notice of appeal from the 1973 order terminating her parental rights, and her reasons for failing to perfect that appeal are equally irrelevant.

For the foregoing reasons, the judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 51181.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DONALD PANUS, Appellee.

      Opinion filed June 8, 1979.

      William J. Scott, Attorney General, of Springfield, and Michael M. Mihm, State’s Attorney, of Peoria (Donald B. Mackay, Melbourne A. Noel, Jr., and Donna Kaner Socol, Assistant Attorneys General, of Chicago, and James E. Hinterlong, of the State’s Attorney’s Appellate Service Commission, of Ottawa, of counsel), for the People.
    Ronald L. Hamm, of Hamm, Hanna & O’Brien, of Peoria, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Donald Panus, was convicted in a jury trial in the circuit court of Peoria County of the offense of burglary (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1(a)) and sentenced to a term of imprisonment of 5 to 15 years. The appellate court reversed and ordered a new trial on the ground that the property taken was not sufficiently identified and that defendant was unduly prejudiced by its admission into evidence (62 Ill. App. 3d 177). We allowed the State’s petition for leave to appeal.

In the latter part of October of 1974, Ronald Garmer placed his Sears Roto-Tiller in a shed approximately 75 yards behind his home at 9824 North Pioneer Parkway, Peoria. On or about April 13, 1975, Garmer went to the shed for the purpose of using the tiller and noticed some evidence of tampering with the shed. Upon entry, he found that the tiller was missing. He then notified the Peoria County sheriff’s office. As a witness for the State, Garmer testified to these facts at trial, and he also stated that he had not given defendant or anyone permission to use the tiller.

Also testifying on behalf of the State was Ronald Herring, a friend of defendant’s son. He related a conversation in which defendant allegedly admitted taking a tiller from Garmer’s property. According to Herring, he, defendant, and defendant’s son passed Garmer’s home one day in an automobile and defendant said that he obtained a tiller from those premises. Herring also testified that he helped defendant in loading a tiller into a van owned by Robert Choate, who purchased the tiller from defendant for $50 in February of 1975.

Detective Michael McCoy also appeared as a witness for the State and testified that, after taking statements from Herring, he went to the home of Choate and recovered the tiller. Deputy Sheriff Robert Cone also briefly testified, stating that he was responsible for transporting the tiller from Choate’s home to a storage area in the sheriff’s office where it was kept under lock until trial.

Defendant does not dispute that the tiller introduced at trial is the tiller that he sold to Choate. His argument is that the State did not sufficiently prove that the tiller belonged to Garmer.

At trial, Garmer identified the tiller as his, pointing out that the paint had burned off the muffler, that the tiller was a Sears model, and that it was at the same depth setting as he used. He further stated that, having owned it for a year, he should recognize it. The State also had attempted to prove that the tiller was Garmer’s by comparing the serial number on the machine with that written on Garmer’s owner’s manual, but there was some evidence that the number was written on the manual after the burglary and the recovery of the tiller. Notwithstanding this defect in the State’s proof, the circuit court admitted the tiller into evidence on the basis of the identifying testimony of Garmer. The court ruled that Garmer’s testimony was proper nonexpert opinion testimony based on characteristics peculiar to the subject of identification, and that it was sufficient to identify the tiller.

After all the evidence was presented and closing arguments were made, the jury deliberated and returned a verdict of guilty. The circuit court entered judgment thereon and sentenced defendant to a term of imprisonment of 5 to 15 years.

The appellate court reversed and in so doing said, “It was incumbent upon the State to prove, along with the other elements of the crime of burglary, that the Sears roto tiller belonged to the owner of the burglarized shed, Ronald Garmer. *** Without adequate proof of ownership of the roto tiller the State failed to prove the corpus delicti of the crime charged.” (62 Ill. App. 3d 177, 181.) Because it felt that the State had not met its burden of proof, it reversed the conviction and ordered a new trial. We disagree with this judgment and accordingly reverse.

The crime of burglary is defined in Illinois as follows:

“A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1977, ch. 38, par. 19-1(a).)

