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    People of the State of Illinois, Plaintiff-Appellee, v. Andrew Harper and John Holmes, Jr., Defendants-Appellants.
    Gen. Nos. 51,490, 51,491.
    First District, Fourth Division.
    July 31, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    No brief for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Murder of one Atallah Sadallah. Ill Rev Stats 1963, c 38, § 9-1.

JUDGMENT

After a jury trial, both defendants were convicted as charged and a verdict of death was returned. However, pursuant to Ill Rev Stats 1965, c 38, §1-7 (c)(1), the court sentenced both defendants to terms of 100 to 150 years.

DEFENDANTS’ CONTENTIONS ON APPEAL

1. The court erred in denying defendants’ motion to suppress their confessions.

2. Defendants were not proven guilty beyond a reasonable doubt. .

3. The court erred in denying defendants’ motion for severance.

4. The court erred in denying defendants’ motion to sequester the jury.

5. Defendants were denied due process of law by the method of jury selection employed by the court.

EVIDENCE AT THE HEARING ON DEFENDANTS’ MOTION TO SUPPRESS THEIR CONFESSIONS

Officer William Lenz testified for the State that on January 10, 1963, he was at Area 4, Homicide, with several other detectives and officers. He noticed three officers talking to the two defendants about 3:15 p. m. All were seated at a table in the squad room, and neither of the defendants was handcuffed. The witness talked briefly to them at 4:00 p. m. with Officers Walker and Anderson present. Defendants were then placed in separate rooms adjoining the squad room.

He stated that he read some reports, and at 6:00 p. m. again talked with both defendants. He talked first to Holmes and questioned him for approximately 25 minutes concerning the killings of Jake Allen and Atallah Sadallah (the victim in this case). Holmes was handcuffed at this time. Then he talked to Harper, who was not handcuffed, about the same incidents. Both defendants related certain facts about the killing of Sadallah.

At 8:00 p. m., the witness had a brief visit with Holmes, asked him what he wanted to eat, and then sent for it. He next saw Holmes at 8:30 p. m., when Mr. Getty, the Assistant State’s Attorney, arrived at the station. At 9:00 p. m., both defendants were involved in a lineup. He was also present at approximately 11:30 when Holmes gave a statement to Mr. Getty, which was recorded by a court reporter. This same routine occurred in a different room with defendant Harper at approximately 1:00 a. m. on January 11. He was with defendants from the time the confessions were concluded until the squadrol came.

He stated that defendant Holmes’ physical appearance remained the same from the time he first saw him until he last saw him, which was sometime after 1:00 a. m. He did see Holmes spitting up blood around 8:30 p. m., and asked about his condition. Holmes told him that he had a nervous stomach, so they obtained a quart of milk for him.

Witness never struck either defendant. He was in the squad room during most of the day and had occasion to observe who entered and left the room where defendants were being held. He testified that no one threatened defendants or beat or struck them. No one promised them leniency to induce a confession.

Detective Robert Walker testified for the State that he and Detectives Mason and Invergo arrested defendants on January 10, 1963, at approximately 2:45 p. m. at a welfare station on West Madison. Bach man had a loaded gun and Holmes said they were riding in a stolen car. Defendants were brought to Maxwell Street police station where questioning began concerning five or six different robberies in Area 4. There was no conversation about the Sadallah matter. At 4:15 p. m., defendants were turned over to the homicide section, including Detectives Lenz and Anderson, for further questioning. After this, he saw defendants in handcuffs at various times.

He did not advise either man of a right to remain silent nor did he permit either man to make a phone call. Neither he nor anyone else struck defendants or made any threats or promises to obtain confessions, and defendants made no complaints about the way they were being treated. He did see defendant Holmes spitting up blood during an interrogation. Holmes told him that there was nothing he could do to help, as he had been drinking quite a bit and had ulcers and a bad stomach.

Richard J. Mason and Michael Invergo, police officers, testified for the State that they assisted in the arrest of defendants. Their testimony was substantially similar to that of Detective Walker. Invergo, however, had left the station at 5:00 p. m. and did not see Holmes spit up any blood.

L. Michael Getty testified for the State that he was an Assistant State’s Attorney on January 10, 1963, and had occasion on that day, at 8:30 p. m., to see defendants at the Maxwell Street station. He met first with defendant Holmes, advised him of his right to remain silent, and asked him if he wished to make a statement. Holmes said that he did. In response to a question, Holmes also stated that he had been treated well by the police. Holmes related certain facts about the death of Jake Allen. Getty then met Harper, and advised him of his right to remain silent. Harper also indicated that he had been treated well and made no complaint to the witness. He talked to Harper for 15 minutes concerning the Allen incident.

