author: JUSTICE SIMON

text:
    (No. 56082.
    STUART D. KENNEY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Rickey B. Harris et al., Appellees).

      Opinion filed January 24, 1983.

      Winston & Strawn, of Chicago (Frank L. Butler and Danae K. Prousis, of counsel), for appellant.
    Law Offices Thomas P. Haugh, of Chicago (John H. Anderson, of counsel), for appellees.
   JUSTICE SIMON

delivered the opinion of the court:

The principal question in this appeal by the claimant, Stuart D. Kenney, is whether the statutory three-year limitations period for claims under the Workmen’s Compensation Act was tolled during the minority of one who was injured after July 1, 1975. We answer that question in the affirmative and reverse both the Industrial Commission, which dismissed the claim as untimely filed, and the circuit court of Lake County, which confirmed the Industrial Commission.

Another question presented is whether the claimant is entitled to have any compensation payable to him increased by 50% because he was under 16 when the accident happened and was employed in violation of the State’s child labor laws (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(h)). The Industrial Commission, in view of its dismissal of the claim on the statute of limitations ground, did not reach this question of fact, and we therefore remand this claim to the Commission to decide whether the claimant was illegally employed. To assist the Commission in resolving this issue we will deal with two questions relating to it which the respondents have advanced. The first is whether the claimant raised this issue before the arbitrator; the second is whether the claimant should have been permitted to offer additional evidence before the Industrial Commission at the hearing on review.

THE STATUTE OF LIMITATIONS ISSUE

The claimant was born on August 23, 1960. During the summer of 1975, while he was still 14, and employed at a riding stable as a groom and barn hand, he was thrown out of a front-end loader on which he was working. He fell to the ground and fractured his wrist.

The accident occurred on July 11, 1975, but Kenney’s application for adjustment of claim was not filed until 1979 when he was 18. The claim was dismissed, because, although the requisite notice of the accident had been given, the claim was filed more than three years after the date of the accident.

Whether the three-year time limitation on filing claims under the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.6(d)) was tolled by the claimant’s minority is clearly a legal issue to be determined by this court; we are not bound by the Industrial Commission’s decision on this question.

Ten days before the accident an amendment to the tolling provision of the Act became effective. It provided:

“In case of incompetency of the employee or any dependents of a deceased employee who may be entitled to compensation under the provisions of this Act, the limitations of time by this Act provided do not begin to run against such incompetent until a conservator or guardian has been appointed.” (Emphasis added.) Ill. Rev. Stat. 1975, ch. 48, par. 138.6(c)(1).

A prior tolling provision which was in effect until 1975 applied in the case of the “mental” incompetence of employees (Ill. Rev. Stat. 1973, ch. 48, par. 138.6(c)(2)). The effect of the 1975 amendment was to eliminate “mental” and substitute “incompetency” for mental incompetence. The 1975 amendment left the tolling provision substantially similar to the one which prevailed prior to 1927 and which provided:

“In case an injured employee shall be incompetent at the time when any right or privilege accrues to him under the provisions of this Act, a conservator or guardian may be appointed pursuant to law, and may, on behalf of such incompetent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been competent and had claimed or exercised said right or privilege; and no limitations of time by this Act provided shall run so long as said incompetent employee is without a conservator or guardian.” (Emphasis added.) (Smith’s Ill. Rev. Stat. 1921, ch. 48, par. 145(h).)

We do not regard the differences in the pre-1927 and the post-July 1, 1975, tolling provisions as significant for the purposes of disposing of Kenney’s claim.

The controlling precedent is Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, in which the pre-1927 tolling provision was applied to the claim of a minor. The court decided that the word “incompetent” as used in the then applicable statute included minors, that the public policy of Elinois was to. guard the rights of minors carefully, and that the limitations of time provided by the Act did not run against a minor so long as he was without a guardian.

Even after the statute was amended in 1927, this court did not shun the reasoning it followed in Walgreen. In Ferguson v. Industrial Com. (1947), 397 Ill. 348, the court applied the 1927 amendment to the claim of a minor, holding that the substitution of the words “mentally incompetent” for the word “incompetent” in the earlier statute excluded minors from the tolling provision. It explained that its failure to follow Walgreen was because of the new wording and not because Walgreen had been erroneously decided. Johnson v. Industrial Com. (1972), 53 Ill. 2d 23, also a claim by a minor injured while the post-1927 provision was in effect, rejected the claim as filed too late, and in doing so relied on Ferguson as controlling; in its decision in Johnson, the court restated the holding in Walgreen as follows:

“In Walgreen this court decided that the unqualified term “incompetent” included a minor and therefore section 8(h) of the 1919 Workmen’s Compensation Act (Smith, Ill. Rev. Stat. 1921, ch. 48, par. 145(h)) applied, and the six-month period for filing claims for compensation did not begin to run against the minor employee until a guardian had been appointed for him.” (Johnson v. Industrial Com. (1972), 53 Ill. 2d 23, 24-25.)

Although the Johnson decision in no way attacked the credibility of Walgreen, it recognized Ferguson rather than Walgreen as “controlling” because the pertinent statutory wording — “mentally incompetent” — remained unchanged.

The 1975 amendment, by employing language similar to that used prior to 1927, erased the holdings in Ferguson and Johnson as controlling precedents in the case of minors who were not mentally incompetent or did not suffer from mental incapacity. It restored Walgreen to the status of a controlling precedent, especially because of the admonition in Walgreen that “it is the public policy of this State that courts should guard carefully the rights of minors and that a minor should not be precluded from enforcing his rights unless clearly debarred from so doing by some statute or constitutional provision.” Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, 197.

The respondents argue that Walgreen was incorrectly decided and should not be followed because the Workmen’s Compensation Act provides that “[e]very person in the service of another *** including aliens, and minors *** are considered the same and have the same power to *** receive payments and give quittances therefor, as adult employees.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(b)(2).) Respondents’ contention that this permits a minor to file a claim in his own name does not detract from the conclusion this court expressed in Walgreen that the word “incompetent” standing alone, and without qualification, includes a minor. An identical argument was considered and rejected in Walgreen with respect to a similar provision in the Act as it existed prior to 1927.

We see no reason not to respect the authority of Walgreen. Respondents have failed to demonstrate that it was incorrectly decided. They have pointed out no substantial distinction between the tolling provision applied in Walgreen and the one the parties agree is applicable here. They have offered no justification for departing from Walgreen, and it clearly appears that by the 1975 amendment the General Assembly intended to return to it.

Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, lends support to our conclusion, for in that case this court relied on the above-quoted language from Walgreen in concluding that the time limitations of the wrongful death statute did not run against a minor even in the absence of a specific tolling provision. Respondents seek to distinguish Wilbon on the ground that the wrongful death statute has no provision directing that a minor be treated as an adult and allowing him to bring suit in his own name. This argument does not detract from the observation that Wilbon embraced Walgreen by quoting from it with approval.

Finally, we distinguish our recent decision in Demchuk v. Duplancich (1982), 92 Ill. 2d 1. It involved a claim under the Dramshop Act and the holding 22 years earlier in Lowrey v. Malkowski (1960), 20 Ill. 2d 280, that there was no tolling under that act during plaintiff’s minority. Demchuk differs from this case in two respects. First, our dramshop act contains no tolling provision exempting minors from the time limitations contained in the statute. In that regard it is similar to the Workmen’s Compensation Act during the period from 1927 to 1975 when Ferguson and Johnson accurately expounded the law. Second, in reaching our conclusion in Demchuk that the limitations provision did not exempt minors we relied on Lowery, a decision to the same effect, and the acquiescence by the legislature in that decision demonstrated by its failure over a 22-year span of time to amend the Dramshop Act to add a tolling provision for minors. Here we have legislative action rather than inaction; the legislature has amended the Workmen’s Compensation Act to provide language which restores the exemption for minors which existed prior to the 1927 amendment. The operative facts of this case all occurred after the amendment to the Act became effective. To decide this case as Ferguson and Johnson were decided rather than in the way Walgreen was decided would give no effect to the 1975 amendment.