Proof that specifically identifiable property was taken from the burglarized premises is not an essential element of the offense (People v. Iannacco (1957), 11 Ill. 2d 55, 59), as it may be in other cases (see, e.g., Ill. Rev. Stat. 1977, ch. 38, pars. 16 — 1(a) through (d) (theft)), and the State may prove its case without introducing any such evidence. Proof of ownership of property taken may be relevant for other purposes, however, for under our cases the recent unexplained possession of property stolen in a burglary may be relied upon by the trier of fact to infer guilt (People v. Taylor (1962), 25 Ill. 2d 79, 81). Such possession is a relevant circumstance in determining, for example, whether it was defendant that entered the burglarized premises and whether he did so with intent to commit a theft therein. The determinative inquiry as to the question now before us is not, therefore, whether the State has proved an essential element of the crime beyond a reasonable doubt (see, e.g., People v. Johnson (1963), 28 Ill. 2d 441, 442 (intent is an essential element of burglary and must be proved beyond a reasonable doubt)), but whether the stolen property was sufficiently identified and relevant to allow it to be placed before the trier of fact as circumstantial evidence of defendant’s guilt.

Our examination of previous cases satisfies us that if stolen property is positively identified, as here by the victim, the trial judge may admit the evidence if, in his discretion, he determines that it is relevant. The failure to identify the property by way of its serial number is not fatal to the State’s case. (People v. Miller (1930), 342 Ill. 244, 250.) Any such perceived weakness in identification could be emphasized by defendant in arguing that the victim lacked credibility or that his testimony should not be given any weight, but such an alleged defect is not a basis for excluding the evidence. (People v. McCasle (1966), 35 Ill. 2d 552, 559.) Sufficiency of the identification may be judged by other identifying evidence, and the trier of fact makes the ultimate determination of whether it is credible.

Defendant contends, however, that the identification testimony of the victim Garmer was insufficient to establish that the tiller was his because Garmer was unable to identify any characteristics that were peculiar to his tiller. Even if we were to assume, however, that the characteristics relied upon by Garmer in identifying the tiller were common to other tillers, we still would not be convinced that the trial judge abused his discretion in admitting the evidence because we feel that the circumstances sufficiently showed that the tiller was connected with the crime and defendant. (People v. Ashley (1960), 18 Ill. 2d 272, 280.) The evidence presented by the State clearly showed that defendant took a tiller from Garmer’s premises, that defendant sold a tiller to a third party, and that the tiller in the possession of the third party was identified by the victim as his. Even assuming, therefore, that the tiller lacked distinctive features, the trial judge, in his discretion, could determine that a sufficient connection was established to support admission of the evidence. Indeed, our research indicates that distinctiveness is not a sine qua non of admissibility, as our cases have approved of the admission of evidence even though “devoid of distinctive features that would enable it to be readily identified.” (People v. Sellers (1964), 30 Ill. 2d 221, 224.) The key to these cases is whether the circumstances sufficiently connect the property with the crime and the defendant, and, once this is shown, the ultimate determination of the identity of the property rests with the trier of fact (People v. Weaver (1959), 18 Ill. 2d 108, 113). We find no abuse of discretion on the part of the trial judge in determining that the tiller was sufficiently connected with the crime and the defendant.

Nor can we say that defendant’s possession of the stolen property was not sufficiently close in time to the burglary to justify the conclusion that evidence of such possession would be relevant in determining whether defendant committed the crime. In light of the fact that the tiller was stored in late October 1974 and not proved to be in defendant’s possession until February 1975, when he sold it to Choate, the time between burglary and possession could be as great as three or four months. In some circumstances, this might render evidence of possession inadmissible (see, e.g., People v. Taylor (1962), 25 Ill. 2d 79, 81-82 (possession of stolen revolver more than four months after the burglary is not sufficient to raise an inference of guilt)), but, as the Taylor case holds, the character of the property, salability, and the ease with which it is transported must also be considered, and our consideration of these factors leads us to conclude that the trial judge did not abuse his discretion in determining that evidence of defendant’s possession of the tiller would be probative of whether defendant committed the burglary.

Because we have resolved the issue of the admissibility of the tiller in favor of the State, we next address arguments made by defendant in seeking to sustain, on other grounds, the judgment of the appellate court reversing his conviction. Defendant raised four points for reversal in the appellate court, but that court agreed with defendant only that the circuit court erred in admitting the tiller. It either rejected or did not reach the remaining three arguments we now address.

