author: MR. JUSTICE KLUCZYNSKI

text:
    (No. 52078.
    BODINE ELECTRIC COMPANY, Appellant, v. ROBERT H. ALLPHIN, Director of Revenue, Appellee.

      Opinion filed. September 15, 1980.

      Robert D. Boyle, of Tully, Roddy, Weinstein & Boyle, of Chicago, and Henry M. Grannan, of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (John D. WhiteNack, Special Assistant Attorney General, of Chicago, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Plaintiff, Bodine Electric Company, filed a claim for refund of 1969 and 1970 Illinois income taxes with the Department of Revenue, asserting that it was entitled to carry back and deduct a 1971 net operating loss in the taxable years 1969 and 1970 under the provisions of the Illinois Income Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 1 — 101 et seq.). Defendant, the Director of the Department of Revenue, ruled that plaintiff was not entitled to a refund of Illinois taxes for those years. On review, the circuit court of Cook County reversed the decision of the Department. Defendant appealed, and the appellate court reversed the circuit court’s judgment and reinstated the determination of the Department of Revenue. Plaintiff appealed to this court pursuant to Rule 315 (73 Ill. 2d R. 315), and we granted leave to appeal. We now affirm.

The facts relevant to this appeal are not in dispute and are accurately developed in the appellate court opinion (70 Ill. App. 3d 844). Briefly restated, from 1968 through 1971, plaintiff filed consolidated Federal income tax returns with its wholly owned subsidiary, Microdyne, Inc. Subsequent to the enactment of the Illinois Income Tax Act in 1969, plaintiff and its subsidiary, in compliance with section 203(d)(2)(E) of the Act (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 203(d)(2)(E)) filed separate returns for State tax purposes from 1969 through 1971. Plaintiff’s 1971 separate Illinois tax return reflected a substantial net operating loss due to the sale of its interest in Micro-dyne and the sale of Microdyne’s accounts receivable. Plaintiff’s 1971 consolidated Federal income tax return reflected taxable income.

Throughout the relevant period, section 172 of the Internal Revenue Code (26 U.S.C. sec. 172 (1970)) permitted net-operating-loss deductions to be carried back three years from the taxable year in which the loss was sustained and then carried forward a maximum of five years until the entire loss was absorbed. The Department found that if plaintiff had filed its Federal return on a separate basis throughout the relevant period — a computation required for State income tax purposes by the recently enacted Illinois Income Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 203(d)(2)(E))—the returns would reflect Federal taxable income in the years 1968 through 1970. Its 1971 separate return would reflect a loss, due to the sale of Microdyne and its accounts receivable. In addition, the Department found that, if plaintiff had elected to carry back its 1971 net operating loss pursuant to section 172 of the Internal Revenue Code on its Federal return, this loss would have been absorbed by plaintiffs 1968 income, precluding any change in plaintiffs Federal taxable income for the years 1969 and 1970. Since the starting point in determining a corporation’s Illinois income tax is its Federal taxable income (Ill. Rev. Stat. 1971, ch. 120, pars. 2-201, 2-202, 2-203(b)(l), 2 — 203(d)(1)), and since plaintiffs 1969 and 1970 Federal taxable income would not be affected by plaintiff’s 1971 loss, the Department concluded that plaintiff was not entitled to a State tax refund for 1969 and 1970. The circuit court reversed, but the appellate court reinstated the Department’s determination, and this appeal followed. The issue presented is whether the taxpayer is entitled to a State tax refund of 1969 and 1970 taxes as the result of a 1971 net-operating-loss deduction where the loss would be totally absorbed by the taxpayer’s 1968 Federal taxable income under the provisions of the Internal Revenue Code. As noted by the appellate court, the relationship between the Illinois Income Tax Act and the Internal Revenue Code is dispositive of the issue presented.

On August 1, 1969, the Illinois Income Tax Act became effective. Under the Act, “[a] tax measured by net income is *** imposed on every *** corporation” (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 201). Net income is defined by the Act as that portion of the taxpayer’s “base income for such year which is allocable to this State *** less the standard exemption ***.” (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 202.) A corporation’s base income is equal to the taxpayer’s “taxable income” (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 203(b)(1)), subject to certain adjustments not directly relevant here (Ill. Rev. Stat. 1971, ch. 120, par. 203(b)(2)). Taxable income is defined as “taxable income properly reportable for federal income tax purposes for the taxable year under the provisions of the Internal Revenue Code.” (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 203(d)(1).) Section 403(a) provides that “[t] o the extent not inconsistent with the provisions of this Act ***, each person making a return under this Act shall take into account the items of income, deduction and exclusion on such return in the same manner and amounts as reflected in such person’s federal income tax return for the same taxable year.” (Ill. Rev. Stat. 1971, ch. 120, par. 4 — 403(a).) If a corporate taxpayer has filed a consolidated Federal income tax return, as in the present case, the Act provides that taxable income is “determined as if such corporation had filed a separate return for federal income tax purposes for the taxable year and each preceding taxable year.” (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 203(d)(2)(E).) The combined operation of these provisions serves to establish Federal taxable income as the starting point upon which State tax liability is computed.

In addition, section 506(b) provides that, in the event that the amount of Federal taxable income or loss is altered by amendment, recomputation, or redetermination, the taxpayer shall notify the Department of such change. (Ill. Rev. Stat. 1971, ch. 120, par. 5 — 506(b).) As amended in 1973, this provision specifies a carry back adjustment as a change in Federal income tax. (Ill. Rev. Stat. 1973, ch. 120, par. 5 — 506(b).) Section 911(b) provides that where notification of a change is required by section 506(b), a claim for refund may be filed with the Department, limiting the amount recoverable to any overpayment resulting from recomputation of the taxpayer’s base income. (Ill. Rev. Stat. 1971, ch. 120, par. 9 — 911(b).) As amended in 1973, this provision allows a claim for refund as a result of a carry back adjustment as a change in Federal income tax. Ill. Rev. Stat. 1973, ch. 120, par. 9 — 911(b).

At first glance, these provisions would appear to evidence the legislature’s intent to allow the State taxpayer the advantage of deducting a net operating loss only insofar as the changes reflected on its Federal income tax return affect the computation of Illinois base income. Plaintiff argues in this court, however, that section 102 of the Illinois Income Tax Act incorporates by reference the provisions of the Internal Revenue Code which are not inconsistent with the Act. Section 102 of the Act provides:

“Construction. Except as otherwise expressly provided or clearly appearing from the context, any term used in this Act shall have the same meaning as when used in a comparable context in the United States Internal Revenue Code of 1954 or any successor law or laws relating to federal income taxes and other provisions of the statutes of the United States relating to federal income taxes as such Code, laws and statutes are in effect for the taxable year.” (Ill. Rev. Stat. 1971, ch. 120, par. 1-102.)

Plaintiff maintains that the provision creates a parallel set of Illinois deductions, including an “Illinois net-operating-loss deduction” equivalent to that contained in section 172 of the Federal Code. Plaintiff contends that the refusal of the Department and the appellate court to recognize this Illinois deduction results in the imposition of a retroactive tax on income earned prior to the effective date of the Illinois Income Tax Act, contrary to the mandate of our decisions in Mitchell v. Mahin (1972), 51 Ill. 2d 452, and Thorpe v. Mahin (1969), 43 Ill. 2d 36. In Mitchell and Thorpe, the court held that the Illinois act taxes appreciation in property value which occurs only after August 1, 1969, the effective date of the Act. Plaintiffs argument that its 1971 net operating loss should be carried back no farther than the effective date of the Act is premised on the fact that income was not taxable under the Illinois Income Tax Act in 1968, the year preceding enactment of the Act and the year to which a 1971 net operating loss would, under existing Federal practice, be carried. Plaintiff contends that Illinois losses cannot be carried back beyond 1969, since there was no income taxable under Illinois law prior to that year. In addition to Mitchell and Thorpe, plaintiff directs us to the decisions of other jurisdictions which have refused to apply the provisions of section 172 of the Internal Revenue Code literally and have limited the carry back to post-effective-date taxable years under their respective taxing statutes. See, e.g., In re Avien, Inc. (2d Cir. 1976), 532 F.2d 273 (taxpayer properly claimed only post-effective-date net operating losses); Production Credit Association v. Department of Treasury (1978), 404 Mich. 301, 273 N.W.2d 10 (taxpayers not required to carry back net operating losses to years preceding enactment of tax statute).

Defendant, seeking to sustain the judgment of the appellate court, argues that section 172 of the Internal Revenue Code has not been incorporated by the Act. Defendant maintains that, although the legislature has adopted Federal taxable income as the starting point for computation of State corporate income tax, it has not enacted a specific statutory provision allowing a State deduction for a net operating loss. In support of this position, defendant points out that subsequent to the decision of this court in Thorpe, and during the pendency of the action in Mitchell, the legislature amended the section of the Act defining base income for corporations. This amendment, section 203(f)(4), provides:

“Legislative intention. Except as expressly provided by this section, there shall be no modifications or limitations on the amounts of income, gain, loss or deduction taken into account in determining gross income, adjusted gross income or taxable income for federal income tax purposes for the taxable year, or in the amount of such items entering into the computation of base income and net income under this Act for such taxable year, whether in respect of property values as of August 1, 1969 or otherwise.” (Ill. Rev. Stat. 1971, ch. 120, par. 2-203(f)(4).)