After the showup, he again talked with Holmes, who related facts about Sadallah’s death. He advised Holmes of his rights, and suggested that they restrict the conversation to Jake Allen. After a visit with Harper, where a similar discussion took place, Getty returned to Holmes’ room, and the court reporter then came in and took a written statement. The same process was repeated in defendant Harper’s room culminating in a written statement.

Getty then returned to defendant Holmes and, using the same procedure involving two separate interrogations, obtained a written confession with respect to Sadal-lah’s death. Harper, in like manner, also gave a statement. The witness stated that the initial oral statements of both defendants were substantially the same as those that were later recorded by the reporter.

The following morning, at the State’s Attorney’s office at 2600 South California Avenue, he read to defendants, and they read in his presence, the statements that had been recorded the previous night. They made corrections, initialed each page, and signed their names on the last page of each statement.

Defendants did not complain to him of any mistreatment. He did not see Holmes spitting up blood, nor did he see either defendant in handcuffs at any time. He did notice defendants drinking from cups and believed that he saw them eating some food during the course of the evening. When defendants signed the statements, they said they had slept but “not very well.”

James Anderson, a police officer, was on duty at Area 4 on January 10, 1963. He observed and questioned defendants during their detention. He never struck them nor promised them leniency. Defendants never complained in his presence about their treatment. He did see them in handcuffs, and he saw defendant Holmes spitting blood. He questioned him about it, but Holmes merely replied that he had a bad stomach. Defendants were given something to eat that evening.

Paul Esling, a shorthand reporter for the State’s Attorney’s office, took two separate statements from each defendant concerning the deaths of Allen and Sadallah, respectively. Defendants never complained to him of bad treatment, nor did he see Holmes spit up blood. Neither he nor anyone else struck either defendant or made any threats or promises. He did not hear the Assistant State’s Attorney caution defendants that they did not have to “make any statement against their constitutional rights.”

Defendant Harper testified that he and Holmes were handcuffed at the time of their arrest at the welfare station. They were taken to Area 4, made to unload their pockets, and placed in separate rooms. Harper was handcuffed to a radiator. Police officers periodically came into the room to ask him questions about some robberies. Harper testified that he was not told of a right to remain silent, nor was he permitted to place a telephone call.

He testified that he was beaten by policemen many times during his detention at Area 4, and identified several. Sometimes he was struck from behind and didn’t see who was responsible. He also heard Holmes crying in the other room and when they were brought together he noticed that Holmes was bleeding from the mouth. Holmes told him that he was hit in the stomach with a flashlight.

Harper testified that he did not tell Hr. Getty the truth because one of the policemen who had inflicted the punishment was present and he was afraid he would have to undergo more of the same treatment. The statement that he gave was not given voluntarily, although it was the only time at the station when he was not handcuffed. He was not allowed to sleep, and ate at midnight only after making the confession. He stated that he made the confession up, that it was a falsification, a lie. The police had given him stacks of papers containing complaints from Area 4 with facts and information which he used in making up his statement. He was in “a regular formal lineup with eight or nine men.” He signed the confession on January 11, but was not brought into court until January 81, 21 days after his arrest.

Defendant Holmes testified similarly as to the facts concerning the arrest. He stated that he was then transported to the police station, placed in a small room, and handcuffed to a radiator. He was beaten by several detectives while in that room, and identified them in court. The only one who didn’t strike him was Officer Invergo. Detective Walker caused him the most pain by hitting him in the stomach with a flashlight. Several of the officers intermittently questioned him about some robberies. He told them he didn’t know anything about those robberies and, consequently, “that’s what kept me getting beat by these officers.”

He stated that he didn’t know anything about Atallah Sadallah. However, he did talk to Mr. Getty about Sadallah’s killing following the second showup at the station. When he gave the statement, his condition was poor, as he was tired, sleepy, hungry and spitting blood. Mr. Getty later gave him a statement to be signed, although he never cautioned the witness as to his right not to give a statement or of any constitutional rights. After signing the statement, he received something to eat and was then taken to a lockup at 11th Street. He testified that the statements were false.

The following morning he was brought to the State’s Attorney’s office. He could read; he read the statement, understood it, and signed it. After this, he was moved to County Jail. He found out at the jail that he had received a mild rupture as a result of being hit by the flashlight. He did not complain about police brutality when he got to the jail, nor had he mentioned it to Mr. Getty or any of the police officers at the station.