THE EVIDENCE QUESTIONS

Contrary to the employer’s contention, our view is that the question of whether Kenney was employed in violation of the State child labor laws should be considered by the Industrial Commission on the remand. The record demonstrates that this question was understood by the parties to be an issue at the hearing before the arbitrator, and that the attorney for the employer even insisted at one point that he had a right to ask questions pertinent to it. We do not find the fact that the parties had earlier stipulated that the only issues were limitations, notice, wages, medical expenses, disability, and nature and extent of injury to be controlling where the subsequent conduct of the parties at the arbitration hearing clearly indicates that they considered other issues to be in controversy. (See Bray v. Industrial Com. (1972), 50 Ill. 2d 262.) Moreover, because the claim was disposed of on the limitations issue, the question of whether Kenney’s employment violated the child labor laws was never addressed. The respondents are therefore not prejudiced if this issue is left open for consideration, and it would be unfair to preclude Kenney from raising the issue on the remand where it would have been considered earlier but for the dismissal of the claim on limitations grounds.

The final question is whether the claimant should have been permitted to offer additional testimony at the hearing on review. Kenney argues that section 19(e) of the Act permitted him to amplify his testimony at the review hearing. He also relies on Rysdon Products Co. v. Industrial Com. (1966), 34 Ill. 2d 326, where this court, in rejecting the objection that a claimant who testified before an arbitrator could not amplify his testimony at the review hearing said:

“[T]he asserted construction is not justified by the language of the statute. The meaning of ‘additional’ is ‘added,’ or ‘extra,’ (Webster’s New Int. Dictionary, 2d ed., p. 30,) and the legislative direction that ‘additional evidence’ may be heard, is not a limitation upon the persons who may testify before the Commission.” 34 Ill. 2d 326, 331.

In resolving this question it is not necessary to base our decision on the authority which Kenney presents. Since, as noted above, neither the arbitrator nor the Commission has addressed the child-labor-law issue, receiving additional evidence on this subject on the remand will not be prejudicial to the respondents.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 56134.
    DALE JONES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Hiram Walker & Sons, Inc., Appellee).

      Opinion filed January 24, 1983.

      Warren E. Danz, P.C., of Peoria, for appellant.
    Raymond C. Williams, of Goldsworthy & Fifield, of Peoria, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Dale Jones, petitioner, sought workmen’s compensation for an injury to his left eye. The arbitrator found that petitioner’s injury resulted from an assault and not from an accidental injury arising out of and in the course of his employment. The Industrial Commission affirmed, and the circuit court of Peoria County confirmed the Commission’s decision. Here petitioner contends the finding that an assault occurred is against the manifest weight of the evidence.

Respondent, Hiram Walker and Sons, Inc., employed petitioner as a power truck driver on its loading dock. On June 28, 1978, petitioner was involved in an incident with a co-worker, Milo Draggist, which resulted in his injury. Both he and Draggist testified before the arbitrator.

Petitioner testified that he took a bag of snack chips from a desk while walking to respondent’s cafeteria for lunch and that someone told him Draggist was looking for them. He said he took the bag to Draggist, handed it to him, and, as he turned to leave, was accidentally struck in the left eye by Draggist.

Draggist testified he was ready to take his lunch break when he noticed his bag of chips was missing. He said he thought someone was playing a trick on him, but then saw petitioner walking toward him with the bag of chips in his hand. Draggist stated he took the bag, pointed at petitioner, and warned him never to touch his lunch again or he would knock his head off his shoulders. Draggist further testified that, as petitioner turned away, he thought petitioner was going to swing at him. Draggist said he then turned to grab petitioner’s arm, slipped, and caught him in the left eye.

Petitioner was treated by a physician for the injury and was off work from June 28 to August 15, 1978. Both he and Draggist testified they had worked together in the past and there had never been any prior incidents or tension between them.

Petitioner bears the evidentiary burden of establishing that his injury arose out of and in the course of employment. (Schroeter v. Industrial Com. (1976), 62 Ill. 2d 284, 286.) The Industrial Commission found petitioner had not met this burden. Rather, it inferred from the facts that petitioner’s injury resulted from an assault precipitated by a dispute over a co-worker’s lunch and that this had nothing to do with the employment.

It is well established that this court will not disregard reasonable inferences drawn by the Commission from the established evidence merely because other inferences might be drawn. (Sears, Roebuck & Co. v. Industrial Com. (1979), 78 Ill. 2d 231.) It is the Commission’s function to resolve conflicting inferences, and its decision should not be disturbed unless it is against the manifest weight of the evidence. Greene v. Industrial Com. (1981), 87 Ill. 2d 1.

Petitioner maintains the Commission’s inference is against the manifest weight of the evidence because both he and Draggist testified the injury was accidental. While there is some testimony that Draggist’s hand slipped, it is undisputed that Draggist warned, threatened, grabbed at, and struck the petitioner. In these circumstances, we cannot say that the Industrial Commission’s finding that the injury resulted from a purely personal dispute is against the manifest weight of the evidence. Accordingly, we affirm the judgment of the circuit court.

Judgment affirmed.


author: JUSTICE WARD

text:
    (No. 56333.
    JACK WALDEN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ottawa Silica Company, Appellee).

      Opinion filed January 24, 1983.

      Barton & Sorokas (Michael Sorokas, of counsel), for appellant.
    Pamela K. Kesler, of Cohn, Lambert, Ryan & Schneider, Ltd., of Chicago, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Jack Walden filed a claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries allegedly sustained in an auto collision on his employer’s property. An arbitrator awarded minimal compensation of 2% partial disability under section 8(d)(2) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(d)(2)) and $650 for medical expenses. On review, however, the Industrial Commission found that the claimant failed to prove that he sustained any permanent disability as a result of the accident and that the medical expenses were necessary or reasonable. The Commission set aside the award, and the circuit court of La Salle County confirmed the decision of the Industrial Commission. The claimant brought a direct appeal to this court under Rule 302(a)(2) (73 Ill. 2d R. 302(a)(2)).

On the evening of February 23, 1979, while on his way to work at the Ottawa Silica Company in Ottawa, Jack Walden drove his auto against a parked semi-trailer on the company’s property. Walden informed the company’s personnel officer that he was not injured and worked his regular shift that evening. He testified that he asked the plant’s division manager, John Kensler, two days later whether he could see the company doctor or go to the hospital and that his request was denied. The following day Walden consulted his own physician, Dr. J. B. Aplington, and a week later was examined by his wife’s physician, Dr. M. L. Toraason. On June 11, 1979, he visited and was treated by a chiropractor, Dr. Donald R Mammano. He was examined on June 26, 1979, by the respondent’s physician, Dr. D. W. McKinney. Walden did not lose any time from work.

Dr. Mammano’s records showed that Walden complained of cervical pain, pain in the carpal-metacarpal joints of the left thumb, back pain along the upper lumbar spine, tension, and dizziness. Mammano testified that he treated Walden for six weeks, after which Walden continued to experience intermittent pain. It was his opinion that Walden’s complaints were causally connected to the accident on February 23, 1979. A medical report form completed by Dr. Mammano showed a negative response to the question whether any permanent injury would result.

Dr. McKinney’s report, which was received in evidence, concluded:

“The only objective findings as far as this individual is concerned on today’s examination is the very minimal scoliosis of the thoracic spine as noted by physical examination and the degenerative arthritic changes in the thoracic spine as seen by the x-ray. I feel that these changes predated the accident in question. I am unable to substantiate any real objective findings here to denote permanent disability as a result of the accident in question.”

On review before the Industrial Commission, the respondent called Kensler, Ottawa Silica’s division manager, as a witness. He testified that at no time during his conversation with the claimant on or about February 24, 1979, did Walden discuss his physical condition or request to go to the hospital.

Ottawa Silica learned at the arbitration hearing of Dr. Aplington’s and Dr. Toraason’s consultations with Walden. Their records, which were subpoenaed by the respondent, were admitted into evidence on review before the Commission. Aplington first responded to the subpoena by stating that he had no medical records for Walden. He later submitted a letter indicating that, although he could not remember Walden’s specific complaints, he had found a $10 receipt issued to Walden for services in February 1979. The letter further stated that, had he found serious injury to Walden, he would have made notes of the examination. Aplington was not informed at the time of the examination that Walden was claiming an injury from his employment.