In addition, defendant contends that tax deductions are a privilege created by statute as a matter of legislative grace and that the taxpayer must establish compliance with the statutory conditions imposed.

Having reviewed relevant statutory provisions and having considered the arguments of the parties, we find no merit in plaintiffs claim for a refund of 1969 and 1970 taxes. At the outset, we note our agreement with the appellate court that section 102 of the Act provides only that, as a rule of construction, the terms of the Act shall have the same meaning “as when used in a comparable context in the United States Internal Revenue Code ***.” (Ill. Rev. Stat. 1971, ch. 120, par. 1 — 102.) This section does not, by itself, incorporate substantive provisions of the Code such as section 172, so as to allow a State taxpayer to compute a net operating loss on a State tax return. In this respect, we find the cases cited by plaintiff to be inapposite, since the courts there found that the respective tax laws under review adopted section 172 (In re Avien, Inc. (2d Cir. 1976), 532 F.2d 273, 275, 277) or “that a net operating loss deduction was contemplated by the Legislature” (Production Credit Association v. Department of Treasury (1978), 404 Mich. 301, 315, 273 N.W.2d 10, 15).

We also do not agree with plaintiff that the discussion of section 102 in Thorpe v. Mahin (1969), 43 Ill. 2d 36, 49, supports the plaintiffs position that the section incorporates by reference section 172 of the Internal Revenue Code. At issue in Thorpe was the computation of an individual taxpayer’s adjusted gross income under the provisions of the Act. To the extent that the provisions of the Internal Revenue Code entered into the computation of this figure, the provisions of the Code were relevant under the Illinois Income Tax Act. As noted here by the appellate court, however, there is no provision in the Act which specifically adopts all federally allowed deductions. The Act does specifically adopt “taxable income properly reportable for federal income tax purposes for the taxable year under the provisions of the Internal Revenue Code” (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 203(d)(1)) as the starting point upon which State tax liability is computed for a corporate taxpayer. To the extent that federally allowed deductions enter into the computation of this figure, they are relevant under the Illinois Income Tax Act. This does not, however, create a parallel set of “Illinois deductions.”

We find further support for our conclusion in section 506(b) (Ill. Rev. Stat. 1973, ch. 120, par. 5-506(b)) and section 911(b) (Ill. Rev. Stat. 1973, ch. 120, par. 9 — 911(b)) of the Act. As described more fully above, these sections authorize a refund of State taxes when a change in the Federal taxable income resulting from a loss carry back effects a change in State base income. These provisions clearly evidence the legislature’s intent that a net-operating-loss deduction is relevant to the computation of Illinois tax liability only insofar as this deduction enters into the computation of base income under the relevant provisions of the Act.

That there is no separate set of “Illinois deductions” is further made apparent by the General Assembly’s 1971 amendment of section 203(f)(4) (Ill. Rev. Stat. 1971, ch. 120, par. 2 — 203(f)(4)) of the Act to provide, as stated previously, that “there shall be no modifications or limitations on the amount of income, gain, loss, or deduction taken into account in determining gross income, adjusted gross income or taxable income for federal income tax purposes for the taxable year, or in the amount of such items entering into the computation of base income *** for such taxable year” (emphasis added), except as expressly provided by this section. Section 2 — 203 does not expressly provide for any such modification or limitation, and this, we believe, evidences the legislature’s intention that a taxpayer be precluded from carrying back its net operating loss in a manner inconsistent with that which would be allowed under the Internal Revenue Code.

Plaintiff contends, however, that the failure to recognize an “Illinois net-operating-loss deduction” will result in an impermissible retroactive application of the Illinois Income Tax Act. Plaintiff argues that, for State purposes, its 1971 net operating loss cannot be carried back to 1968, as is required under Federal law, because it had no income in 1968 taxable under Illinois law against which a 1971 loss could be set off. To require a carry back to 1968, it is argued, would result in the retroactive application of the Illinois Income Tax Act.

One faulty premise of plaintiff’s argument is that net operating losses are set off against Illinois income. To the contrary, such losses are set off against Federal income through the operation of section 172 of the Internal Revenue Code, and it is undisputed that plaintiff did have income in 1968 taxable under Federal law.

Second, and more importantly, our holding does not result in the retroactive imposition of tax liability, the problem that concerned the court in Thorpe v. Mahin (1969), 43 Ill. 2d 36, and Mitchell y. Mahin (1972), 51 Ill. 2d 452. Plaintiff is not taxed on income earned prior to the effective date of the Act; it is denied a deduction in two years in which the Act was in effect, 1969 and 1970. (Cf. Niagara Searchlight Co. v. Commissioner (1953), 20 T.C. 745, 746 (retroactivity attack on a tax statute amendment rejected in part on the ground that the loss sought to be deducted was incurred in the year in which the amendment was passed).) This denial of a deduction results from the General Assembly’s choice of Federal taxable income as the starting point in determining income taxable under Illinois law; since plaintiff’s 1969 and 1970 Federal taxable income is unaffected by a 1971 net operating loss, there is no change in plaintiff’s 1969 and 1970 income taxable under Illinois law. The resulting denial of a deduction in the years 1969 and 1970, however, does not alone require that we allow plaintiff to deviate from the General Assembly’s intention to require the use of Federal taxable income as the starting point in determining Illinois tax liability. Our reading of the Act indicates that the General Assembly, by adopting Federal taxable income as the starting point in determining State income tax liability, intended to simplify tax computation and to develop some degree of consistency in Federal and State income reporting. It also seems reasonable to infer that the General Assembly, in adopting Federal taxable income as a determinant of Illinois tax liability, was aware of the possibility that, in so doing, cases would arise in which net operating losses sustained after the effective date of the Act would be carried back, as required by Federal law, to years preceding the effective date of the Act, thereby resulting in no tax benefit. Though a given taxpayer may therefore enjoy no tax benefit from a particular loss, we cannot say that the scheme adopted by the General Assembly is an improper exercise of its taxing authority. In this regard, we also note that the court in Thorpe v. Mahin (1969), 43 Ill. 2d 36, 49, found no constitutional infirmity in the General Assembly’s adoption of Federal taxable income as a determinant of Illinois income tax liability.

Finally, we note our agreement with the appellate court that “[t] he granting of a deduction for net operating losses is a privilege created by statute as a matter of legislative grace” (70 Ill. App. 3d 844, 850, citing, United States v. Olympic Radio & Television, Inc. (1955), 349 U.S. 232, 99 L. Ed. 1024, 75 S. Ct. 733) and that “the taxpayer is not entitled to a deduction unless clearly allowed by statute and the burden is on the taxpayer to show he is entitled to the deduction claimed.” (70 Ill. App. 3d 844, 850, citing, Payne v. United States (U.S. Ct. Cl. 1974), 489 F.2d 1404, 1407.) We are not persuaded that the taxpayer has met that burden here.

For the reasons stated, we affirm the judgment of the appellate court.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 52843.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHN McTUSH, Appellee.

      Opinion filed, September 15, 1980.

      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 Marcia B. Orr and Paul C. Gridelli, Assistant State’s Attorneys, of counsel), for the People.

      Ralph Ruebner, Deputy Defender, of the Office of State Appellate Defender, of Chicago (Gary Ravitz, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, John McTush, was convicted of murder and armed robbery and burglary on October 19, 1977, by a jury in the circuit court of Cook County. Lonzell Stone, a codefendant, was tried without a jury contemporaneously and was also found guilty “in manner and form as charged in the indictment.” After a hearing in aggravation and mitigation, McTush was sentenced to a term of 60 to 90 years’ imprisonment and Stone was sentenced to a term of 25 to 50 years. On appeal to the appellate court (78 Ill. App. 3d 603), the convictions of McTush were vacated and the cause remanded for an evidentiary hearing regarding the existence of an independent origin for a witness’ in-court identification of McTush. Stone’s conviction for armed robbery was reversed, his remaining convictions were affirmed, his sentence was vacated, and the cause was remanded for resentencing. The State appealed from the appellate court’s judgment. We granted its petition for leave to appeal. (73 Ill. 2d R. 315(a).) Only the validity of McTush’s convictions is involved in this appeal.