EVIDENCE AT THE TRIAL

Mohammed Zubi, for the State:

He was a bacteriologist and a partner of Atallah Sadallah in the operation of a store at 2711 West Ogden. At about 7:00 p. m. on December 28, 1962, he was standing at the meat counter and talking to Sadallah who was between the meat counter and the cash register. Two men, one shorter than the other, came in. They stood beside each other in front of the meat counter, whispering. Sadallah, standing about 4 feet from the two men, asked the witness to wait on them. They asked for 15 cents worth of bologna, so he started cutting the meat for them. Then the man identified by the witness as defendant Holmes pointed a long revolver with a yellowish tip. It looked like he was going to shoot, but he came closer and asked the witness to lie down. Holmes then called Jimmy Johnson, a helper in the store, and made him lie down also. When they were told to lie down, the other man, identified as defendant Harper, moved from the front of the meat counter toward the cash register. The witness then heard Sadallah say, “Don’t shoot me, don’t shoot me, don’t kill me.” He heard a shot; then all was quiet. Holmes came back to the meat counter and asked if they had any guns or money. The witness replied, “No, no gun, no money.” He then heard the cash register drawers being opened, heard “money noise,” and the cup being taken out. Everything then became quiet.

The witness then watched Holmes as he left. The store was equipped with side mirrors that enabled him to observe anyone in the store. He found his partner lying on the ground, bleeding from his nose. One hundred dollars was missing from the cash register and money was also taken from Sadallah’s pockets; probably $300 in all. The whole robbery took about three to five minutes, “could be more or less.”

Jimmy Johnson and David Taylor were in the store at the time. He and Jimmy Johnson attended a lineup at Area 4 where they were shown pictures. He was shown many pictures, including one of defendant Harper, but didn’t pick it first thing. Jimmy picked it and he then identified it. He then attended a lineup on January 10, 1963, where he identified both defendants.

James Johnson, for the State:

He is 16 years old and worked for Mr. Zubi at the time of the occurrence. He identified both defendants in court as the men who robbed the store. He was standing by the meat counter when defendants came into the store. As they announced the “stick up,” he walked toward the back door, but defendant Holmes called him back and made him lie down. His testimony as to other events connected with the robbery is substantially similar to that of Mohammed Zubi. He identified both defendants at a lineup on January 10,1963.

David Taylor, for the State:

He is now 15 years old and was 12 at the time of the occurrence. He walked into the store on December 28, 1962, and saw a man holding a gun, while another man was giving him money out of the cash register. Sadallah grabbed one of the men by the head as the man leaned over. The witness then ran into the basement. He identified defendant Harper as being in the store on that day. He saw only one side of his face for a very short time.

Richard Mason, for the State:

He is a police officer and, on January 10,1963, assisted in the arrest of both defendants. At the lineup that evening, he saw Mr. Zubi walk up to both defendants and place his finger on them. He believes there were seven men in the lineup. He saw James Johnson make the same identification.

L. Michael Getty, for the State:

He is an Assistant State’s Attorney and, on January 10, 1963, obtained confessions from both defendants. He testified at trial after refreshing his recollection by reading a memorandum which he had written on January 11. After being advised of his constitutional rights, Holmes told him that he and Harper had gone to the store and that Harper had gotten into a scuffle with the storekeeper ; that he (Holmes) then pulled a gun and cautioned two civilians not to move; that he then heard a click, a misfire, and a shot; that he and Harper then left with the money.

The witness testified further that Harper (after being advised of his constitutional rights) told him that he and Holmes had gone into a store and taken some money. Upon further questioning, Harper stated that the owner or cashier of the store had grabbed him and tried to pull his coat over his head; that he (Harper) then pulled a gun, which misfired; that the man fell to the floor and Harper pulled another gun and fired at the floor, thinking the man was reaching for something; that he and Holmes then took the money and ran out.

The witness then took written statements from both defendants after again advising them of their rights. Officer Lenz was present, as was Mr. Esling, the court reporter, who took down the statements and transcribed them for defendants’ signatures. (Both written confessions — each admitted only as to its maker — were introduced into evidence at the close of the State’s case.)

William Lenz, for the State:

He is a police officer and was present at Area 4 on January 10, 1963. He participated in several conversations with defendants on that day. He told Holmes, during one of the conversations, that Harper had informed them of his part in the shooting. Holmes asked that Harper be brought in and that he say this in front of him. This was done. Then Holmes confirmed the shooting, relating in some detail the sequence of events.