Dr. Toraason’s records included a notation that she received $12 from Walden for an office visit on March 5, 1979. Her notes indicated a complaint that Walden had “sprung” his back right flank while pulling a car fender.

The claimant subsequently was allowed to reopen proofs, and a dedimus potestatem to take the depositions of Aplington and Toraason was issued. The supplemental letter report of Dr. Aplington referring to the receipt of $10 was stipulated to, and the claimant took the deposition of Dr. Toraason. The deposition was not later offered into evidence.

On certiorari, the circuit court of La Salle County held that the subpoenaed records of Aplington and Toraason were incorrectly admitted on review since the evidence could have been available to the respondent at the hearing before the arbitrator. Since Walden was allowed, however, to submit further materials from Aplington and to take the deposition of Dr. Toraason, the error was not reversible, the court said in confirming the Commission’s decision.

The claimant has raised two points on this appeal: whether Dr. Aplington’s and Dr. Toraason’s medical records were properly admitted on review, and whether the decision of the Industrial Commission is against the manifest weight of the evidence.

This court declared in Nollau Nurseries, Inc. v. Industrial Com. (1965), 32 Ill. 2d 190, and Keystone Steel & Wire Co. v. Industrial Com. (1969), 42 Ill. 2d 273, that an examining or treating physician’s medical report or testimony may be received into evidence as an admission against interest when the physician is an agent of the employer. Walden attempts to distinguish those decisions on the ground that the physicians there were agents of the employer, whereas here the doctors were engaged by the the injured employee. We do not consider that the court’s holdings in these cases, however, were limited to employers’ physicians, and we fail to discern any reason to restrict them. (Accord, Cuneo Press Co. v. Industrial Com. (1930), 341 Ill. 569.) Too, in Long v. Industrial Com. (1979), 76 Ill. 2d 561, this court allowed statements made by the claimant in giving personal histories which were filed in hospital records to be admitted as admissions against interest. We would further observe that whether to receive additional evidence is within the sound discretion of the Industrial Commission. Niles Police Department v. In dustrial Com. (1981), 83 Ill. 2d 528, 536.

Nor do we consider that the decision of the Industrial Commission was against the manifest weight of the evidence. It is for the Commission to decide questions of fact, including those of causation, and the credibility of witnesses, and to choose between conflicting medical evidence. (Keystone Steel & Wire Co. v. Industrial Com. (1978), 72 Ill. 2d 474.) A decision of the Industrial Commission will not be set aside unless it is contrary to the manifest weight of the evidence. (Lambert v. Industrial Com. (1980), 79 Ill. 2d 243.) The finding here is not contrary to the manifest weight of the evidence. That this court might have drawn different inferences from the evidence is not a factor to be considered on review. Schoonover v. Industrial Com. (1981), 86 Ill. 2d 321.

For the reasons given, the judgment of the circuit court of La Salle County is affirmed.

Judgment affirmed.


text:
    (No. 56229.
    TIMOTHY ROBERTS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Shappert Engineering Company, Appellee).

      Opinion filed January 24, 1983.

      Warren D. Danz, P.C., of Peoria, for appellant.
    Andrew Maral, of Burgeson, Laughlin, Cunningham & Hare, of Chicago, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Claimant, Timothy Roberts, sought workmen’s compensation as the result of an alleged injury he sustained while in the employ of the respondent, Shappert Engineering Company. An arbitrator found that claimant “failed to prove that he sustained accidental injuries arising out of and in the course of his employment” and therefore denied compensation. On review, the Industrial Commission, although it “reversed” the decision of the arbitrator, nevertheless denied the claimant compensation because he “failed to prove any causal connection between his present complaints of ill-being and the *** accident.” The circuit court of Macon County confirmed the decision of the Commission, and claimant brought a direct appeal to this court. 73 Ill. 2d R. 302(a).

The sole issue presented is whether the Commission’s finding that claimant’s condition is not causally related to the alleged accident is against the manifest weight of the evidence.

The claimant was the only witness to testify at the hearing before the arbitrator. He stated that, on June 21, 1978, he was employed by respondent as a laborer. On that date, while working underneath a bridge, the ladder upon which claimant was standing slipped, and he fell. He stated that he experienced a sharp pain in his lower back, although he continued to work the rest of the day.

The following day, claimant went to St. Mary’s Hospital, where his back was X-rayed. He was informed that he had a pulled muscle, and pain medication was prescribed for him. Claimant continued to work through August, at which point his job was completed. He testified that the pain in his back increased during this time, but he did not see a doctor. In November, he obtained another job as a laborer, for two weeks, with a construction company. He was then laid off throughout the winter.

In January or February of 1979, claimant’s back pain radiated into his left leg, and he could not walk. On March 2, 1979, he consulted Dr. Sterling Parker, an orthopedic surgeon. Dr. Parker admitted him to St. Mary’s Hospital and administered a myelogram test (a radiograph of the spinal canal). Surgery was subsequently performed on claimant’s lower back.

Dr. Parker allowed claimant to return to work on May 11, 1979. He obtained employment operating a jackhammer for approximately one week. He testified that he continued to experience pain but nevertheless worked until he was laid off. He is not presently receiving medical treatment.

Finally, claimant testified that, prior to June of 1978, he had not injured his back or lower legs “in any way that [he could] remember.” He stated that he had experienced “a couple pains” in his back before that date, but nothing of a serious nature. He also indicated that he had not sustained any injuries to his back or legs subsequent to June 21,1978.

On cross-examination, claimant admitted that since his visit to the hospital the day following the alleged accident, he sought no further medical attention for nine months. He also stated that he did not remember seeing Dr. Parker in 1970 for back pain, or being told at that time he suffered from a herniated disc. He initially stated that he never told the doctor he hurt his back after being “thrown” by a horse. Later, however, he testified that he did recall this incident. He also stated that he did not remember seeing Dr. Parker in 1974, and receiving back X rays. He did recall experiencing “a little bitty pain in [his] back,” that year, after he moved a shed.

On the basis of this evidence, the arbitrator denied the claim for compensation. At the subsequent hearing before the Commission, claimant introduced into evidence the depositions of his two physicians. Dr. Parker stated that he saw claimant in June of 1970. He had been “thrown by a horse” in April or May of that year and complained of pain in his back and left leg. Dr. Parker stated that at that time, he thought claimant suffered from an “L-4 disc attack” (a spinal condition located at the fourth vertebra in the lower part of the back). He prescribed a back support for claimant to wear. He saw claimant again in 1971, at which time claimant was unable to lift heavy objects without suffering from pain in his back and left hip.

Dr. Parker also stated that claimant again consulted him in 1974, complaining of low back pain. An X ray showed minimal degenerative changes at L-4. He next saw claimant in 1979. His condition at that time was suggestive of a herniated disc at L-5. The doctor performed an operation and removed the disc. When asked whether there was a causal connection between the alleged injury and claimant’s current condition, Dr. Parker responded: “[T]he disc abnormality, it might or could have been aggravated by the injury ***. I do not think that it produced the complete disc rupture that he was operated on for, which according to my history occurred about two weeks prior to the time I saw him.”

On cross-examination, Dr. Parker indicated that the pain claimant suffered on June 21, 1978, could have been due to a pulled muscle. He stated that he “really [had] no basis to make the opinion” except his knowledge of claimant’s history.

Also deposed by claimant was Dr. Gordon Schultz, an orthopedic surgeon. He testified that he saw claimant in January of 1980, and reviewed his X rays. According to Dr. Schultz, claimant “had a little beyond the usual disability that someone has after a laminectomy.” He stated there was a problem with the nerve root at L-4 or L-5, which could account for claimant’s problem. When asked whether there was a causal relationship between the alleged accident and claimant’s current condition, Dr. Schultz responded:

“Well, I have in mind that he had had back trouble previously, and then there were some degenerative changes seen in ’74 which were very minor, but he didn’t have any significant leg trouble until he did have this accident of June 21, 1978, and I think that ruptured his disc, but the disc didn’t get over against a nerve root until later, and that is what drove him to the doctor. It finally moved over against a nerve root which caused the pain down his leg, and which caused the doctor to operate.”

On cross-examination, Dr. Schultz testified that any number of daily activities could cause a disc to move against a nerve root. He stated that “50% of the discs don’t have a traumatic origin.”