On February 20, 1976, two men were observed entering the Kar-Life Battery Station at 6959 South Ashland Avenue in Chicago. According to the testimony of Terrence Watson, who was 11 years old at the time of the occurrence, he saw David Thomas, an employee of the battery shop, strike McTush in the mouth. McTush then shot Thomas four or five times and removed what was circumstantially proved at trial to be the shop’s cash receipts from Thomas’ jacket pocket. Terrence further testified that the other man, later identified as Lonzell Stone, went to the rear of the shop, out of his line of sight. Moments later Terrence heard more gunshots. Police officers who later searched the shop found the body of Dennis Harrison in the rear of the shop. He had been shot two times. As the men turned to come out of the shop toward their car, they looked directly at Terrence. Terrence then ran east on 70th Street toward Justine Avenue in a direction away from his home. After the men drove away, Terrence went home. Terrence later testified at trial that he saw the two men drive away in a black and brown Oldsmobile Delta 88 with a dent in the right fender. Terrence’s mother, Mrs. Ira May Watson, looking from her kitchen window on the second floor of an apartment building adjacent to the battery shop, observed two men leave the shop and noticed that one of the men “strongly resembled” McTush.

On March 18, 1976, Terrence and his mother viewed a lineup, consisting of five black males of approximately equal height. One of the members of the lineup was McTush. Stone was not in the lineup. Neither Terrence Watson nor his mother identified any of the members of the lineup as a perpetrator of the offenses at the battery shop.

Subsequently, on May 24, 1976, shortly before testifying before the grand jury, Terrence and his mother were interviewed by an assistant State’s Attorney. While his mother waited in another room, Terrence was shown a photograph of a separate lineup conducted on February 21, 1976. Terrence identified Stone from the photograph. McTush had not participated in that lineup. Terrence was then shown six photographs of various persons. Upon viewing the six photographs, Terrence indicated McTush as the man who had been with Stone on February 20, 1976. He also said that he had observed this same man in the lineup conducted on March 18, 1976. Mrs. Watson was unable to make a positive identification but she stated that McTush “strongly resembled” the man in the gray coat she witnessed leaving the battery shop.

At a hearing on a motion to suppress Terrence’s out-of-court identifications of Stone and McTush, the trial court granted the motion as to the May 24, 1976, identification of McTush on the ground that it was impermissibly suggestive. The court said, however, that if evidence of an independent origin for the identification, apart from the identification made May 24, 1976, could be adduced, then Terrence could subsequently make an in-court identification of McTush. The court requested that defense counsel attempt to establish that there existed an independent origin for Terrence Watson’s identification of McTush. The defense then called Terrence Watson and the following exchange occurred:

“Q. [MR. DEUTSCH] Okay. Now, what happened when you looked in that window? What did you see?
A. Well, I seen David Thomas hit McTush. I seen this man hit McTush in the mouth.
Q. Now, you seen David Thomas hit McTush in the mouth. Who’s David Thomas?
A. The man that used to work in the battery shop.
Q. And when you saw — how did you know it was McTush?
A. He used to sit around the house.
Q. What house?
A. Over there where Stone lives at.
Q. Where is that?
A. Across the street from my house.
Q. What else did you see when you looked in that window?
THE COURT: I don’t have to go any further.
MR. ROBBINS: I will object, your Honor.
THE COURT: I don’t have to go any further. I have heard enough. This witness is competent. He has an independent basis on which he can make a judgment and identification and I so hold.
I will prohibit the State from offering any evidence with reference to his photographic identification. You can cross-examine him in the presence of the jury and let the jury determine his believability with reference to his identification of your client.
The motion to suppress will be denied — sustained in part and denied in part. All right. Step down, son.”

Subsequently, at McTush’s trial, the defendant, on cross-examination of Terrence, asked Terrence questions concerning his identification of Stone on May 24, 1976. On redirect examination, the State also asked Terrence several questions concerning Terrence’s identification of Stone. No questions were asked of Terrence concerning his out-of-court identification of McTush. Terrence did testify in detail, however, as to his observation of McTush and Stone on February 20, 1976. Terrence also testified that he did not tell the police that he knew McTush soon after he observed the offenses being committed because he was afraid. Finally, Terrence testified that McTush occasionally lived with Stone across the street from him and he indicated which house on a diagram.

On appeal of McTush’s conviction and sentence, the appellate court vacated the judgments of conviction against him, pending a hearing in the trial court at which the State would be given an opportunity to prove the reliability of the in-court identification and its origin independent of any improperly suggestive identification procedure.

Thus, the issue presented is whether Terrence’s in-court identification of McTush was based on an out-of-court photographic identification which was so impermissibly suggestive as to create a substantial risk of irreparable misidentification. In Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Gt. 967, the defendant was convicted of armed robbery of a federally insured savings and loan association. The evidence which the defendant argued tainted the witnesses’ in-court identifications consisted of at least six photographs, most of which were group photographs, in which the defendant, Simmons, and another defendant appeared. Each of five employees of the savings and loan separately identified Simmons as one of the robbers. At trial, the government did not introduce any evidence concerning the photographs, but relied upon in-court identification by the five eyewitnesses, each of whom testified that Simmons was one of the robbers. (390 U.S. 377, 382, 19 L. Ed. 2d 1247, 1252, 88 S. Ct. 967, 970.) The court stated that despite the hazards of identification by photograph, those hazards are substantially lessened by the opportunity afforded to defense counsel to cross-examine an eyewitness at trial and thereby expose any potential for misidentification. Thus, the court concluded:

“[W] e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971.)

(Accord, Coleman v. Alabama (1970), 399 U.S. 1, 5-6, 26 L. Ed. 2d 387, 394, 90 S. Ct. 1999, 2001.) The court in Simmons subsequently rejected the defendant’s due process attack on his conviction by finding that any suggestion in the pretrial identification had not affected the fairness of the in-court identification, first, because it was essential for FBI agents swiftly to determine whether they were accurate in pursuing those suspects. The court continued:

“In the second place, there was in the circumstances of this case little chance that the procedure utilized led to misidentification of Simmons. The robbery took place in the afternoon in a well-lighted bank. The robbers wore no masks. Five bank employees had been able to see the robber later identified as Simmons for periods ranging up to five minutes. Those witnesses were shown the photographs only a day later, while their memories were still fresh. At least six photographs were displayed to each witness. Apparently, these consisted primarily of group photographs, with Simmons and Andrews each appearing several times in the series. Each witness was alone when he or she saw the photographs. There is no evidence to indicate that the witnesses were told anything about the progress of the investigation, or that the FBI agents in any other way suggested which persons in the pictures were under suspicion. ” Simmons v. United States (1967), 390 U.S. 377, 385, 19 L. Ed. 2d 1247, 1254, 88 S. Ct. 967, 971-72.

While it is the defendant’s burden to establish that the pretrial confrontation was impermissibly suggestive [People v. Blumenshine (1969), 42 Ill. 2d 508, 511), once accomplished, the State may nevertheless overcome that obstacle, by a clear and convincing showing, based on the totality of the surrounding circumstances, that “the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime.” Manson v. Brathwaite (1977), 432 U.S. 98, 122, 53 L. Ed. 2d 140, 159, 97 S. Ct. 2243, 2257 (Marshall, J., dissenting); People v. Lee (1973), 54 Ill. 2d 111, 118.

The State has not disputed the point in its briefs, and therefore has in effect conceded, that the photographic identification procedure used in this case was suggestive. Since the case has reached us in this posture, we do not pass on the question of suggestiveness. Moreover, though the trial court erred in requesting the defendant to go forward to establish evidence of independent origin at the suppression hearing, that error is not relevant herein. We are not concerned with Terrence’s testimony during the suppression hearing since he testified as to how he knew McTush again at trial. In any event, since defense counsel acquiesced to eliciting evidence of independent origin from Terrence during the suppression hearing, and voiced no objection, any error is waived. We are only concerned with whether an independent origin exists to establish separate reliability for Terrence’s in-court identification testimony, or, negatively stated, whether the suggestive procedure created a substantial risk of misidentification, without a sufficient, separate basis of reliability. (See generally E. Cleary & M. Graham, Illinois Evidence sec. 611.17, at 325-26 (3d ed. 1979).) It was stated in Manson v. Brathwaite that “reliability is the linchpin in determining the admissibility of identification testimony ***.” (432 U.S. 98, 114, 43 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253.) The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. (Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, 382; see People v. Manion (1977), 67 Ill. 2d 564, 571.) This court has added another factor in determining whether a witness’ identification has an independent origin: “any acquaintance with the suspect prior to the crime.” People v. Blumenshine (1969), 42 Ill. 2d 508, 514.

Applying those factors to this case, we think that though there is no direct evidence of lighting conditions which would have enabled Terrence Watson to view the crime, Terrence’s description of what he saw inside the battery shop creates a clear implication that the lighting was sufficient. Terrence testified that he saw Thomas, one of the victims, strike McTush; he saw McTush shoot Thomas and then search the victim’s pockets. Terrence also saw Stone walk through the shop to the back room. It is certainly reasonable to infer that Terrence was afforded ample time and lighting to witness these acts. See People v. Allender (1977), 69 Ill. 2d 38, 43-44.