Harper’s statement came some time after the lineup. He also detailed the incident. Harper did not mention anything about being out of town on December 28, 1962.

In addition to the trial testimony recited above, witnesses Richard Mason, Robert Walker, Paul Esling, Michael Getty and William Lenz repeated substantially the same testimony which they had given at the hearing on defendants’ motion to suppress.

Cecil Haynes, for the defense:

He has lived in Blytheville, Arkansas for about 44 years and is in the Yellow Cab business. On December 28, 1962, he was sleeping on a couch at the cabstand when he was awakened by two men, a woman, and a little child. They wanted a ride to the hospital because the child needed attention, and one of the men (identified by the witness as defendant Harper) asked for a cab. The witness paid one of his drivers to take them to the Chiek-asawba Hospital. The driver brought them back about 20 or 30 minutes later. The witness was lying down and didn’t get a good look at the three persons, only their height. The first time he had observed them “for around five minutes.” At that same time, another man was near the cabstand and asked him for help in starting a car. The witness refused, and one of the other two men told the man to leave. He then had an opportunity to see the two men for a third time, but “it was night,” he didn’t have his glasses on, and he “couldn’t see too good.”

He testified that the only way he could make an identification was by something that had been said that night. Defense counsel had taken him to see defendants prior to the trial, witness asked them questions, and Harper told him exactly what had been said by the man who wanted help with his car. He knew that the date all this occurred was December 28, “because it was the third day after Christmas and [he] was back over there working day and night.” The third day after Christmas could be as early as one minute after midnight on December 28. He had no written memorandum of the event and didn’t remember which day of the week it was.

A year or two prior to the trial, some “fellers” came to Blytheville to discuss the event. They talked to the witness concerning the time of the occurrence and got an affidavit from him. He told them it had been “around the 28th of the month.”

James Anderson, for the defense:

He is a police officer attached to Area 4. On December 28, 1962, and on January 10, 1963, he had conversations with Mohammed Zubi, and made out the police report on the death of Atallah Sadallah.

This witness was also called by the State in rebuttal, at which time his testimony was substantially similar to that he had given at the hearing on the motion to suppress.

Thomas Talty, for the defense:

He is a police officer who, on December 29, 1962, assigned Officer Hanna to take Mohammed Zubi to the album room to view photographs. As the supervising sergeant, he read and signed Hanna’s report.

Steve Hanna, for the defense:

He is a police officer and took Zubi and Johnson to the album room. Both tentatively identified a photograph of Harper, but they stated that in the photo his lips appeared a little heavier and thicker than when they viewed him and that he appeared to have a growth on his chin which the offender did not have. They also picked out the picture of another suspect with similar features, but said that they didn’t think he was the offender.

Andrew Harper, in his own behalf:

He testified that he left Chicago on December 21, 1962, with defendant Holmes, Lillian Bolán, and her daughter. They traveled to South Bend, Indianapolis and St. Louis, arriving at 6:00 a. m. on the 23rd. They took a bus to Blytheville, Arkansas, where he was bom and where his aunt lives. She did not have accommodations for them, so she gave the witness an address of another aunt in Car-ruthersville, Missouri, 28 miles away. They stayed in Carruthersville one night, stole a ’53 or ’54 Buick, and went back to Blytheville on the morning of December 28.

(It was stipulated that if John Allen, a policeman assigned to the auto pound, were called as a witness, he would testify that a 1953 Buick was reported stolen in Carruthersville, Missouri on December 28, 1962, at 2:15 a. m. and found in Chicago on January 4, 1963, in an alley at 1325 S. Bell Street. Parts of the car and miscellaneous items were missing.)

They stayed in Blytheville that day, and that evening, at 11:00 p. m., Mrs. Bolán’s baby had apparently stopped breathing or was sick. At the Blytheville Hospital they were told there was no doctor. A man stopped his car and offered to help. He woke up a man in a nearby cabstand and asked him if he could take these people to a hospital, which he did. (He identified the man at the cabstand as Mr. Haynes who had been in court the day before.) They were at the Chickasawba Hospital for 30 to 45 minutes before returning to the cabstand. There, he heard a man arguing with the cabman and Harper told him to leave. Then he (Harper), Holmes, the woman and her daughter headed back to Chicago, arriving at 2:30 p. m. on December 29. They left the automobile in the 2200 block of 13th Street.