Defendant first contends that the trial judge erred in restricting cross-examination of the State’s witness, Ronald Herring, as to the number of charges filed against the witness and any possible promise of leniency in return for testifying. Defense counsel was attempting to show bias. (See People v. Norwood (1973), 54 Ill. 2d 253.) Herring' was allowed to be asked, however, if he had been charged, and he responded affirmatively. He was also asked if he was promised leniency or threatened, and he responded negatively. In response to later questioning, the witness said that the police officers who took statements from him did say that they would advise the State’s Attorney of his cooperation, but that they could make no promises. We find no abuse of discretion on the part of the trial judge in determining that no need for further inquiry was necessary. Cases cited by defendant involved absolute prohibitions of legitimate inquiries into bias (People v. Rogers (1976), 42 Ill. App. 3d 499) or false representations by the prosecution as to the witness’ arrest record (People v. Galloway (1974), 59 Ill. 2d 158) and are therefore not controlling.

Defendant also contends that the trial judge erred by refusing his instruction on proof solely by circumstantial evidence. (See Illinois Pattern Jury Instructions, Criminal, No. 3.02 (1968).) Because we find that there was direct evidence of guilt as well as circumstantial evidence, we find no error in this regard. According to the testimony of Ronald Herring, defendant admitted taking property from the victim’s premises, and such an admission constitutes direct evidence (People v. Brown (1974), 56 Ill. 2d 312, 317-18, rev’d on other grounds and remanded (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254).

Finally, defendant alleges a failure by the State to prove guilt beyond a reasonable doubt. We find no merit to the argument. Proof of an unauthorized entry was supplied by the testimony of the victim, Garmer, who stated that there was some evidence of tampering with his shed and that he authorized no one to enter the shed in this fashion to remove the tiller or for any other purpose. This proof alone would allow an inference of intent to commit a felony or theft, the remaining element of the offense (People v. Johnson (1963), 28 Ill. 2d 441, 443), but there was also evidence that a tiller was taken and that a tiller was in defendant’s possession, as well as his admission that he took it from the burglarized premises. This proof, we believe, is sufficient to sustain the conviction. The combination of defendant’s admission and corroborating evidence of guilt leaves no reasonable doubt that a crime was committed and that defendant committed it. People v. Brown (1942), 379 Ill. 262, 267; see also People v. Holmes (1977), 67 Ill. 2d 236, 239-40.

The judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE WARD

text:
    (No. 50894.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HENRY CLAY PRESTON, Appellant.

      Opinion filed June 8, 1979.

      Peter J. Schmiedel, of Haas, Schmiedel & Taylor, of Chicago, for appellant.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger and Carol A. Kearney, Assistant State’s Attorneys, of counsel), for the People.
   MR. JUSTICE WARD

delivered the opinion of the court:

The defendant, Henry Clay Preston, was indicted in the circuit court of Cook County for the murder, robbery and armed robbery of George Pope. A jury returned verdicts of guilty of murder and robbery and not guilty of armed robbery, and judgments were entered on the verdicts. The defendant received concurrent sentences of from 75 to 100 years on the murder conviction and from 6 to 8 years on the robbery conviction. The appellate court affirmed the convictions (60 Ill. App. 3d 162), and we allowed the defendant’s petition for leave to appeal.

The defendant was charged with having shot and killed Pope in the course of a robbery in a Chicago Housing Authority building in Chicago, where Pope was employed as a uniformed security guard. There were no eyewitnesses, and the defendant’s conviction rested on the testimony of James Fleming, a friend of the defendant, concerning events taking place shortly following the crime. Fleming testified that the defendant visited him on the evening of April 8, 1974, and told Fleming that earlier that evening, after encountering Pope in an elevator, he had taken the latter’s pistol from its holster, announced a holdup, and then shot him with the pistol. The defendant told Fleming that he then removed a wallet and some currency from the person of the victim, and he showed Fleming the pistol and wallet. The pistol was sold to another person. It was later recovered, and was identified as having belonged to the victim. The wallet and the currency were not found. The count charging robbery alleged the taking of the pistol, while the charge of armed robbery alleged the taking of the wallet and the currency.

In addition to this direct appeal, the defendant filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122 — 1 et seq.) in which he alleged, inter alia, that Fleming’s testimony was perjured. The petition was dismissed without a hearing, and the defendant appealed. The post-conviction appeal was consolidated with the direct appeal, and in the former the appellate court reversed the judgment of dismissal and remanded the cause with directions to hold an evidentiary hearing on the claim of perjury. Neither side has sought review here of the appellate court’s judgment in the post-conviction appeal, and that proceeding is accordingly not before us.