Claimant contends that he suffered an accidental injury which aggravated a preexisting condition. It is therefore argued that the injury contributed to his current condition and is sufficient to support an award. (E.g., Goldblatt Brothers, Inc. v. Industrial Com. (1981), 85 Ill. 2d 172, 177.) He further claims that he failed to consult a physician for nine months following the accident because he “is a very stoic individual.”

Respondent asserts that there is no causal connection between the alleged incident of June 21, 1978, and claimant’s present condition of ill-being. It is argued that claimant’s prior non-work-related injuries are responsible for his degenerative back condition. Further, respondent points out that claimant failed to seek medical attention for nine months following the alleged incident. He also evaded questions regarding his prior medical history. For these reasons, the Commission was justified in finding that claimant lacked credibility.

“The question of whether a claimant’s disability is attributable to a degenerative condition or to an aggravation of a preexisting condition because of an accident is a question of fact to be decided by the Industrial Commission.” (Ross v. Industrial Com. (1980), 79 Ill. 2d 258, 261, citing International Vermiculite Co. v. Industrial Com. (1979), 77 Ill. 2d 1.) Similarly, it is for the Commission to determine matters of credibility. (General Electric Co. v. Industrial Com. (1982), 89 Ill. 2d 432.) This court may not set aside the Commission’s decision even though we may draw different inferences from the record. (Long v. Industrial Com. (1979), 76 Ill. 2d 561.) The Commission’s decision will be reversed only where it is contrary to the manifest weight of the evidence. E.g., Millis v. Industrial Com. (1982), 89 Ill. 2d 444.

As previously noted, claimant has a history of back and leg difficulties dating from 1970. On one occasion, he was required to wear a back brace. His condition was diagnosed as a “disc attack,” or a herniated disc, which was also the reason prompting his surgery. The day after the incident in June of 1978, claimant visited a hospital and was informed he suffered from a pulled muscle. Dr. Parker agreed that claimant may have incurred only a pulled muscle at the time. He further indicated that the disc rupture requiring surgery probably occurred in February of 1979, two weeks prior to the operation.

The record also reveals that, except for the day following the alleged incident, claimant sought no further medical treatment for nine months. He missed no days of work, during these months, as a result of the incident. Indeed, he continued to perform heavy, manual labor.

It is possible, as claimant and Dr. Schultz assert, that claimant was a “stoic” individual and suffered from a “delayed reaction” to the incident. However, the Commission would also be justified in inferring that his back condition was simply not related to the alleged accident. Rather, it could be found that claimant suffered from a degenerative condition which extended over a period of eight years and culminated in his current disability.

Finally, our review of the record indicates that claimant was extremely evasive concerning his prior medical history. He failed to recall his visits to Dr. Parker, the reason for the visits, and any diagnosis or treatment. The Commission may well have considered claimant’s credibility in assessing the validity of his claim.

For the above-related reasons, we are not prepared to say that the Commission’s decision was contrary to the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.


text:
    (No. 55444.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LARRY MOODY, Appellee.

      Opinion filed January 24, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Frank W. Ralph, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Defendant, Larry Moody, was convicted of burglary in the circuit court of Will County and sentenced to a four-year term of probation, which was subsequently revoked. The appellate court determined that he had been arrested without probable cause and reversed the conviction. (97 Ill. App. 3d 758.) The State appeals this reversal and the accompanying order directing a new trial.

At about 9 p.m. on December 29, 1979, Joliet police officer Robert Briney responded to a report of a burglary at the Collector’s Gallery, a store selling coins and guns. He found that someone had broken a plate-glass window at the front of the store, apparently to gain entrance, and had broken a glass display case and taken two shotguns and an M-l rifle. Officer Briney could not get a description of the burglar and could find no trace of the guns, but he discovered droplets of blood on the glass at the point of entry and on the floor at that point and beneath the display case. He called in to the police communications center with this information and suggested that the center notify hospitals in the area in case anyone appeared to have cuts treated. Some 20 minutes after he did this he and a companion officer found the three guns inside an orange pickup truck behind a building three doors from the Collector’s Gallery. Thomas Pennington, the owner of the Collector’s Gallery, identified the guns as the ones taken. The truck in which they were found belonged to neither Pennington nor the defendant.

Around 9:30 p.m. Sergeant Clifford Erwin, also of the Joliet police, received a radio dispatch which informed him that a subject had just checked into Silver Cross Hospital for treatment of a laceration, and that blood had been found at the scene of a burglary at the Collector’s Gallery some time earlier. The hospital was approximately 2Vz miles from the Collector’s Gallery, and the defendant had checked into it at about 9:30. On arriving at the hospital, Officer Erwin found defendant lying on a hospital cart awaiting treatment for a deep cut in his leg which was still bleeding and seemed to be causing him pain. Moody was wearing only a hospital gown, as the hospital staff had removed his clothes. Officer Erwin asked him where he worked, and Moody replied that he worked for Joliet Paint and Glass Company. Officer Erwin had already been informed by another officer that Moody had stated that the leg wound had been inflicted a short while earlier by several men who had assaulted him as he was leaving a tavern which was located three doors from the Collector’s Gallery.

Officer Erwin then gave Moody his Miranda rights and questioned him about the burglary. Moody stated that he understood his rights and admitted that he had been in the store two days earlier looking at guns, but denied knowledge of or involvement in the burglary. Instead of questioning Moody further, Erwin telephoned Officer Briney, who was still at the Collector’s Gallery. Briney informed him about finding the guns in a truck parked in an alley between the gun store and the tavern behind which Moody had said he had been assaulted. Erwin then spoke over the telephone with Thomas Pennington, who told him that Moody had been in his store two days earlier and had examined an M-l rifle on that occasion.

After Erwin had finished his telephone conversation, Moody called him over to his cart and mentioned that he knew the store in question and was a friend of the owner. Moody also volunteered that he had handled six or seven guns the day he was in the store. At this time a police detective who was in the room with Erwin and Moody picked up one of Moody’s combat boots and showed Erwin what appeared to be particles of glass in the sole. Erwin asked Moody if he would allow the police to take a blood sample from him, and Moody answered “no.”

Erwin then asked if Moody would come to the police station with him for fingerprinting and photographing after he or one of his fellow officers procured clothes for him to replace his own, which the police would take. Moody’s response to this is unclear from the record; his own testimony was that he did not consent, while Erwin testified that he agreed to go to the station. Erwin nonetheless told two of his fellow officers to take various articles of Moody’s clothing and instructed one of the officers to bring Moody to the police station after he was finished with his hospital treatment, take his photograph and fingerprints, and let him go afterwards rather than arresting him. The record does not disclose whether Moody heard Erwin’s admonition not to arrest him. Erwin testified at the suppression hearing that the reason for this admonition was that he did not believe at that time that there existed probable cause to arrest him.

Erwin’s instructions were followed, and Moody was not formally arrested until three weeks later, after his fingerprints were matched with prints found inside the display case at the Collector’s Gallery. Moody made a pretrial motion to quash the arrest and suppress the physical evidence gathered from his person and his clothes on the night of December 29. He argued that the circumstances under which he went to the police station on that evening were such that he did not consider himself free to refuse to go, and that there was no warrant for his arrest at that time and no probable cause for an arrest. The circuit court agreed that an “arrest” had occurred that night, but denied the motion on the ground that probable cause existed.

In this appeal the State argues alternatively that no “arrest” occurred on December 29 and that probable cause to support an arrest existed on that night. We do not reach the former issue as we agree that there was probable cause to arrest Moody on the night of December 29.

Moody takes the position, and the appellate court held, that the objective evidence within the knowledge of the officers on December 29 did not establish grounds for a reasonable belief that he had committed the burglary at the Collector’s Gallery. He argues that at the time they took Moody to the police station for photographing and fingerprinting the officers knew only that there had been a burglary, that entry was gained through a broken glass window and blood was found in the store, that guns were taken which were later found nearby in a truck which did not belong to Moody, that Moody knew the owner of the store and had examined one of the guns taken two days before the burglary, that the place where he claimed to have cut his leg was near the gun store, and that Moody was being treated for a deep cut in his leg at a hospital several miles from the store shortly after the burglary occurred. A sufficient time elapsed after the break-in occurred to have permitted him to travel from the Collector’s Gallery to the hospital. This information, he argues, was not a sufficient foundation either individually or collectively for a reasonable belief that Moody was the burglar. Moody also points out that Sergeant Erwin knew him before the burglary and that he did not believe that he had probable cause to make an arrest on December 29. He cites People v. Miller (1972), 7 Cal. 3d 219, 496 P.2d 1228, 101 Cal. Rptr. 860, for the proposition that under these circumstances the arresting officer’s subjective beliefs must control even though as an objective matter he could have found probable cause.