Secondly, Terrence’s detailed depiction of events indicates that he was closely attentive to the enactment of the murder and armed robbery. The fact that he ran from the scene of the crimes when the men turned and looked at him evinces the conclusion that he was cognizant of the gravity of the scene he had witnessed and that he had viewed it with the close attention accorded unusual occurrences.

Thirdly, Terrence described McTush to the investigating police officers as wearing a black leather coat. At trial, he stated that the person he later identified as McTush wore a gray leather jacket on February 20, 1976. We do not think the minor discrepancy between the two descriptions of the leather coat materially diminishes the reliability of the identification.

Fourth, Terrence was certain at the May 24, 1976, photographic identification that McTush was the man who accompanied Stone at the battery shop on February 20, 1976. Moreover, the fact that Terrence also stated on May 24, 1976, that McTush was the same man he saw in the lineup on March 18, 1976, reduces the impact of his failure to identify McTush on March 18. Additionally, although there was no explanation in the record as to why he ceased being afraid, we find plausible Terrence’s testimony that he did not identify McTush on March 18 because he was afraid, especially since Terrence was only 11 years old at the time he witnessed the offenses.

Fifth, while three months passed between the crime and the confrontation, in the intervening time Terrence viewed the defendant McTush in a lineup. Finally, and most significantly, Terrence testified at both the suppression hearing and at trial that he had seen McTush “four or five times” prior to February 20, 1976, and that McTush was an acquaintance of Terrence’s brother. Therefore, we think that an “informed judgment” (People v. Blumenshine (1969), 42 Ill. 2d 508, 513) is inferable from the record that an independent origin for Terrence’s in-court identification has been clearly and convincingly established so as to assuage any risk of misidentification. (Accord, People v. Allender (1977), 69 Ill. 2d 38 (where a police officer had ample independent basis for making a positive in-court identification of defendant when he observed defendant and another man for 15 or 20 seconds through a window, though his vision was obscured by dirt and protective bars on the window); People v. Robinson (1969), 42 Ill. 2d 371, 375-76; People v. Nelson (1968), 40 Ill. 2d 146, 151 (defendants were known to the eyewitnesses prior to the commission of offenses).) Accordingly, no need exists to remand to the circuit court for an evidentiary hearing regarding an independent origin of reliability for Terrence’s in-court identification. The judgment of the appellate court vacating the convictions of McTush and remanding the cause to the circuit court is reversed, and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 52525.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JUDY MEEKS, Appellee.

      Opinion filed September 15, 1980.

      William J. Scott, Attorney General, of Springfield, and Scott Wilzbach, State’s Attorney, of Williamson (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Thomas R. Lamont and Keith P. Vanden Dooren, of Springfield, and Raymond F. Buckley, Jr., and Stephen J. Maassen, of Mt. Vernon, of the State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John P. Coady, Public Defender, of Taylorville, for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

Defendant, Judy Meeks, was convicted in a jury trial in the circuit court of Marion County of three counts of unlawful delivery of a controlled substance, phencyclidine (PCP) (Ill. Rev. Stat. 1977, ch. 561/2, par. 1401(d)), and was sentenced to three concurrent two-year terms of imprisonment. The appellate court determined that the sentencing hearing was not conducted in compliance with the directives of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) and remanded the cause for resentencing. (75 Ill. App. 3d 357.) The appellate court specifically ruled that the presentence report did not comply with the requirements of section 5 — 3—1 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1) and further held that the trial judge considered improper and unreliable evidence in determining the appropriate sentence to impose. We allowed the State’s petition for leave to appeal.

Following defendant’s conviction, a sentencing hearing was held on July 12, 1978. Defendant elected to be sentenced under the recently amended Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.). A presentence report of investigation, compiled by defendant’s probation officer, was submitted at the hearing and considered by the trial judge. By agreement of the parties, the trial judge appended to the presentence report a medical report and a handwritten statement by defendant directed to the trial judge and probation officer. In addition, evidence was presented in aggravation and mitigation of the offense.

The presentence report indicated that defendant was 23 years of age, the mother of a three-year-old son, 41/2 months pregnant, and single. Defendant graduated from high school and had completed two semesters of college. In addition, she had completed a course of study in secretarial skills and a two-week course of study in law enforcement. From 1974 through 1976 she was employed by the Black Labor Area Coalition Council, Carbondale, as a counselor. For six months prior to the sentencing hearing, defendant was employed by the Chicago Transit Authority as a bus driver. The report stated that her physical health was good and that she had never received psychiatric treatment. Defendant’s prior criminal record consisted of a conviction and sentence of a fine for the offense of disorderly conduct in 1976 and conviction and a sentence of one year of probation for the offense of retail theft on Februay 24, 1977. The summary of the presentence investigation interview with defendant indicated that she did not desire a sentence of imprisonment and that she insisted that she was innocent of the offenses for which she had been convicted. Also interviewed by the probation officer was Fred Gibson, principal of Centraba High School. He stated that defendant was arrogant and bebigerent while a student in high school and he doubted that her attitude had changed. In addition, the probation officer commented that defendant had not complied with the conditions of her probation for retail theft and stated that “Judy Meeks scoffed at probation and had very little appreciation for the opportunity.” This report also contained information pertaining to defendant’s rebgious preference, economic status, and family background.

In the letter presented to the trial judge and the probation officer, defendant stated that she had reconsidered the statements made in her presentence investigation interview. She indicated her desire to care for the future needs of her children, especially noting her son’s need for her emotional and physical support. She stated that she wished to continue her employment with the Chicago Transit Authority and desired to further her education. She ended this letter with a plea to be sentenced to a period of probation.

Defendant called three witnesses at the sentencing hearing. The first witness to testify was Sara Rogers, a mental health worker employed at the Murray Children Center in Centralia. She stated that she had known defendant for approximately eight years and that throughout this period they had frequently socialized. She stated that defendant had often cared for her children as a baby sitter and that she knew defendant to be a responsible mother. Mrs. Rogers did not contemplate that defendant might in some way become involved in criminal conduct, and she did not believe that defendant posed a threat to the community. On cross-examination, she stated that she was aware of defendant’s prior convictions for disorderly conduct and retail theft and aware of the circumstances which led to the sentencing hearing.

Reverend Albert J. Ross, executive director of Black, Inc., Black Labor Area Coalition Council, was the next witness called by defendant. Reverend Ross testified that he had known defendant for five to six years and that he came to know her through her employment as a counselor for the Black Labor Area Coalition Council. It was his opinion that defendant was a responsible and conscientious person who possessed a moral and social consciousness that would prevent her from deliberately hurting herself or her family. He did not think that a sentence of imprisonment was necessary, nor did he believe that defendant was likely to engage in further criminal conduct. On cross-examination, Reverend Ross stated that he would have entertained the same opinion concerning defendant’s involvement in further criminal conduct after her conviction for disorderly conduct in 1966, and her conviction for retail theft in 1977.

Doris Meeks, mother of defendant, also testified. She stated her concern for her daughter if she were imprisoned while pregnant and her concern for her grandson. She indicated that defendant had recently announced her plans to marry. On cross-examination, she stated that she had cared for defendant’s son for a two-month period while defendant was working in Chicago.

The State called Patsy Blackburn, previously employed at the Marion County probation office as a secretary, and James Griffith, defendant’s probation officer. The offenses for which defendant was convicted in the present case occurred while defendant was serving her sentence of probation for retail theft. Blackburn and Griffith testified that defendant was uncooperative while serving this sentence of probation. Miss Blackburn stated that on one occasion defendant was belligerent, disrespectful, angry and intimidating during an interview. In addition, she stated that defendant provided her with either incorrect or false information. Griffith testified that defendant did not faithfully adhere to the conditions of her probation. He also observed that defendant had provided the office with inaccurate and false information on matters related to her probation. In addition, Griffith stated that he had contacted the Dwight Reformatory for Women and was informed that adequate services for pregnant women were provided by the institution. These services consisted of a medical staff at the prison throughout the day, physicians on call on a 24-hour basis, delivery services at the Community Hospital, and delivery performed by defendant’s choice of physician. Griffith stated on cross-examination that if defendant were sentenced to a period of probation and she made a good-faith effort to comply with the conditions of her probation, he would assist her in any way possible.

Defendant declined the opportunity to make a statement on her own behalf. Defense counsel informed the court that defendant believed that she could add nothing further to the statement she submitted to the trial judge and probation officer.

After argument by the parties, the trial judge set forth the factors which he considered relevant to defendant’s sentence. He noted at the outset that he was guided by the preamble to the Illinois Controlled Substances Act. The portions of the provision relied upon by the trial judge provide:

“Legislative intent. It is the intent of the General Assembly, recognizing the rising incidences in the abuse of drugs and other dangerous substances and its resultant damage to the peace, health, and welfare of the citizens of Illinois, to provide a system of control over the distribution and use of controlled substances which will more effectively: *** (3) penalize most heavily the illicit traffickers or profiteers of controlled substances, who propagate and perpetuate the abuse of such substances with reckless disregard for its consumptive consequences upon every element of society; *** . ***
It is not the intent of the General Assembly to treat the unlawful user or occasional petty distributor of controlled substances with the same severity as the large-scale, unlawful purveyors and traffickers of controlled substances. To this end, guidelines have been provided, along with a wide latitute in sentencing discretion, to enable the sentencing court to order penalties in each case which are appropriate for the purposes of this Act.” (Ill. Rev. Stat. 1977; ch. 5614, par. 1100.)