Three issues are raised on the direct appeal. One is the propriety of a supplemental instruction given to the jury. The second is the alleged failure of the trial court to explore fully a response made by a juror during the polling of the jury, a response which assertedly indicated dissent from the verdict of guilty on the murder charge. The third is the refusal to admit a post-trial deposition of the juror concerning the deliberations of the jury. No claim is made that the evidence failed to establish the defendant’s guilt beyond a reasonable doubt.

The taking of testimony at the trial took slightly less than two days. Fleming and six other witnesses were called by the State; the defendant did not testify and called no witnesses. The jury began its deliberations at about 4:25 p.m. on the second day. At 11 p.m. the judge called counsel to his chambers, and read them a supplemental instruction he intended to give the jury regarding deadlocks. No instruction on that subject had been given the jury before it retired, and no request for a supplemental instruction was made by either party. The defendant objected to the giving of the instruction as premature, and also objected to certain portions of it. The jury was then called in and the following took place:

“THE COURT: *** Ladies and gentlemen, have you been able to reach a verdict? ***
THE FOREMAN: Not completely, your Honor.
THE COURT: * * * Do you think you can arrive at a verdict?
THE FOREMAN: I couldn’t tell you at the moment, sir.
THE COURT: Okay. I am going to send you back. I just want to let you know that in a large proportion of the cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence of the conclusion of others, yet you should examine the questions submitted with proper regard and deference to the opinions of each other and you should listen to each other’s opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If you fail to agree on a verdict, the case must be retried and a future jury must be selected in the same manner and from the same source as you have been chosen and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide, nor can a case be tried any better or more exhaustively than it has been here, or that any more clear evidence could be produced on behalf of either side. Now you can retire and reconsider the verdicts in this case.”

The jury retired, and there followed a colloquy with counsel in which the judge stated that he did not intend to lock the jury up for the night unless some reason appeared to do so, but that on the motion of either side the jury would be called every hour and asked if it could reach a decision. At this point the defendant moved for a mistrial.

At 12:50 a.m. the defendant moved for a directed verdict on the ground that the length of time that the jury had been out showed the existence of a reasonable doubt as to guilt. The defendant also made another motion for a mistrial. The court denied these motions and summoned the jury. The foreman stated that the jury had reached a verdict, but the court, having looked at the verdict forms, disclosed, out of the hearing of the jury, that a finding had been reached on only one of the charges. The court did not specify which charge this was. The jury was given no further instruction at this juncture, and was sent back for additional deliberations.

At 1:50 a.m. the jury returned verdicts on all three charges — guilty of robbery, guilty of murder, and not guilty of armed robbery. Before entering judgment, the court, at the defendant’s request, directed that the jury be polled with respect to the guilty verdicts, and during the poll the following colloquy took place:

“CLERK: Vera Goss, as to the verdict of guilty of murder, was this and is this now your verdict?
JUROR GOSS: (unintelligible)
CLERK: As to the verdict of guilty of robbery, was this and is this now your verdict?
MR. KALNINS [counsel for the defendant] : We would ask for a side bar.
COURT: Poll the jury.
CLERK: Vera Goss, as to the verdict of guilty of murder, was this and is this now your verdict?
JUROR GOSS: Compromise.
MR. KALNINS: We would ask to be heard.
MR. OBERTS [counsel for the People] : We would request the rest of the jury to continue to be polled.
THE COURT: Continue the poll.”

After the remaining jurors were polled, the court questioned Mrs. Goss further. Although the colloquy is set forth only in condensed form in the defendant’s brief and abstract and in the opinion of the appellate court, it is shown as follows in the report of proceedings:

“THE COURT: Juror Goss, you were asked by the Clerk if the verdict when you signed this was your verdict, and is it still your verdict. What is your answer to that?
JUROR GOSS: It is my verdict.
MR. MIKULA [counsel for the defendant]: Judge
COURT: Wait a minute. Is it still your verdict?
JUROR GOSS: Yes.
COURT: Is it still your verdict as of right now?
JUROR GOSS: Yes.”