We address Moody’s initial argument first. Probable cause exists in the objective sense if “ '*** the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.’ ” (People v. Creach (1980), 79 Ill. 2d 96, 101, quoting People v. Robinson (1976), 62 Ill. 2d 273, 276; see Dunaway v. New York (1979), 442 U.S. 200, 208 n.9, 60 L. Ed. 2d 824, 833 n.9, 99 S. Ct. 2248, 2254 n.9; Brinegar v. United States (1949), 338 U.S. 160, 175-76, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310-11; Carroll v. United States (1925), 267 U.S. 132, 162, 69 L. Ed. 543, 555, 45 S. Ct. 280, 288.) This standard requires more than mere suspicion, but it does not require the arresting officers to have in their hands evidence sufficient to convict the defendant. The courts, in striking a balance between the need to protect citizens from invasions of their privacy at the whim of police officers and the countervailing need to allow leeway for efficient enforcement of the laws, are sensitive to the fact that policemen must often make their decisions to arrest or not to arrest under ambiguous circumstances and must exercise their judgment, at the risk of making a mistake. “In dealing with probable cause, *** as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” (Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310.) The law requires only that insofar as police officers are allowed the luxury of making mistakes in arresting a suspect, “the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability.” Brinegar v. United States (1949), 338 U.S. 160, 176, 93 L. Ed. 1879, 1891, 69 S. Ct. 1302, 1311; see People v. Creach (1980), 79 Ill. 2d 96, 102; People v. Clay (1973), 55 Ill. 2d 501, 504-05.

In the instant case, while we might be disposed to agree with Moody that the pieces of evidence in Sergeant Erwin’s hands on December 29 individually would not lead to a reasonable belief that Moody was the burglar, probable cause must be determined viewing the evidence taken as a whole. (People v. Clay (1973), 55 Ill. 2d 501, 504.) In assessing all of the pieces of information which Sergeant Erwin possessed on the night of December 29, we must consider the radio dispatch Erwin received prior to going to Silver Cross Hospital, the fact that Moody was suffering from a deep cut in the leg which could have been inflicted by broken glass, and the fact that the hour at which Moody checked into the hospital coincided with the reports of the burglary. No report of any disturbance at the tavern near the Collector’s Gallery had been made so as to give credence to Moody’s story that he had been assaulted. Neither Silver Cross nor any other hospital in the vicinity reported treating anyone else with a cut that could have been caused by glass on the night of December 29, as far as Sergeant Erwin knew.

This is not a case like Brinegar v. United States in which there was uncertainty as to whether a crime had been committed or not; here the police knew that a burglary had been committed and were confronted with a decision as to whether or not it was probable that Moody had committed it. Nor is the case comparable to People v. Gabbard (1979), 78 Ill. 2d 88, in which the only “evidence” the arresting officer had to link defendant with the crime was the fact that he was walking along a highway away from the city where the crime had occurred and the speculative possibility, not yet established at the time of the arrest, that he might have been carrying a driver’s license that would identify him as the perpetrator. We believe that there were too many coincidences pointing to Moody to enable us to say that his guilt was not “probable,” in the fourth amendment sense, or that the trial court’s determination that it was probable was against the manifest weight of the evidence. See People v. Clay (1973), 55 Ill. 2d 501, 505.

Moody points to the unusual circumstances of this case and urges that inasmuch as the arresting officer’s contemporaneous views as to probable cause differed from the circuit court’s objective determination that probable cause existed, our conclusion should similarly differ. He cites People v. Miller (1972), 7 Cal. 3d 219, 496 P.2d 1228, 101 Cal. Rptr. 860, for the proposition that the probable-cause question of whether the arresting officer’s subjective belief that defendant had committed a crime was objectively justified cannot logically arise where the officer did not hold such a belief. Moody concedes that this court has never passed on this precise question but invites us to adopt the California approach as the law of Illinois.

We do not agree that the fourth amendment requires more than an objective inquiry into the reasonableness of a police officer’s conduct based on the evidence he has. We disagree with the basic premise of People v. Miller that the thrust of a probable-cause inquiry is whether the arresting officer’s subjective belief was objectively justified (7 Cal. 3d 219, 226, 496 P.2d 1228, 1233, 101 Cal. Rptr. 860, 865). The fourth amendment and the exclusionary rule guard against unreasonable searches and seizures, not against unreasonable beliefs per se. If, as explained in Brinegar v. United States, an arrest is to be termed “reasonable” if a reasonable man in the arresting officer’s position would believe that the defendant had committed a crime, we do not understand how the fact that the officer himself did not so believe, or was uncertain as to what to believe, can change that. (See Klingler v. United States (8th Cir. 1969), 409 F.2d 299, 304, cert. denied (1969), 396 U.S. 859, 24 L. Ed. 2d 110, 90 S. Ct. 127.) The inquiry must focus on what was done and known by the police, not on what was believed, what the facts objectively viewed add up to, not what the officer on the scene believed they added up to. The latter approach would, of course, lead to differing conclusions based upon the experiences and response of a particular officer, while the former approach leads to the more uniform answer expected of the law.

Moody’s final complaint is that the trial judge, in passing on the question of probable cause in the suppression hearing, resorted to his recollection of Sergeant Erwin’s testimony before him in a previous case to help him make up his mind about the weight to be given Erwin’s testimony that he lacked probable cause on December 29. Moody’s argument is that he was denied due process of law insofar as the judge’s denial of his motion was based on evidence not in the record. People v. Harris (1974), 57 Ill. 2d 228; People v. Wallenberg (1962), 24 Ill. 2d 350; see also People v. Yarbrough (1982), 93 Ill. 2d 421.

We agree with Moody’s statement of the law. However, we do not find that it requires a reversal in this case. The excursion from the record complained of here consists of a statement volunteered by the trial judge to counsel after the close of argument, to the effect that the judge had known Sergeant Erwin to do “a few things that are a little bit unorthodox at times.” Immediately after mentioning this, the judge went on to say:

“I heard him say he did not believe he had probable cause to make the arrest at this time. The question becomes what is the effect of that. You know, if you don’t have probable — if in fact he has probable cause, as the State is arguing, this is the other way around. I wonder if defendant should have both worlds, where if there is in fact not probable cause or if there is and the police officer doesn’t know there is, should he get the best of both worlds. This probably has been covered by some case. I don’t know offhand.
But in any event, it does appear to the Court that the general rule is that knowledge, whatever knowledge the police have, whether it is in this officer or that officer combined, knowledge of the police can be used for probable cause to effectuate an arrest, that what Sergeant Erwin did was in fact arrest this gentleman. I do find he had probable cause to make the arrest.
* * *
But it is going to be the ruling of the Court that Sergeant Erwin did in fact have probable cause. He did effectuate the arrest. The arrest was lawful and the articles were seized pursuant to lawful arrest even though the sergeant himself denies he had probable cause. He says, T didn’t have.’ ”

It is clear to us that the trial judge did not use his familiarity with Sergeant Erwin to help him rule on the suppression motion but ruled instead, as we do here, that Erwin’s subjective beliefs did not matter because the arrest was objectively justified. This case is unlike Harris, Wallenberg, Yarbrough and People v. Brantley (1976), 43 Ill. App. 3d 616, in which the court’s reliance on evidence not in the record was apparent.

The decision of the appellate court is reversed. The conviction is affirmed.

Appellate court reversed; circuit court affirmed.


author: JUSTICE UNDERWOOD JUSTICE MORAN, JUSTICE GOLDENHERSH,

text:
    (No. 55868.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JEFFREY D. PANKEY, Appellee.

      Opinion filed January 24, 1983.