The court emphasized that defendant had been convicted of three separately motivated felonies, that each delivery was made for compensation, that defendant had on each occasion represented that she could obtain cocaine from a source in Chicago, that the deliveries were made to a person unknown to defendant, and that based upon the above factors the trial judge was of the opinion that defendant was “no stranger to this type of activity.” The court again noted the intent of the legislature to punish more severely those persons “that deal in the sales” of controlled substances. The trial judge then stated, based upon the evidence introduced at trial and in the sentencing hearing, that he believed that imprisonment was necessary for the protection of the public and that probation would deprecate the seriousness of the offense and be inconsistent with the ends of justice. The trial judge also noted that the jury did not believe defendant’s alibi defense, and stated further: “[T]he jury drew the only conclusion it had, that she was dealing a false hand.” Having reached the determination that a sentence of probation was inappropriate, the trial judge noted defendant’s medical condition, the hardship to defendant’s son, and defendant’s status as a youthful offender as factors in mitigation of the term of imprisonment to be imposed. The court then sentenced defendant to a term of two years’ imprisonment for each offense, the minimum sentence of imprisonment provided by law, these terms to be served concurrently.

The State argues in this court that the judgment of the appellate court, ordering that defendant be resentenced, is in error. The State contends that the sentence imposed by the trial court complied with the relevant provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001 — 1—1 et seq.) and effectuated the legislative purpose of the Illinois Controlled Substances Act set forth above. Defendant, seeking to sustain the judgment of the appellate court, argues that the presentence report failed to comply with the requirements of section 5 — 3—1 of the Unified Code of Corrections in that it failed to include information related to special resources available in the community to assist defendant’s rehabilitation, and she further argues that the trial judge disregarded appropriate information contained in the presentence report related to defendant’s educational and employment history. In addition, defendant contends that the trial judge’s reliance upon her representations to an agent of the Illinois Bureau of Investigation that she could supply cocaine, and his statements related to her perceived perjury, were improper factors for consideration and that the cause should therefore be remanded for resentencing without consideration of these factors.

Section 5 — 3—1 of the Code provides that, in the absence of an agreement to a specific sentence, a defendant shall not be sentenced for a felony before a written presentence report is presented to and considered by the court (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1). The Code prescribes that the presentence report shall set forth:

“(1) the defendant’s history of delinquency or criminality, physical and mental history and condition, family situation and background, economic status, education, occupation and personal habits;
(2) information about special resources within the community which might be available to assist the defendant’s rehabilitation, including treatment centers, residential facilities, vocational training services, correctional manpower programs, employment opportunities, special educational programs, alcohol and drug abuse programming, psychiatric and marriage counseling, and other programs and facilities which could aid the defendant’s successful reintegration into society;
(3) the effect the offense committed has had upon the victim or victims thereof, and any compensatory benefit that various sentencing alternatives would confer on such victim or victims;
(4) information concerning the defendant’s status since arrest, including his record if released on his own recognizance, or the defendant’s achievement record if released on a conditional pre-trial supervision program;
(5) when appropriate, a plan, based upon the personal, economic and social adjustment needs of the defendant, utilizing public and private community resources as an alternative to institutional sentencing; and
(6) any other matters that the investigatory officer deems relevant or the court directs to be included.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005-3-2.)

Section 5 — 4—1 of the Code requires the sentencing authority to consider the presentence report in the sentencing hearing. Ill. Rev. Stat. 1979, ch. 38, par. 1005-4-1.

The appellate court, relying upon the aforementioned provisions, held that defendant’s presentence report of investigation was insufficient in that it did not mention sentencing alternatives or programs within the community to assist in defendant’s rehabilitation, and the court further stated that this error had not been waived by defendant’s failure to raise this deficiency in the sentencing hearing. In addition, the appellate court noted that the trial judge did not discuss defendant’s education and employment history in passing on the propriety of probation.

We agree with the appellate court that defendant’s presentence report did not fully comply with the requirements of section 5 — 3—2(a)(2) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—2(a)(2)) as it failed to comment upon resources within the community which may have been available to assist defendant’s rehabilitation. We do not agree, however, that this error has been preserved for review. The record reveals that defense counsel acknowledged inspection of the presentence report at least three days prior to the sentencing hearing as prescribed by section 5 — 3—4 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—4) and that defense counsel moved to correct various errors contained in the report at the sentencing hearing. It is the duty of the probation officer to prepare a presentence report consistent with the directives of the statute. It is the duty of the parties, however, to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the presentence report. The requirement that the trial judge consider the presentence report was complied with in the present case; any objections to the sufficiency of the report must first be presented to the trial court.

Defendant’s contention that the trial court ignored defendant’s educational background and employment history in passing upon the propriety of a sentence of probation is also not supported by the record. Initially, we agree with the appellate court that a fair reading of the record is necessary to determine whether the trial judge complied with the spirit as well as the letter of the requirement that he consider the presentence report. In conducting this review of the record, we find that defendant, defense counsel, and Reverend Ross all commented upon defendant’s employment history, and defendant expressed her desire to continue her education, in addition to the information provided in the presentence report. The requirement that the trial judge set forth his reasons in the record for the particular sentence imposed does not obligate the judge to recite, and assign a value to, each fact presented in evidence at the sentencing hearing. We find that in the present case the trial judge considered the presentence report as required by section 5 — 4—1 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1), that the views of defendant’s witnesses were fully presented, and that the trial judge incorporated the information provided in his sentencing decision.

Defendant next contends that the trial court’s consideration of her representations that she could supply cocaine was improper, as there was no indication that this purported ability was an actual ability. Defendant argues that the record contains no evidence of defendant actually selling cocaine to Agent Murray, the individual to whom she made this representation, or to any other individual. Defendant suggests that Agent Murray’s repeated efforts to purchase cocaine from her, and his failure to do so, support the inference that she was unable to deliver this substance and that her statements should be considered unreliable.

The appellate court noted that although the logical inference is that one is able to do what one claims to be able to do, the record does not substantiate that conclusion in the present case. The appellate court concluded that the statement was unreliable. The appellate court further noted that under the current statutory policy in favor of probation as a first alternative, sentencing courts are under a duty to scrutinize information presented at the sentencing hearing to determine if it can be utilized to justify probation, not deny it.

In determining the appropriate sentence to impose, the trial court is not bound by a rigid adherence to the rules of evidence but may search anywhere, within reasonable bounds, for facts which tend to aggravate or mitigate the offense. (People v. Adkins (1968), 41 Ill. 2d 297, 301). “Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. *** A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” (Williams v. New York (1948), 337 U.S. 241, 246-47, 93 L. Ed. 1337, 1342, 69 S. Ct. 1079, 1083.) This inquiry is limited only by the prerequisite that the information considered be accurate and reliable. People v. Crews (1967), 38 Ill. 2d 331, 337.

Our review of the record reveals that on three separate occasions, in the course of making a sale of a controlled substance to an agent of the Illinois Bureau of Investigation, defendant represented that she could deliver another controlled substance, cocaine, once she had made contact with her supplier. Defendant had demonstrated her ability to deliver a controlled substance, and the agent testified that defendant showed him a very large quantity of phencyclidine, an estimated two pounds, informing him that she could supply all that he desired. We are unwilling to hold that defendant’s statements, in the nature of admissions, are unreliable given the surrounding circumstances in which they were made.

Defendant’s last contention is that the trial judge improperly considered defendant’s perceived peq'ury at trial. Defendant concedes that a trial judge’s consideration of perjury in the sentencing hearing does not violate Federal or State constitutional provisions. (See United States v. Grayson (1978), 438 U.S. 41, 57 L. Ed. 2d 582, 98 S. Gt. 2610; People v. Jones (1972), 52 Ill. 2d 247.) Defendant asserts, however, that Illinois law precludes the assessment of this factor in the sentencing hearing. We do not agree.

Defendant presented an alibi defense at trial. She testified that for a two-month period, the period which spanned the sales of these drugs, she was at all times in Chicago. Defendant’s neighbor, a Centraba police officer, testified that at various times during this period he saw her in her home in Centraba. Agent Murray identified defendant as the individual who sold him the controlled substance, in Centraba. In addition, on impeachment, the State introduced an employment appbcation signed by defendant. This appbcation was submitted to a Centraba employer and dated during the period that defendant contended she was in Chicago. Defendant was unable to offer an explanation as to how the employer received this appbcation.