As an exhibit to his post-trial motion the defendant offered what he styled a discovery deposition of Mrs. Goss taken after the conclusion of the trial. Concerning the deliberations of the jury she stated that a difference of opinion existed between her and the other jurors on the murder and armed robbery charges. The other jurors believed that the defendant should be found guilty on each charge, while she did not believe him guilty of either. She stated that she finally agreed to sign a verdict of guilty of murder upon the agreement of the other jurors to return a verdict of not guilty of armed robbery. The court refused to admit the deposition.

We consider first the supplemental charge given the jury. This was virtually identical to the one given in People v. Prim (1972), 53 Ill. 2d 62, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731. In Prim the jury had been deliberating for over four hours when it was called in by the judge. When the. foreman was asked whether it could reach a verdict, he said, “I think there is a chance.” So far as the opinion discloses, no request for a supplemental instruction had been made by either party. The jury returned its verdict 15 minutes after receiving the instruction.

The court noted that the charge was based on one approved by the United States Supreme Court in Allen v. United States (1896), 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154, but that the Allen instruction had been much criticized, principally because it contained language thought to be coercive. The Allen instruction is not set forth verbatim in the opinion of the Supreme Court, but as paraphrased by the court the language in question was as follows:

“[I] f much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.” 164 U.S. 492, 501, 41 L. Ed. 528, 530-31, 17 S. Ct. 154, 157.

Although the instruction given in Prim did not contain the language just quoted, this court took the occasion to state its disapproval of that portion of the original Allen instruction. On the other hand, the court also rejected the position taken by the appellate court in People v. Mills (1971), 131 Ill. App. 2d 693, that no supplemental instruction of any kind should be given. (53 Ill. 2d 62, 74.) In Prim the court did not formulate a specific instruction to be used. It did, however, express approval of section 5.4 of the American Bar Association Standards Relating to Trial by Jury (1968), and in the exercise of its supervisory authority the court directed that in the future a trial court, when faced with a deadlocked jury, should comply with the guidelines contained in that section. 53 Ill. 2d 62, 74-76.

The court also expressed disapproval of other portions of the instruction which stated that if there were no agreement on a verdict, the case would have to be retried by a jury. Like statements appear in the instruction here. Although reference to the consequences of failure to reach a verdict is not a part of the American Bar Association guidelines, the court did not reverse the conviction, since it concluded that that portion of the charge could not be said “to have interfered with the deliberation of the jurors to the prejudice of the defendant or to have hastened the verdict.” 53 Ill. 2d 62, 77.

The propriety of a supplemental instruction was also before the court in People v. Canale (1972), 52 Ill. 2d 107, decided a few months before Prim. In Canale, after the jury had been out for 5% hours, the foreman, in response to questions from the court, said that while the jury had not been able to reach a verdict he could not say whether or not further deliberation would be hopeless. The jury was called back again about an hour later without having reached a verdict, and this time the foreman said he thought that a verdict could be reached in a reasonable time. The court then instructed the jurors that in their deliberations they should exchange ideas with one another, but without suggesting that the views of the majority should be deferred to. This court held that that admonition was not error.

The same question was presented in People v. Viser (1975), 62 Ill. 2d 568. The instruction, referred to in the opinion as an Allen charge, had been given before the jury retired to deliberate, and the trial had occurred prior to Prim. The court held that the instruction did not require reversal.

The defendant contends first that delivery of the instruction was premature since the jury was not known to be deadlocked. We reject that contention. In determining how long a jury should be permitted to deliberate before a mistrial is declared and the jury is discharged, no fixed time can be prescribed, and great latitude must be accorded to the trial court in the exercise of its informed discretion. (People v. Bean (1976), 64 Ill. 2d 123, 127-28; People v. Daily (1968), 41 Ill. 2d 116, 121-22, cert. denied (1969), 395 U.S. 966, 23 L. Ed. 2d 752, 89 S. Ct. 2112; People v. Mays (1962), 23 Ill. 2d 520, 524; People v. DeFrates (1946), 395 Ill. 439, 445-46.) For similar reasons it is primarily the function of the trial court to determine, on the basis of such factors as the length of time already spent in deliberation and the complexity of the issues before the jury, when the giving of a supplemental instruction becomes appropriate.