    MORAN, J., specially concurring.
    GOLDENHERSH, CLARK, and SIMON, JJ., dissenting.
    Tyrone C. Fahner, Attorney General, of Springfield, and David W. Hauptmann, State’s Attorney, of Harrisburg (Martin N. Ashley and Stephen E. Norris, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    Randy E. Blue, Deputy Defender, and Daniel M. Kirwan, Assistant Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee.
   JUSTICE UNDERWOOD

delivered the decision of the court and the following opinion in which CHIEF JUSTICE RYAN and JUSTICE WARD join:

The State’s Attorney of Saline County filed an information on June 12, 1980, charging defendant, Jeffrey D. Pankey, with aggravated battery. The circuit court dismissed the charge on double jeopardy grounds, and the appellate court affirmed. (100 Ill. App. 3d 962.) We allowed the State’s petition for leave to appeal.

Defendant was arrested in Harrisburg on June 11, 1980, apparently in the early morning hours, and transported to the Saline County jail. The arresting municipal police officer, Gary Sadler, issued an “Illinois Citation and Complaint,” a uniform citation used for traffic offenses, which purportedly charged defendant with aggravated battery in violation of “Ill. Rev. Stat. Chapter 38, Paragraph 12 — 4” occurring on June 10, 1980 at 11:25 p.m. at the “Denny Residence/R.R.2 Hbg.” Also printed by the officer on the face of the citation was: “To Be Changed To Criminal Complaint.” The citation, which the officer apparently delivered to the circuit clerk that morning, directed defendant to report to the circuit court at the Saline County courthouse on or before July 7,1980.

Defendant appeared before the circuit court later the same day. There is no indication of the circumstances under which he appeared nor whether he was accompanied, but it is clear that no representative of the State’s Attorney’s office was present. The entire record of that proceeding consists of a manila envelope within which the ticket was placed. The envelope bears, in what appears to be the handwriting of three different persons, notations which seem to indicate that defendant appeared, entered a plea of guilty to aggravated battery, and was fined $50 plus costs of $15.

The following day, the State’s Attorney filed an information, sworn to by Officer Sadler, charging “[t]hat on June 10, 1980, in Saline County, Jeffrey D. Pankey committed the offense of Aggravated Battery in that said defendant, in committing a Battery, in violation of Illinois Revised Statutes, Chapter 12 — 3, without legal justification, knowingly caused great bodily harm to Cathy Denny, in that he struck Cathy Denny, in the face with his fist in violation of Paragraph 12 — 4(a) Chapter 38, Illinois Revised Statutes.” Defendant subsequently moved to dismiss the information on double jeopardy grounds. When that motion was argued, apparently before the same judge who had presided at the first proceeding, the State’s Attorney urged that a felony prosecution could be initiated only by indictment or information and only by the State’s Attorney. He further stated that neither he nor his assistant was present during the prior proceeding and urged, in reliance on section 3 — 4(d)(2) of the Criminal Code of 1961, that the prosecution under the information was not barred. That section provides, in relevant part, “a prosecution is not barred within the meaning of this Section 3 — 4 if the former prosecution *** [w]as procured by the defendant without the knowledge of the proper prosecuting officer, and with the purpose of avoiding the sentence which otherwise might be imposed” (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(d)(2)). Defense counsel responded that the Criminal Code specifically allows a defendant to plead to a traffic ticket and that there was nothing at all to indicate that defendant pleaded with the purpose of avoiding a sentence which otherwise might have been imposed. The court subsequently allowed the motion.

In affirming, the appellate court found that there was no evidence of fraud on the part of defendant nor any indication that he procured his own prosecution for the purpose of avoiding a sentence which otherwise might have been imposed. The court rejected the State’s contention that the judgment was void because the proceedings were a nullity. It held, citing People v. Gilmore (1976), 63 Ill. 2d 23, that the failure to charge an offense does not deprive the circuit court of jurisdiction and that any error in charging defendant with a felony by citation and complaint was one of form and not of substance. While acknowledging that there were many improprieties involved in the first proceeding which would require reversal on direct appeal, that court ultimately concluded that the judgment was at most voidable, and the failure of the State to perfect an appeal therefrom precluded the court from disturbing it in this collateral attack.

The State, while acknowledging that the circuit court had subject matter jurisdiction over an aggravated-battery prosecution, argues here that there was no such prosecution before the circuit court on June 11, 1980, because the only representative of the People of the State of Illinois, the State’s Attorney, had not initiated a felony prosecution, and neither knew of nor acquiesced in the proceedings in which the circuit court accepted defendant’s guilty plea to a felony purportedly charged on a traffic form filed by a city police officer. Consequently, the State submits, the circuit court acted beyond its authority in accepting a guilty plea to a felony where no such charge was brought by a representative of the State, and the judgment is therefore void. Alternatively, the State asks that we exercise our supervisory authority and vacate the unauthorized sentence of a fine and remand for sentencing in accordance with the law.

Although it is undisputed that no member of the State’s Attorney’s staff was present on June 11, defendant does attack the State’s assertion, and the appellate court’s factual finding, that the first proceeding was conducted without the knowledge of the State’s Attorney. He contends that the State’s Attorney did not deny knowledge of the plea proceedings when he appeared at the hearing on the motion to dismiss the information, and, absent a denial, it must be presumed that the State’s Attorney performed his official duty to keep informed as to violations of the criminal laws. Alternatively, he argues that even without the knowledge or presence of the State’s Attorney or an assistant, the State was made a party to the proceeding upon the filing of the complaint by the officer, and that this action served to commence the prosecution. While admitting that it was “unusual” for a felony to be charged on a traffic form signed by a municipal police officer and for the subsequent plea and sentencing proceeding to be conducted without involving a representative of the State, defendant urges that the irregularities did not render that proceeding a nullity, and that the judgment thus bars any further prosecution for the same offense. He further argues that there is no evidence of fraud or collusion on the part of defendant which would make the section 3 — 4(d)(2) exception applicable. Finally, defendant asserts that the State cannot collaterally attack the sentence rendered in the original proceeding by this appeal from the circuit court’s order dismissing the subsequently filed information, and that the exercise of this court’s supervisory authority to remand for sentencing is therefore inappropriate.

The State’s Attorney, as a representative of the People of the State of Illinois, has the duty “[t]o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.” (Ill. Rev. Stat. 1979, ch. 14, par. 5(1).) The decision whether to initiate any criminal prosecution at all as well as to choose which of several charges shall be brought are functions within the exclusive discretion of the State’s Attorney. People ex rel. Davis v. Vazquez (1982), 92 Ill. 2d 132, 150; People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 539.

There are three methods by which a criminal prosecution may be commenced in this State: “When authorized by law a prosecution may be commenced by: (a) A complaint; (b) An information; (c) An indictment.” (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 1.) Our rules provide for the form and procedures to be used in traffic and conservation offenses, ordinance offenses, petty offenses and certain misdemeanors, and, under the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 3(b)), when a citation is issued on a uniform traffic ticket or uniform conservation ticket the copy which is filed with the clerk constitutes a complaint to which the defendant may plead unless he specifically requests that a verified complaint be filed. All prosecutions of felonies, however, shall be by information or by indictment. (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 2(a).) This court has held that the form of a charge may be waived by a defendant under certain circumstances (People v. Bradford (1975), 62 Ill. 2d 21; People v. Harding (1966), 34 Ill. 2d 475, 482), and that a defective charging instrument does not operate to deprive the circuit court of subject matter jurisdiction (People v. Rege (1976), 64 Ill. 2d 473, 478; People v. Gilmore (1976), 63 Ill. 2d 23, 27) or necessarily render the charge void (People v. Walker (1980), 83 Ill. 2d 306, 313-14; People v. Pujoue (1975), 61 Ill. 2d 335, 339). While the circuit court here unquestionably had jurisdiction of an aggravated-battery offense, it had no authority to accept a plea of guilty to aggravated battery and enter judgment thereon where no such charge was before the court. In re T.E. (1981), 85 Ill. 2d 326.