As we stated in People v. Jones: “Realistically, it is impossible for a judge, in determining what sentence should be imposed, to erase from his mind the testimony of the defendant. The impact of that testimony upon the sentencing judge can hardly be said to be irrelevant to an appraisal of the defendant’s character and his prospects for rehabihtation.” (People v. Jones (1972), 52 Ill. 2d 247, 249-50.) We do not find in the present case that the trial judge’s perception of perjury was unwarranted, nor that he improperly appbed this factor to his sentencing decision.

In summary, we find no reason to disturb the sentence imposed on defendant. The record reveals that the trial judge carefully considered the evidence presented and balanced the factors presented in aggravation and mitigation of the offense. The record supports his conclusion that defendant was not an “occasional petty distributor of controlled substances” (Ill. Rev. Stat. 1977, ch. 56V2, par. 1100), and the imposition of the minimum sentence of imprisonment demonstrates his sensitivity to the mitigating factors present in the case.

For the reasons stated, 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 RYAN

text:
    (No. 52923.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. STERLYN W. WOODS, Appellant.

      Opinion filed. September 15, 1980.

      James J. Doherty, Public Defender, and James H. Reddy, Assistant Public Defender, 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 Marcia B. Orr, Iris E. Sholder and Armand L. Andry, Assistant State’s Attorneys, of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Sterlyn Woods, defendant, was charged with the murder of Tarran Jones in the circuit court of Cook County. After a bench trial, he was found guilty of involuntary manslaughter. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 3.) He was sentenced to four years in the penitentiary with an additional one-year term of mandatory supervised release. The appellate court affirmed the decision of the circuit court. (80 Ill. App. 3d 56.) We granted leave to appeal. The only issue raised on appeal is whether the State has proved beyond a reasonable doubt that the defendant’s actions did not constitute self-defense under the facts of the case.

Defendant was charged with the September 25, 1978, fatal beating of Tarran Jones. At the time of the occurrence the defendant was 18 years old, 6 feet 3 inches tall, weighed 200 pounds, was employed as a meat cutter, and had been a football player in high school. The evidence discloses that at approximately 9 p.m. on the evening of the incident, the defendant was at Miss Quincy’s Lounge, where occasionally he was called upon to maintain order and sometimes to assist in spinning records as a discjockey. He was not compensated for these services by the owner of the tavern.

On that evening, either three or four young men entered the lounge together. They were loitering and did not buy any drinks. A barmaid asked the defendant to tell the men that if they did not purchase drinks, they would have to leave. The defendant relayed the message, which seemed to anger at least one of the men. After an exchange of words and shoving, a fight ensued between one of the men and the defendant. During the fight the companions of the original combatant joined the fight and the defendant was struck over the head with a beer bottle and a flower pot. He suffered cuts on his head which caused bleeding. The defendant hit the combatant five or six times in the face before being held back by someone in the lounge. The combatant ran from the lounge and the defendant gave chase. The companions left the bar after the defendant. Shortly thereafter the people who worked at the lounge got everyone out of the lounge and closed the door. The police were summoned, but by the time they arrived, “everything was over so they left.”

The defendant did not catch the combatant so he returned to the lounge. While returning the defendant encountered Tarran Jones walking toward him in front of the lounge. He did not know Jones, but he testified at trial that he thought Jones might have been one of the attackers from the bar. (The medical examiner’s testimony was that Jones was 6 feet and weighed 130 pounds.) The defendant testified that, as he and Jones approached each other, the defendant’s arm was raised and his fist was clenched as he asked Jones, “you one of them too, ain’t you?” Jones did not answer the question verbally, but punched defendant in the face. The defendant then struck Jones on the left side of his head, knocking him into an iron gate. His head did not hit the gate. Jones bounced off the gate. Although he was not attempting to throw another punch, the defendant struck him twice more in the face, knocking him back into the gate. Jones began to slide down the gate, covering his face. Defendant hit him a fourth and possibly a fifth time as Jones was falling. Defendant stated he would have hit Jones again, but someone pulled him away.

The police were called again and the victim was taken to the hospital, where he died from his head wounds on September 26. The forensic pathologist testified that Jones died of a brain hemorrhage caused by traumatic injuries or blunt-force injuries. Defendant turned himself in on October 2, 1978.

At the trial, the defendant testified that he believed Jones was one of the men he fought with in the lounge, although he was unsure, and that at the time of the encounter with Jones he believed he was in danger of being hurt but not killed. He also admitted on cross-examination that Jones was not armed and the blow rendered by Jones did not hurt him. Further, Jones swung at him only once. Defendant admitted, when questioned about whether he thought Jones was one of his attackers when he hit him, “you know how revenge builds up inside me.”

The trial court found defendant had not acted in self-defense but was guilty of manslaughter. He was sentenced to imprisonment for four years, plus one year mandatory supervised release. The appellate court affirmed the ruling of the trial court. We affirm the judgment of the appellate court.

The defendant contends that his actions constitute the affirmative defense of self-defense and that he was not proved guilty beyond a reasonable doubt by the State. On the subject of self-defense, the Criminal Code of 1961 provides in pertinent part:

“[A person] is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another ***.” (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 1.)

Self-defense is an affirmative defense (Ill. Rev. Stat. 1977, ch. 38, par. 7 — 14), and once it is raised by presenting some evidence tending to prove the defense, the State then has the burden of proving the defendant’s guilt beyond a reasonable doubt as to that issue, together with all the other elements of the offense. Ill. Rev. Stat. 1977, ch. 38, par. 3-2; People v. Williams (1974), 57 Ill. 2d 239, 242, cert, denied (1974), 419 U.S. 1026, 42 L. Ed. 2d 302, 95 S. Ct. 506; People v. Warren (1965), 33 Ill. 2d 168, 173.

Whether a killing is justified under the law of self-defense depends upon the surrounding facts and circumstances and is to be determined by the trier of fact. {People v. Jordan (1960), 18 Ill. 2d 489, 492.) When a cause is tried without a jury, the law commits to the trial judge the determination of the credibility of the witnesses and the weight to be given their testimony, and where the evidence is merely conflicting, this court will not substitute its judgment for that of the trier of fact who heard the evidence. People v. Thornton (1962), 26 Ill. 2d 218, 222; People v. Dillon (1962), 24 Ill. 2d 122, 127.

We hold that the evidence in the record was sufficient to permit the trial court to determine that the defendant’s action did not constitute self-defense because the defendant did not reasonably believe the force he executed was necessary to prevent imminent death or great bodily harm to himself. Although the defendant testified that he was afraid of being hurt, he stated that the only blow he received from the decedent did not hurt him. The defendant estimated that the victim was 5 feet 7 inches, sort of short, and of average build. The record discloses the victim was 6 feet and 130 pounds. The defendant was 6 feet 3 inches, 200 pounds and, as the record discloses, very capable of handling himself in a fight.

Second, the defendant took a very aggressive, intimidating role in confronting Jones. Although he was obviously agitated from the prior incident in the bar, this did not sanction his making threatening advances to people he met on the street. The defendant admitted he approached Jones with his arm raised and his fist clenched. He stated he was still angry and prepared to strike when he asked Jones if he was “one of them.” This occurred in the early morning hours and noting the difference in size of the defendant and the deceased, the trial court could reasonably conclude that the deceased was the one acting in self-defense even though he delivered the first blow. It is not necessary that blood first be drawn before the right of self-defense arises. [People v. Speed (1972), 52 Ill. 2d 141, 146, cert, denied (1972), 409 U.S. 983, 34 L. Ed. 2d 247, 93 S. Ct. 3220.) The circumstances and events described by defendant failed to buttress his defense of self-defense.

Defendant’s testimony supports the conclusion that he beat Jones because he believed Jones “was one of them,” not because he reasonably believed the force he used was necessary to prevent death or great bodily harm to himself. The right of self-defense does not justify an act of retaliation or revenge. [People v. Thornton (1962), 26 Ill. 2d. 218, 222; People v. Dillon (1962), 24 Ill. 2d 122, 125.) The self-defense concept is to protect person, not pride. The defendant’s actions after the first blows were struck show a desire on his part to seek revenge rather than acting in self-defense. The punch thrown by Jones hit the defendant in the face; however, it admittedly did not hurt. The defendant’s first blow knocked Jones back into a gate with such force that Jones bounced off the gate. He did not attempt to throw another punch at defendant, but the defendant struck him two more blows to the head, knocking him back into the gate. Then, as Jones was falling down, defendant continued to deliver blows to Jones’ head. These are not the actions of a person defending himself but those of one on the attack seeking revenge.

We believe the totality of the evidence presented provided no basis upon which the court could conclude that defendant reasonably believed the use of such overwhelming force was necessary to prevent great bodily harm to himself. For the above-stated reasons, we affirm defendant’s conviction and sentence.

Judgment affirmed.


text:
    (No. 52782.
    MAXINE RICE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Harris Corporation, Broadcast Products Division, Appellee).

      Opinion filed September 15, 1980.