He testified concerning his arrest and the treatment he claimed to have suffered at the hands of the police in Area 4. He stated that no one ever identified either defendant in the first lineup at 6:00 p. m. At the second lineup, Officer Anderson pushed James Johnson into pointing, him out. The remainder of his testimony pertaining to his arrest and detention was substantially similar to that given at the hearing on the motion to suppress.

Edward A. Gron, for the defense:

He is a record officer in the Cook County Jail. John Holmes’ record indicates that he was committed to the jail on January 11, 1963. The record also shows that he was examined by a doctor upon admission; that his “General Physical Condition” was “Good”; that nothing was indicated as to “Any Emergency Condition”; that he had no recent scars, abrasions, bruises, marks or lacerations; and that thereafter he was not seen by a doctor until May, 1965.

Ulette Goodloe, for the defense:

She is a registered nurse at Cook County Jail Hospital and had seen John Holmes many times. He first came to the hospital on January 14, 1963, and had been there a total of 131 times by October 29, 1965. He never complained about ulcers.

On cross-examination, she testified that Holmes had never complained about injuries resulting from blows, and that when he first came in on January 14, 1963, it was for a gonorrheal discharge. After the original examination, medical records are kept separate from the jail record.

Louis Denson, State rebuttal witness:

He is a police detective and on January 10, 1963, was assigned to a homicide investigation at Area 4. (He did not testify on the motion to suppress.) He saw defendants there for about an hour and a half, during which time neither he nor anyone else struck, kicked or abused either defendant in any manner.

OPINION

Defendants initially contend that the court erred in denying their motion to suppress the confessions. They rely primarily on People v. Harper, 36 Ill2d 398, 223 NE2d 841, in which these same defendants were tried for the murder of one Jake Allen. The confessions in that case had been given a few hours before those in the instant case. There, the court listed reasons for remanding the cause for a new hearing on the motion to suppress. The reasons, which also form the base for defendants’ objections in the instant case, were given as: (1) “the long delay in presentment to a judicial officer”; (2) failure of the State to call all of the witnesses to the confessions; and (3) lack of medical explanation for Holmes’ bleeding. Harper, supra, at page 403.

In addition, defendants, in the case at bar, allege that they were not advised of their right to have a lawyer present at the time of their confessions, citing Escobedo v. Illinois, 378 US 478, and Miranda v. Arizona, 384 US 436. The court in Harper, supra, at page 403, held that the above-cited Supreme Court cases were not controlling since the trial had antedated them, and the same is true in the case at bar with respect to Miranda. While this is not true of the instant case with respect to Escobedo, that decision is inapplicable for the reason that these defendants did not request an attorney and were advised of their right to remain silent. Escobedo, supra, at pages 486-7. The court in Harper also stated at page 403:

From the record it is clear that defendants were not denied their constitutional rights to counsel under the rules expressed in People v. Hartgraves, 31 Ill2d 375, cert den 380 US 961, 14 L Ed2d 152, and their confessions need not be set aside on the ground of failure to advise them of their right to counsel.

Defendants assert that the voluntariness of their confessions was affected by the 20-day delay in taking them before a judicial officer, which contravened the statute requiring that this be done “without unnecessary delay.” Ill Rev Stats 1965, c 38, par 109-1. The court in Harper stated that this should be considered on the question of voluntariness, but held that such delay did not, per se, render the confession inadmissible. See the discussion in Harper, supra, at pages 402-403. We believe that such delay should be accorded very little weight where, as in the instant case, it did not precede the confession. The confessions in the case at bar were made orally soon after arrest and were recorded in due course, all written statements being completed within 10 hours of arrest. It has been held that “illegal detention after a confession has been voluntarily given, will not relate back so as to render the confession inadmissible.” People v. Palmer, 31 Ill2d 58, 68, 198 NE2d 839; see also People v. Musil, 37 Ill2d 373, 378, 227 NE2d 751. We, therefore, find that the voluntariness of the confessions in the instant case was not affected by the subsequent delay in taking defendants before a judge.

Defendants argue that the State failed in its duty, at the hearing on the motion to suppress, to produce all material witnesses connected with the taking of the confessions, citing Harper, supra; People v. Wright, 24 Ill2d 88, 180 NE2d 689; and People v. Dale, 20 Ill2d 532, 171 NE2d 1. Specifically, they contend that an Officer Den-son and a parole officer Bright were never called after the State had advised the court that they would be.

The State responds that defendants cannot now object to the State’s failure to call these witnesses, because the applicable rule, as codified in Ill Rev Stats 1965, c38, § 114-11 (d), states:

Objection to the failure of the State to call all material witnesses on the issue of the voluntariness of the confession must be made in the trial court.