There is nothing in the record which indicates that defendant procured his own prosecution for the purpose of avoiding a sentence which otherwise might have been imposed. The record does reveal, however, that there was no aggravated-battery prosecution by the State against defendant on June 11, 1980. Neither the State’s Attorney nor his assistant initiated any such prosecution on that date. Further, we believe that the record shows that the State’s Attorney represented below that he neither knew of nor acquiesced in any such proceeding in the name of the People. Defendant has never contended that the State’s Attorney knew of the prior proceeding. His argument here is that the State’s Attorney did not claim a lack of knowledge, an argument which we believe is contradicted by the record. As we have indicated, the State’s Attorney urged that the prosecution was not barred by virtue of the section 3 — 4(d)(2) exception contained in the Code which states that a prosecution is not barred if the former prosecution “[w]as procured by the defendant without the knowledge of the proper prosecution officer.” (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(d)(2).) In addition, we cannot accept defendant’s assertion that the People of the State of Illinois were made a party to a felony prosecution upon the filing of the traffic citation issued by the police officer. There is no question that a police officer has the authority to make a warrantless arrest of a person if he has reasonable grounds to believe that the person is committing or has committed an offense (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c); People v. Holdman (1978), 73 Ill. 2d 213, 222), and to initiate the stationhouse clerical process generally referred to as “booking.” (See Kamisar, LaFave, & Israel, Modern Criminal Procedure 16 (5th ed. 1980).) It is, however, the State’s Attorney who has the responsibility to initiate and prosecute all actions by and for the People of the State of Illinois (Ill. Rev. Stat. 1979, ch. 14, par. 5), and the police officer’s actions in the first instance must yield to the judgment and discretion of the constitutional officer empowered to act. People v. Woollums (1978), 63 Ill. App. 3d 602, 609.

This case does not involve a traffic or misdemeanor offense which can be charged by a police officer on a uniform traffic ticket form in the name of the People of the State of Illinois. (73 Ill. 2d R. 501.) Rather, the original proceeding here was apparently regarded by the judge as a felony prosecution despite the fact that the only person who could file that charge, the State’s Attorney, was not present and knew nothing of the proceedings. Since the police officer was without authority to prosecute the charge and the State’s Attorney had neither appeared nor acquiesced in the officer’s action, it cannot be said that the circuit court ever acquired jurisdiction over the State in the original proceeding or that the State is estopped from raising that issue. The court’s judgment was, consequently, a nullity. See People v. Kidd (1947), 398 Ill. 405, 410; In re T.E. (1981), 85 Ill. 2d 326.

In these circumstances, the double jeopardy clauses of the Federal and State constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10), which protect a defendant from repeated prosecutions by the State for the same offense (Oregon v. Kennedy (1982), 456 U.S. 667, 671, 72 L. Ed. 2d 416, 422, 102 S. Ct. 2083, 2087; United States v. Scott (1978), 437 U.S. 82, 87, 57 L. Ed. 2d 65, 71-72, 98 S. Ct. 2187, 2192), do not bar the subsequent prosecution. Allowing the State one full opportunity to vindicate its societal interest in the enforcement of the criminal laws (United States v. Jorn (1971), 400 U.S. 470, 483-84, 27 L. Ed. 2d 543, 556, 91 S. Ct. 547, 556) does not amount to “ ‘governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.’ ” (Tibbs v. Florida (1982), 457 U.S. 31, 44, 72 L. Ed. 2d 652, 663, 102 S. Ct. 2211, 2219, quoting United States v. Scott (1978), 437 U.S. 82, 91, 57 L. Ed. 2d 65, 74, 98 S. Ct. 2187, 2194.) Although the government cannot use its own error in filing a defective charging instrument to deny a defendant the double jeopardy protections of a judgment rendered thereon (Benton v. Maryland (1969), 395 U.S. 784, 797, 23 L. Ed. 2d 707, 717, 89 S. Ct. 2056, 2064; United States v. Ball (1896), 163 U.S. 662, 667-68, 41 L. Ed. 300, 302, 16 S. Ct. 1192, 1194), it is the absence of any charge, appearance or acquiescence by the State in these proceedings which renders Benton inapposite here. A judgment entered by a court having no jurisdiction over either the cause or the party is absolutely void and no bar to a subsequent trial in a court which has jurisdiction. United States v. Ball (1896), 163 U.S. 662, 669, 41 L. Ed. 300, 302, 16 S. Ct. 1192, 1194.

Since the State was authorized to appeal the dismissal of the information (73 Ill. 2d R. 604(a)(1)), and consideration of the prior proceeding was necessary to evaluate the double jeopardy claim, the State was not required to appeal from the order entered in the prior proceeding in order to challenge that judgment. People v. Deems (1980), 81 Ill. 2d 384, 391, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378.

We accordingly reverse the appellate and circuit court judgments and remand the cause to the circuit court of Saline County for further proceedings on the aggravated-battery information. In the exercise of our supervisory power (Ill. Const. 1970, art. VI, sec. 16; 73 Ill. 2d R. 315(a); People v. Deems (1980), 81 Ill. 2d 384, 391), we direct the circuit court of Saline County to vacate its judgment of conviction entered pursuant to the plea of guilty on the traffic ticket.

Judgments reversed; supervisory order entered; cause remanded.

JUSTICE MORAN,

specially concurring:

While I concur in the judgment, I disagree with and feel obligated to respond to the statement that reads: “[A] defective charging instrument does not operate to deprive the circuit court of subject matter jurisdiction (People v. Rege (1976), 64 Ill. 2d 473, 478; People v. Gilmore (1976), 63 Ill. 2d 23, 27) or necessarily render the charge void (People v. Walker (1980), 83 Ill. 2d 306, 313-14; People v. Pujoue (1975), 61 Ill. 2d 335, 339).” (94 Ill. 2d at 17.) This is true if the defect is one of form. However, where the defect is one of substance, as in the instant case where the elements of the offense are missing, the charge is void. To render a valid judgment in a criminal case the court must acquire jurisdiction of the person as well as the subject matter of the offense. Whenever an information or indictment fails to set forth the necessary elements of an offense it deprives the circuit court of subject matter jurisdiction.

The court concludes that the circuit court lacks jurisdiction because the State’s Attorney did not bring the charge and neither appeared nor acquiesced in the original proceeding. I agree that the circuit court’s jurisdiction was not properly invoked when the police officer initiated a felony charge on a traffic ticket. But more importantly, I find that the circuit court in this case never acquired subject matter jurisdiction because a proper information containing the necessary elements of an aggravated-battery offense was never filed before it. In my view, in Pujoue, Gilmore and here the court has misconstrued the concept of subject matter jurisdiction in criminal cases.

Before Pujoue, the court consistently had held that in order for a court in a criminal case to acquire jurisdiction of the subject matter, it was essential that the accused be charged with a crime. (People v. Edge (1950), 406 Ill. 490; People v. Harris (1946), 394 Ill. 325; People v. Nickols (1945), 391 Ill. 565; People v. Fore (1943), 384 Ill. 455; People v. Minto (1925), 318 Ill. 293; People v. Buffo (1925), 318 Ill. 380; People v. Wallace (1925), 316 Ill. 120.) In fact, just one year before Pujoue, this position was reaffirmed:

“It is well settled that an indictment which fails to charge a criminal offense is void. (People v. Furman, 26 Ill. 2d 334, 335.) As such, it does not confer jurisdiction upon a court (People ex rel. Kelley v. Frye, 41 Ill. 2d 287, 290), and a conviction resulting therefrom may not be sustained (People v. Harris, 394 Ill. 325, 327; People v. Nickols, 391 Ill. 565, 571; People v. Fore, 384 Ill. 455, 458). A convicted defendant may challenge the validity of an indictment for failure to allege a criminal violation either by direct review or in collateral proceedings. People v. Edge, 406 Ill. 490, 494; People v. Buffo, 318 Ill. 380, 384.” (People v. Wallace (1974), 57 Ill. 2d 285, 288.)

This position was again reaffirmed in People v. Gregory (1974), 59 Ill. 2d 111, 112, where it was said:

“Whether an indictment was void presents a jurisdictional issue which is not to be considered waived by a defendant’s plea of guilty (People v. Reed, 33 Ill. 2d 535, 538-539; People v. Buffo, 318 Ill. 380), and it can therefore be raised at any time. (People v. Wallace, 57 Ill. 2d 285, 288; Ill. Rev. Stat. 1969, ch. 38, pars. 114 — 1(a)(6) and (8), 114-1(b).)”