      James N. Keefe, of Keefe, Snowden, Gorman & Brennan, of Quincy, for appellant.
    Henry D. Noetzel & Associates, Ltd., of Peoria (John E. Mitchell, of counsel), for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The employee, Maxine Rice, appeals from the judgment of the circuit court of Adams County confirming the Industrial Commission’s affirmance of the arbitrator’s finding that she did not suffer an accidental injury arising out of and in the course of her employment. The only issue on appeal is whether the Industrial Commission’s decision is against the manifest weight of the evidence. Review is had pursuant to our Rule 302(a) (73 Ill. 2d R. 302(a)).

Maxine Rice had three serious back operations prior to the November 29, 1977, incident. The injuries that prompted these operations apparently were not work related since the record indicates they were covered by group insurance. Following her third back operation, the employee was discharged from her neurosurgeon’s care in May or June of 1977 and was recalled by her former employer, Harris Corporation, Broadcast Products Division, on July 13, 1977. On November 29, 1977, upon returning to her desk, the employee started to sit in her padded secretarial chair and was in a semistooped or squatting position when she noticed the chair was not beneath her. She reached back and pulled the chair toward her and she sat down hard on the chair’s front edge. The employee contends she immediately experienced a sharp pain shoot up her lower back. She performed some pain-relieving maneuvers or exercises before going to see the nurse.

At the Industrial Commission hearing, medical evidence was introduced stating that it was impossible to tell how much of the employee’s current complaints were organically versus functionally based. In a report of the Mayo Clinic dated March 2, 1978, it was suggested that a pain clinic evaluation might be advisable but ultimate improvement could only be anticipated after settlement of litigation (the present case). The employee’s own medical witness testified that the surgery she experienced had a debilitating effect. A person who had undergone repeated back operations, as the employee had, could have an aggravation of her condition spontaneously generated, with or without trauma.

The arbitrator and Industrial Commission found that the employee failed to prove an accidental injury arising out of and in the course of employment for which compensation is payable. The circuit court confirmed.

For an employee to recover under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) it is not enough that the employee be at his place of employment when the injury is sustained. There must be a showing that the injury was due to some cause connected with or incidental to the employment, rather than to a cause completely unrelated to the employment, and the burden of proof is on the employee. (Board of Trustees v. Industrial Com. (1969), 44 Ill. 2d 207, 214.) It is the function of the Industrial Commission to decide questions of fact and causation. (O’Dette v. Industrial Com. (1980), 79 Ill. 2d 249; Stewart Warner, Datafax Corp. v. Industrial Com. (1979), 76 Ill. 2d 464.) 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.) As we have stated on numerous occasions, this court will not set aside a finding of the Industrial Commission unless the finding is against the manifest weight of the evidence. Gladstone v. Industrial Com. (1980), 79 Ill. 2d 236.

Upon reviewing the evidence, we cannot say that the Industrial Commission’s finding is contrary to the manifest weight of the evidence. Therefore, we affirm the judgment of the circuit court of Adams County.

Judgment affirmed.


text:
    (No. 52611.
    GERALDINE DIAL, Appellee, v. THE CITY OF O'FALLON, Appellant.

      Opinion filed, September 29, 1980.

      Koebel & Merkel, of O’Fallon, for appellant.
    Jeanne Sathre and Jack Carey, of Cohn, Carr, Korein, Kunin, Schlichter & Brennan, of East St. Louis, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County, the defendant, the city of O’Fallon, was found liable to the plaintiff, Geraldine Dial, for causing sewer water to back up into the plaintiff’s house. Mrs. Dial was awarded $23,000 in damages. The appellate court affirmed the judgment of the trial court. (75 Ill. App. 3d 782.) We granted leave to appeal.

The defendant raises two issues on appeal. The primary issue is whether the city’s conduct was sufficient to constitute a trespass to land. The second issue is whether the trial court erred in denying the defendant the right to present certain evidence concerning the reason why the city had caused the sewer water to back up onto plaintiff’s property.

The pertinent facts of the case are not disputed. The city of O’Fallon installed a sewer system in about 1926. In 1961, due to backups into homes serviced by the system, the city built an overflow outlet on East Madison Street. The overflow was to relieve pressure in the sewer system during periods of heavy rainfall; it proved successful in preventing backups into nearby homes. However, when water escaped through the overflow, raw sewage was also discharged into an open ditch that flowed into a neighboring pond. In December 1974, the city of O’Fallon closed the overflow. During trial, the trial court refused to allow the city to present evidence that it closed the overflow because it violated State environmental regulations and as part of a settlement of a nuisance suit filed against the city for dumping raw sewage into the pond.

On January 10, 1975, and on subsequent dates, sewage backed up into the plaintiff’s house following heavy rainfall. The January 10 backup was the worst, causing water to accumulate in the plaintiff’s finished basement to a height of 2514 inches. The lower level of the plaintiff’s modem, ranch-style home contained a family room with fireplace and built-in bookshelves, bedroom, closet, bath and utility room with washer, dryer, furnace and water heater. The walls were watermarked, and the tile floor was damaged, as were the furnishings, appliances and many irreplaceable family items such as family photographs and slides. The lower level of the house was virtually unusable for a year, and the plaintiff had to expend considerable time, effort and money in repairing the floor, repainting the walls, and replacing and removing damaged personalty.

During the trial, the city engineer testified that the city knew the blocking of the overflow would cause some backup, although they were not aware that it would be as severe as it was. From January until April or May 1975, when the city reopened the overflow, the city attempted to alleviate the pressure in the sewer system by pumping the water from the sewers into open ditches during periods of heavy rain. The defendant used either large or small pumps, depending upon the amount of water in the system. The backups into Mrs. Dial’s home ended after the overflow was reopened in April or May 1975. During trial, the plaintiff valued the personal property destroyed by the inundations at $3,500. In addition, she called as an expert witness a real estate appraiser who testified that the value of her home had depreciated 30% due to the water damage.

Plaintiff was one of several homeowners who had filed a complaint against the city; however, plaintiff’s case was severed from the others for trial. Her case, as were the others, was alleged in three counts, each seeking recovery for the damages caused by the backing up of the water into her home on separate theories: negligence, trespass to land, and strict liability. The strict liability count was stricken. Although no reference is made to this fact in the briefs, it appears from a colloquy by the court and counsel prior to the trial of plaintiff’s case that the city of O’Fallon had liability insurance and that the insurance company had settled the negligence count and that a covenant not to sue had been executed. The colloquy also discloses that the insurance company was not defending the trespass to land count because there had been a declaratory judgment that the trespass to land action was not covered by the insurance policy but that the negligence action was. Since we do not have the file in the action in which the declaratory judgment was entered, and since we have not examined the covenant not to sue, we can express no opinion as to the propriety of the settlement of the negligence count and proceeding to trial on the count based on the theory of trespass to land. From all of the allegations, however, it appears that the separate counts were simply stating different theories of recovery for one injury.

On appeal, the city contends that although negligent in maintaining the sewer system, its conduct does not give rise to liability on the theory of trespass to land.

Historically, the requirements for the common law action of trespass were that the invasion be a direct result of the defendant’s act and interfere with plaintiff’s interest in the exclusive possession of his land. Trespass was strictly distinguished from the action of case and, for the most part, these two forms of action were mutually exclusive. Case was proper where the injury was consequential rather than direct. Most harms arising out of negligence could be more conveniently remedied in case since it was not necessary to allege and prove that the harm was the direct and immediate result. (1 F. Harper & F. James, Torts secs. 1.2 to 1.4, at 5-16 (1956); W. Prosser, Torts sec. 13, at 63-68 (4th ed. 1971).) In 1933 this State, as other States had done, adopted revised procedures of pleading in the Civil Practice Act, section 31 of which, prior to its amendment in 1976, provided:

“Neither the names heretofore used to distinguish the different ordinary actions at law, nor any formal requisites heretofore appertaining to the manner of pleading in those actions, respectively, are necessary or appropriate ***. This section does not affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity.” (Ill. Rev. Stat. 1975, ch. 110, par. 31.)

Before that, section 36 of the Practice Act of 1907 had abolished distinctions between actions of trespass and trespass on the case. (Ill. Ann. Stat., ch. 110, par. 31, Historical and Practice Notes (Smith-Hurd 1968).) Following these statutory enactments, it became important to distinguish between an intentional trespass to land and those which were the result of negligent conduct, only for the purpose of determining whether it was necessary to prove actual damages. 1 F. Harper & F. James, Torts sec. 1.4, at 12 (1956).

The conduct which today forms the basis of liability for the invasion of the interest in the exclusive possession of land may be of three general types: (1) conduct intended to cause an intrusion on the plaintiff’s premises; (2) negligent conduct that causes an intrusion; and (3) conduct that is ultrahazardous and causes an intrusion, so that liability is said to be strict or absolute. The second type of invasion listed above is now governed by the general principles of negligence, and the third is thought of as included in the principles governing extrahazardous conduct, leaving only the first type of invasion wherein recovery may be sought purely on the basis of the tort of trespass. 1 F. Harper & F. James, Torts sec. 1.4, at 11-12 (1956).