Section 5.4(a) of the American Bar Association Standards Relating to Trial by Jury, approved in Prim, authorizes the court to give a facilitative instruction to the jury even before it retires for its deliberations. And section 5.4(b) provides: “If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a).” While section 5 thus does not mandate that a deadlock instruction be given before the jury retires, it also does not require a court to delay giving a supplemental instruction until there has been a flat statement from the foreman that no verdict can be reached. Such a requirement would not be realistic, and we think it is sufficient if the court can perceive that the jury is having difficulty in reaching a verdict. In Prim the foreman stated that he thought there was a chance of reaching a verdict, and in Canale the foreman stated that he thought a verdict could be reached in a reasonable time. See also People v. Anthony (1975), 30 Ill. App. 3d 464; People v. Munguia (1975), 33 Ill. App. 3d 880; People v. Wilson (1976), 37 Ill. App. 3d 560; People v. Brown (1977), 48 Ill. App. 3d 632.

As the appellate court noted, the trial here was “relatively short with few witnesses and, as portrayed by the closing arguments of both sides, raised only one question; i.e., whether or not Fleming’s testimony was credible.” (60 Ill. App. 3d 162, 175.) Moreover, the jury had shown no difficulty in understanding the instructions of law given to it, for it made no request to the court for clarification. The foreman stated that the jury had not been able to reach a verdict “completely,” and that he could not say “at the moment” whether a verdict could be reached. The existence of a difference of opinion among the jurors was confirmed by the jury’s subsequent return of a finding relating to only one count of the indictment. Under the circumstances we cannot say that delivery of the instruction was premature.

The defendant next contends that the instruction was improper because it stated that if no verdict were reached a new trial would be necessary, a statement disapproved of in Prim. It is true that the court in Prim did direct that trial courts should conform deadlock instructions to the minimum standards suggested by the American Bar Association. The defendant overlooks, however, that that directive related to an instruction that the minority on a jury should defer to the majority. Such an instruction directs the jury to apply a criterion which is palpably incorrect. Because the State cannot appeal an acquittal, an Allen charge comes before a reviewing court in cases where the trial in which it was used ends in a guilty verdict. Since the minority in such a case consists of those jurors not believing that the accused is guilty, the effect of the charge is to subvert the right of an accused not to be convicted without a unanimous verdict. Billeci v. United States (D.C. Cir. 1950), 184 F.2d 394, 403; Comment, Deadlocked Juries and Dynamite: A Critical Look at the “Allen Charge,” 31 U. Chi. L. Rev. 386, 389-90 (1964).

With respect to the instruction given here we adhere to the views expressed in Prim that it is not helpful and is in part incorrect. Prim did not treat the use of such an instruction as automatically creating reversible error, however, and we think it cannot be deemed coercive where the jury had been deliberating for some six hours before the instruction was given, and continued to deliberate for three hours thereafter. Nothing in Prim, where the court found no coercion although the jury deliberated only 15 minutes after receiving the instruction, requires a reversal.

As to the polling of Mrs. Goss, the defendant argues that her initial response of “compromise” possibly implied dissent from the verdict, and that the trial court was remiss in failing to explore that possibility. After Mrs. Goss said “compromise” the defendant did not object to the judge’s direction that the polling proceed with the other jurors. After the entire poll was completed the defendant did not move either that the jury be returned for further deliberations or that a mistrial be declared. Moreover, in his post-trial motion the defendant did not advance his present argument but instead took the position that the term “compromise” itself expressed dissent. The State suggests that the claim of error now asserted has been waived under the doctrine of People v. Pickett (1973), 54 Ill. 2d 280, 282-83. The appellate court considered the defendant’s claim on its merits, however, and we elect to do the same.

We will assume that the trial court was obliged to inquire into Mrs. Goss’ unresponsive answer. The report of proceedings shows, however, that the trial court did so and that it gave her ample opportunity to repudiate her recorded verdict if she so desired. There is no basis whatever in the record for the defendant’s claim that Mrs. Goss was confused or intimidated by the court’s questioning or that she was prevented from giving a negative answer. The defendant relies upon two decisions of the appellate court, People ex rel. Paul v. Harvey (1972), 9 Ill. App. 3d 209, and People v. Kellogg (1979), 68 Ill. App. 3d 456.

Neither Harvey nor Kellogg is contrary to the result which we reach here. In Harvey, where the verdict was in favor of the defendant, the colloquy between the court and juror went as follows:

“THE COURT: Is this and was this your verdict?
JUROR: Well, it wasn’t exactly, no.
THE COURT: Did you sign this?
JUROR: Yes, I did.
THE COURT: Then it’s your verdict.” 9 Ill. App. 3d 209, 210.