The basis of this rule is grounded in both the United States and Illinois constitutions. Both require that, in criminal prosecutions, a defendant has the right to be apprised of the nature and cause of the accusations against him. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8. See People v. Barker (1980), 83 Ill. 2d 319, 333 (Moran, J., dissenting).) This constitutional requirement is embodied in section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963, which directs that a criminal charge set forth “the nature and elements of the offense charged.” Ill. Rev. Stat. 1979, ch. 38, par. 111-3(a)()3).

Nevertheless, in Pujoue, this court departed from the well-settled rule. It first stated that the failure to allege an element of an offense in a complaint did not, per se, render it void. It then established a new rule: “When attacked for the first time on appeal a complaint is sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (Emphasis added.) (People v. Pujoue (1975), 61 Ill. 2d 335, 339.) As authority for this proposition, the court cited People v. Grant (1974), 57 Ill. 2d 264, and People v. Harvey (1973), 53 Ill. 2d 585, both of which relied on People v. Patrick (1967), 38 Ill. 2d 255.

In Patrick and Harvey, this court indicated that the use of statutory language in an indictment is sufficient where two requirements are met. The charging instrument must (1) contain the essential elements of the offense, as set forth in the statute, and (2) sufficiently inform the defendant so as to enable him to prepare his defense and also operate as a bar to any subsequent prosecution. The indictments in Patrick and Harvey were found sufficient since both requirements were met. But there is nothing in Patrick or Harvey which changes the need to allege the essential elements of the crime. Nor do these cases support the waiver rule Pujoue advanced.

Pujoue was subsequently followed in People v. Gilmore (1976), 63 Ill. 2d 23. There, after reciting the above-quoted portion of Pujoue, the court went on to state that a charging instrument which failed to charge an offense did not deprive the circuit court of jurisdiction. (63 Ill. 2d 23, 27.) This statement is in direct opposition to what this court had described as the well-settled rule. People v. Wallace (1974), 57 Ill. 2d 285, 288.

Gilmore’s rationale for this position had two foundations — that jurisdiction is conferred on circuit courts by the Constitution rather than by indictment and that the legislature, in section 114 — 1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 1(a)), had distinguished between the absence of jurisdiction and the failure to state an offense. Neither of these reasons, in my opinion, supports Gilmore’s conclusion.

The 1970 Hlinois Constitution abolished the various limited-jurisdiction trial courts and established a single unified trial court — the circuit court. (Ill. Const. 1970, art. VI, sec. 1.) This avoided the multiple trials, “fragmentation and troublesome jurisdictional questions which were the hallmark of the former constitutional and legislative courts of limited jurisdiction, such as the county courts, probate courts, city and municipal courts and others.” (6 Record of Proceedings, Sixth Illinois Constitutional Convention 808. See generally, G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 330-31 (1969).) The Constitution, of necessity, vested original jurisdiction over all justiciable matters in the one remaining trial court. (Ill. Const. 1970, art. VI, sec. 9.) But this change in court structure should not be read as conferring subject matter jurisdiction on the circuit court. Section 9 of article VI allows any justiciable matter, which previously should have been brought in one of the limited jurisdiction courts, to be brought in the circuit court. This same provision was contained in section 9 of article VI of the Judicial Article of 1962, effective January 1, 1964. But subject matter and personal jurisdiction are still required. In fact, even after this constitutional section was adopted, this court said that an indictment which failed to charge an offense deprived the court of jurisdiction. People v. Wallace (1974), 57 Ill. 2d 285, 288.

Gilmore’s second foundation centered on a legislative distinction made in sections 114 — 1(a)(6) and (a)(8) of the Code of Criminal Procedure of 1963. They provide:

“(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
* * *
(6) The court in which the charge has been filed does not have jurisdiction; [or]
* * *
(8) The charge does not state an offense.” Ill. Rev. Stat. 1975, ch. 38, pars. 114 — 1(a)(6), (a)(8).

It must be emphasized that the language of section 114 — 1(a) has not been changed since its enactment in 1963, being prior to the adoption of the 1970 Constitution. At that time, the legislature was well aware of the limited jurisdiction of the various trial courts. A close reading of section 114 — l(a)(6) bears out this awareness. It does not read “the court does not have jurisdiction.” This reading would infer that the other grounds do not raise jurisdictional issues. Apparently, subsection (6) was interpreted in this way in Gilmore. But, on the contrary, this subsection specifically reads “the court in which the charge has been filed, does not have jurisdiction.” This emphasized verbiage implies that some courts in which criminal charges were filed had jurisdiction while others did not. While today there is only one trial court, in 1963 certain trial courts did not have jurisdiction over criminal matters. Through section 114 — 1(a)(6), the legislature merely intended to permit dismissal of a charge when it was filed in the wrong trial court. This interpretation is buttressed by the fact that, as an alternative to dismissal, the legislature allowed the court, without jurisdiction over the criminal matter, to transfer the cause to another trial court having competent jurisdiction. (Ill. Rev. Stat. 1975, ch. 38, par. 114 — 1(f).) Obviously, the emphasized portion of subsection (6) has lost its importance and usefulness since there is only one trial court.

Section 114 — 1(a)(8), on the other hand, followed the well-established rule that a charge which fails to state an offense deprived the trial court of jurisdiction. Such a charge was, therefore, subject to dismissal. Given the trial court structure existing in 1963, there is no inconsistency in separating these two grounds, both of which raised jurisdictional issues. The later constitutional abolition of limited-jurisdiction trial courts ended the need for the separation. However, the mere retention of these sections by the legislature should not be read as a clear indication that a charge which contains a substantive defect is no longer a jurisdictional issue. Neither the General Assembly by legislation nor this court by opinion can deny a person his constitutional right of due process.

This conclusion is fortified by a close reading of the committee comments to section 114 — 1(a)(8), which state:

“Subsection (a)(8) permits the motion to dismiss where the charge does not state an offense. In accordance with Article 111, charge refers to the complaint, indictment or information. Since a charge which does not state an offense does not give defendant a full notice of why he is being tried, and the charge will not support a judgment unless an offense is stated therein, due process would be violated and may be attacked at any time. (See section 114 — 1(b) of this Code; and see generally People v. Clark, 256 Ill. 14, 99 N.E. 866 (1912).)” (Emphasis added.) Ill. Ann. Stat., ch. 38, par. 114 — 1, Committee Comments, at 197-98 (Smith-Hurd 1977).

Further support can be found in section 114 — 1(b), where the legislature addressed the issue of waiver by stating:

“(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.” (Ill. Ann. Stat., ch. 38, par. 114 — 1(b) (Smith-Hurd 1977).)

The committee comments to that section state:

“Special notice should be made of subsections 114— 1(b) ***. Subsection (b) provides that all of the grounds for a motion to dismiss may be waived except those which deprive the court of its jurisdiction, i.e., (6) and (8). These exceptions to waiver must be made since they involve constitutional rights which may not be waived. ***” (Emphasis added.) Ill. Ann. Stat., ch. 38, par. 114 — 1, Committee Comments, at 198 (Smith-Hurd 1977).

In this case the complaint did not set forth the necessary elements of aggravated battery and was therefore void for failure to state a criminal offense. Since the charging instrument was void, the trial court did not obtain the necessary subject matter jurisdiction over the offense in order to entertain defendant’s plea of guilty. Lacking subject matter jurisdiction, the trial court’s judgment was subject to collateral attack by the State. It is for the above-stated reasons that I concur in the judgment of reversal.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court. There is nothing in the record which indicates that the defendant acted to procure the original proceeding, that it was commenced in order to avoid a heavier sentence, or which shows that the State’s Attorney was unaware of the prior proceedings. Under the circumstances section 3 — 4(d)(2) is clearly inapplicable.

The majority states that the court did not acquire jurisdiction over the State in the original proceedings. There is no authority for this statement, and it is most conspicuously absent from the two cases cited in support of it. The majority and the People concede that the court had jurisdiction over the subject matter and the defendant, and the contention that the court was without jurisdiction over the State is utterly without merit.

The appellate court noted correctly that the appropriate procedure on the part of the People would have been to appeal from the order of the circuit court. This was not done, and the instant attack comes too late.

CLARK and SIMON, JJ., join in this dissent.