We may summarize the Restatement (Second) of Torts on this subject as follows: (1) One is subject to liability for an intentional intrusion on land irrespective of whether he causes harm to a legally protected interest. (Restatement (Second) of Torts sec. 158, at 277 (1965).) (2) One is liable for negligent or reckless intrusion on land if he thereby causes harm to a legally protected interest. (Restatement (Second) of Torts sec. 165, at 300 (1965).) (3) And one is riot liable for an unintentional nonnegligent intrusion on land even though the entry causes harm to a legally protected interest. (Restatement (Second) of Torts sec. 166, at 304 (1965).) Under section 158 of the Restatement (intentional intrusion), or section 165 (negligent or reckless intrusion), a person is liable not only for his own entry but also if he causes a thing or third person to enter the land of another.

Although the allegations of the complaint refer only to a trespass without specifying whether the intrusion was intentional or negligent, it is apparent that the issue to be tried in our case was that of an intentional trespass to land and not a negligent intrusion. The colloquy between court and counsel before the trial started, which we discussed above, clearly demonstrates this. Counsel for the defendant stated he viewed the trespass alleged as an intentional tort. He moved to strike part of paragraph 6 of the trespass count because that allegation sounded in negligence. Since the insurance company had settled the negligence count and the negligence “portion of the case” had been disposed of, the court struck that part of paragraph 6 objected to. According to the Restatement, a person may be liable for an intentional intrusion on land for directly casting an object upon the property of another or for indirectly causing the intrusion if an act is done with knowledge that it will, to a substantial certainty, result in the entry of the foreign matter. Restatement (Second) of Torts sec. 158, comment i, at 278-79 (1965).

It is clear that the backup in the sewers resulted from the intentional closing of the overflow. The city engineer testified that, when the overflow was closed, it was assumed there was going to be some backup but they were not aware it was going to be as severe as it was. He also testified that the overflow originally had been installed as a result of some extremely heavy rainfall in 1961. An employee of the defendant’s sewer department testified that he knew that when the overflow was closed there would be some backup into some homes “if we got a heavy enough rain.” In this case the defendant admits that it was negligent in maintaining and servicing the sewer system and argues that it is liable under a theory of negligence rather than trespass to land.

The only definition of trespass given to the jury read:

“Trespass need not be in person but may be by casting something on the land or projecting anything into, over, or upon the same.
The projection of any substance upon the lands of another without right is a trespass.”

Thus the jury was not instructed as to the nature of the conduct required of the defendant to find it responsible for intentionally causing the substance to enter the land of another. As noted above, comment i to section 158 of the Restatement (Second) of Torts states that the act must be done “with knowledge that it will to a substantial certainty result in the entry of the foreign matter.” The Restatement continues in that comment:

“Thus one who so piles sand close to his boundary that by force of gravity alone it slides down onto his neighbor’s land, or who so builds an embankment that during ordinary rainfalls the dirt from it is washed upon adjacent lands, becomes a trespasser on the other’s land.”

Illustration 5 of the comment states:

“A erects a dam across a stream, thereby intentionally causing the water to back up and flood the land of B, an upper riparian proprietor. A is a trespasser.”

The illustrations in the Restatement referred to above imply that a high degree of certainty that an intrusion of another’s property will result from the act of the defendant is required to establish liability for intentional trespass: one must pile the sand on his land in such a manner that the force of gravity alone causes it to slide onto adjoining land; or one must build an embankment on his property in such a way that ordinary rainfalls wash it upon another’s land; or one must erect a dam across a stream intentionally causing water to back up on another’s property. In each of these examples there is knowledge of a high degree of certainty that the intrusion on another’s land will follow the act. This same knowledge of a high degree of certainty that the intrusion will follow the act has been required in other jurisdictions which have considered intentional intrusions of land by causing the entry of an object. In Buchanan v. Cardozo (1965), 24 App. Div. 2d 620, 262 N.Y.S.2d 247, it was held that the proof failed to show a voluntary affirmative act which directly caused the collapse of the wall even though the owner had knowledge of a previous partial collapse. In Langford v. Kraft (Tex. Civ. App. 1973), 498 S.W.2d 42, it was held that intentionally designing a storm-sewer facility to collect water from an entire area and discharge it upon an adjoining owner’s property, where otherwise a part of the water would not have reached, was an intentional intrusion. In Rushing v. Hooper-McDonald, Inc. (1974), 293 Ala. 56, 300 So. 2d 94, it was held that the dumping of asphalt on land in such a way that it ran downhill onto adjoining land and entered a stream and polluted a pond constituted an intentional intrusion. In Rushing the court distinguished City of Fairhope v. Raddcliffe (1972), 48 Ala. App. 224, 263 So. 2d 682, which held that damages against the city for causing or allowing its sewer line to overflow and flood the plaintiff’s house were recoverable in an action of trespass on the case and not trespass. The court, in Rushing, stated:

“Raddcliffe is distinguishable from the case at bar in that here there was no obstruction that caused the flow of asphalt onto the plaintiff’s possessed realty; rather the flow was direct.” 293 Ala. 56, 60,300 So. 2d 94,97.

As indicated above one can be hable under present-day trespass for causing a thing or a third person to enter the land of another either through a negligent act or an intentional act. Also, as noted above, it appeared from the colloquy between court and counsel before the trial started that it was the intention of the parties to consider the allegations of count II as an intentional trespass. However, the instructions given to the jury did not limit the jury to only the consideration of the “substantial certainty” requirement of an intentional trespass. Under the instructions given to the jury defining or explaining trespass, and under the issues instruction, the jury could find from the evidence that the plaintiff was entitled to recover from the city for a trespass. We therefore need not consider whether the evidence is sufficient under the decisions discussed herein and under the Restatement to hold the city responsible for an intentional trespass to plaintiff’s land or whether the evidence establishes no more than a negligent intrusion. No question has been raised as to whether the jury was properly instructed as to the tort of intentional trespass. We must therefore affirm the judgment in favor of the plaintiff.

The defendant’s insurance carrier apparently settled the cause of action alleged in the negligence count and received a covenant not to sue. We do not know who executed the covenant or to whom it ran. It would be logical to assume that the covenant was executed by Mrs. Dial and that it ran to the city of O’Fallon, since those parties were the plaintiff and defendant in the negligence count. It is also logical to assume that the settlement covered the same damage to property for which recovery was sought under the trespass action. At least the allegations in the two counts sought recovery for the same damage to property. The defendant does not here question the propriety of plaintiff’s recovery under both counts. In the trial court, a motion to dismiss the trespass count was filed by the defendant alleging that the allegations duplicated the allegations of the negligence count. That motion was not ruled on by the trial court, and the question was not again raised by the defendant. None of these issues are before us, and we are not in a position to rule on them.

The defendant also has not requested that the amount received by the plaintiff for the settlement with the insurance carrier in exchange for the covenant not to sue be set off against the damages awarded at trial of the trespass count. However, the courts in Illinois have long recognized the legal principle that a plaintiff shall have only one satisfaction for an injury (Meneghin v. Thunander (1962), 36 Ill. App. 2d 452; DuPree v. Terry (1971), 1 Ill. App. 3d 169; Kurth v. Amee, Inc. (1972), 3 Ill. App. 3d 506), irrespective of the availability of multiple theories that recovery for the injury can be sought under. In other words, if a party is injured by another he can bring the actions under several theories, i.e., negligence, product liability, intentional tort, etc.; however, he will only be eligible for one recovery for his injury when seeking compensatory tort damages. The purpose of compensatory tort damages is to compensate for the injury suffered, not to punish defendants or bestow a windfall upon plaintiffs. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 363.) Thus, damages that are awarded to a plaintiff to compensate for the injury suffered may properly be reduced by a court by the amount paid for a covenant not to sue. (See New York, Chicago & St. Louis R.R. Co. v. American Transit Lines, Inc. (1951), 408 Ill. 336, 342.) Therefore, on remand the trial court should determine the amount paid by the insurance carrier for the settlement of the negligence count, to whom it was paid, and the damage to property for which it was given. The court must then determine whether defendant is entitled to a setoff against the judgment entered on the trespass count.

The city also argues that it should have been permitted to introduce evidence that it closed the overflow as part of a negotiated settlement of another lawsuit, and that its conduct in dumping raw sewage into an open ditch beside a public road was a violation of State environmental protection laws. This testimony did not serve to show any legal authority on the part of the city to discharge sewage upon plaintiff’s property or any other material fact in issue. Testimony is irrelevant and properly excluded if it has no legitimate bearing upon, or relation to, any fact or issue in the case. [People v. Kelly (1942), 380 Ill. 589, 595.) The trial court did not abuse its discretion in excluding this testimony.

The judgment of the appellate court affirming the judgment of the circuit court of St. Clair County is affirmed. The cause is remanded to the circuit court for further proceedings in compliance with this opinion.

Affirmed and remanded, with directions.