In reversing, the appellate court held that the juror’s initial answer did not show whether or not she disagreed with the verdict, and that the trial judge, in treating the signing of the verdict as conclusive, had foreclosed the juror from showing that she did in fact dissent.

In Kellogg, after a guilty verdict was returned, each juror was asked, “Was this then and is this now your verdict?” All but one answered in the affirmative. The following colloquy took place with the remaining juror:

“TELE CLERK: Susan M. Vesecky, was this then and is this now your verdict?
JUROR VESECKY: Yes. Can I change my vote?
TELE COURT: The question is, was this then and is this now your verdict?
JUROR VESECKY: (No response.)
THE COURT: Was this then and is this now your verdict?
JUROR VESECKY: Yes, sir.” 68 Ill. App. 3d 456, 457-58.

Again, in the view of the appellate court the juror’s initial response could be taken as implying a desire to disavow her assent to the verdict, and the trial judge, by doing no more than to repeat the double-barreled question previously put, effectively prevented the juror from making her disavowal explicit. (Cf. Goshey v. Dunlap (1973), 16 Ill. App. 3d 29, 34.) In the case at bar the questions put to Mrs. Goss did afford her the opportunity of making an unambiguous reply, and the latter disposed of any question created by her previous response. See Annot., 25 A.L.R.Sd 1149, 1156-59 (1969).

We consider finally the matter of Mrs. Goss’ deposition. This deposition, which is described as a discovery deposition, was taken after judgment had been entered and the jury discharged. The record shows no order authorizing the deposition, and no notice of it was given to the State. Counsel for the State was not present at the deposition, and there was accordingly no cross-examination. The appellate court did not concern itself with these procedural aspects, but considered the question before it to be whether Mrs. Goss’ statement, if uncontroverted, would be sufficient to invalidate the verdict. We proceed on the same basis.

The scope of the rule against impeaching a verdict was given extensive consideration in People v. Holmes (1978), 69 Ill. 2d 507. The holding in Holmes was that the testimony or affidavit of a juror could be admitted for the purpose of showing that the jury had made a private investigation into evidentiary matters bearing on an issue in the case, thus availing itself of information which the defendant had had no opportunity to refute. Holmes expressly preserved, however, the almost universally followed rule that the use of affidavits or testimony to show “the motive, method or process by which the jury reached its verdict” was not permitted. 69 Ill. 2d 507, 511.

United States v. Schroeder (8th Cir. 1970), 433 F.2d 846, cert. denied (1971), 401 U.S. 943, 28 L. Ed. 2d 224, 91 S. Ct. 951, is also pertinent. There a juror signed an affidavit stating that he did not believe that the defendant was guilty and had voted for conviction against his will, although the juror had answered in the affirmative when polled on his guilty verdict. A claim that the verdict against the defendant was not unanimous was rejected by the court. It stated:

“After a jury has given its verdict, has been polled in open court and has been discharged, an individual juror’s change of mind or claim that he was mistaken or unwilling in his assent to the verdict comes too late. Under the circumstances of this case, the verdict must stand unimpeached.” (433 F.2d 846, 851.)

Cf. United States v. Johnson (5th Cir. 1974), 495 F.2d 1097, 1102-03.

The defendant argues that this case does not involve an attempt to impeach a verdict, since there was no genuine verdict, Mrs. Goss not having “consented” to it. We do not find that argument persuasive. Mrs. Goss’ statement did not refer to any “extraneous prejudicial information” or “outside influence” (People v. Holmes (1978), 69 Ill. 2d 507, 516), unlike the case in Holmes. Apart from her account of the proceedings in open court when she was polled, Mrs. Goss’ statement describes a process by which the verdict was reached, her motive for joining in it, and the motive underlying her response to the poll. As such the statement was inadmissible under the rule stated in Holmes and in other decisions dealing with this subject. Smith v. Eames (1841), 4 Ill. (3 Scam.) 76, 81; People v. Tobe (1971), 49 Ill. 2d 538; United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232; cf. People v. Spice (1977), 54 Ill. App. 3d 539.

For the reasons given above, the judgment of the appellate court is affirmed.

Judgment affirmed.