There are no “peculiar circumstances” (see Harper, supra, at page 402) in the instant case that would permit circumvention of the statute. No objection having been made at the trial level, we will not entertain any at this point. In addition, we find fault with defendants’ factual presentation of this last issue. The record indicates that defendants advised the court that they wanted to present Officer Denson and the parole officer as their witnesses. Pursuant to this request, Officer Denson was in court the next day during a continuation of the hearing on the motion to suppress and was, therefore, available as a witness but was not called by defendants. He did testify on behalf of the State at the trial to facts bearing on the issue of voluntariness when he stated that he neither witnessed nor took part in any acts of brutality. These facts are proper for our consideration and strengthen our finding that the trial court properly denied the motion. People v. Hudson, 38 Ill2d 616, 619, 233 NE2d 403. Holmes’ parole officer was not mentioned again by defendants after their first brief reference. Officer Lenz testified that he did not recall seeing any parole officer during the course of defendants’ interrogation. The State is not required to produce everyone who may have seen the accused during his detention. People v. Nicholls, 42 Ill2d 91, 102, 245 NE2d 771; People v. De Simone, 27 Ill2d 406, 410, 189 NE2d 329. The basis for requiring witnesses to be called is the materiality of their testimony on the issue of the voluntary nature of the confession. People v. Sims, 21 Ill2d 425, 432, 173 NE2d 494. Because the parole officer was never again mentioned, it is reasonable to assume that he was not a material witness.

Defendants claim that the court also erred in denying the motion to suppress because no report of Holmes’ physical examination at the jail was produced, nor did the examining physician testify. We note again that defendants made no objections to the State’s failure to provide this evidence. Moreover, testimony at the trial established that the jail records showed that, at the time he was admitted to the jail, defendant Holmes’ general physical condition was “good,” with no emergency condition and with no recent scars, abrasions, bruises, marks or lacerations. A nurse from the jail hospital also testified at trial that Holmes’ first visit to the hospital was on January 14, 1963 (three days after his admission to the jail), when he complained of gonorrheal discharge. He did not complain to her of any facial injuries or injuries resulting from blows. Both defendants testified that they were beaten and that their confessions had been coerced. This was denied by each police officer who was present. Some officers testified, in partial corroboration of defendants’ testimony, that Holmes was seen expectorating blood, but to each inquiry as to his condition, Holmes replied that it was caused by an ulcer or “bad stomach.” Under these circumstances, we conclude that the trial court’s finding that the confessions were voluntary was not contrary to the manifest weight of the evidence. People v. Nicholls, 42 Ill2d 91, 101, 245 NE2d 771.

Defendants next contend that they were not proven guilty beyond a reasonable doubt. We have already established the propriety of the admission of defendants’ confessions both oral and written. Two State witnesses, Zubi and Johnson, observed defendants during the robbery for several minutes from just a few feet away, and later identified Harper from photographs. They also identified both defendants at a police station lineup. Another witness, David Taylor, identified Harper as the man who had struggled with the deceased. The testimony of the witnesses concerning the lineup identifications was certain and positive, and based upon an opportunity to observe defendants for a sufficient period of time and under adequate conditions of lighting and proximity. See discussion in People v. Cook, 113 Ill App2d 231, 252 NE2d 29.

Defendants place great stress on their alibi evidence to raise doubt as to their guilt. This evidence was inadequately corroborated by the testimony of Cecil Haynes. His testimony was quite weak, as he could not remember with certainty the date on which he claimed to have seen Harper in Arkansas, except to say that it was “three days after Christmas,” or “around the 28th of the month,” around midnight. It was not clear from his testimony whether he was recalling the early hours of the 28th or of the 29th. This testimony, Harper’s own alibi testimony, and the stipulation concerning the stolen car, all present, at best, a question of credibility of the witnesses which is a matter for the jury to determine. We conclude that there is adequate basis in the record to establish defendants’ guilt beyond a reasonable doubt. See People v. Nicholls, 42 Ill2d 91, 95, 245 NE2d 771; and People v. Cook, supra.

Defendants contend that the court erred by denying defendant Holmes’ motion for severance, since the extrajudicial confessions of both defendants, subsequently introduced into evidence, prejudiced defendants and deprived them of a fair trial. Defendants lay great stress upon the doctrine of Bruton v. United States, 391 US 123, 137, but such reliance is misplaced. Bruton involved a situation in which an extrajudicial statement of a codefendant, incriminating both defendants, was admitted in a joint trial over the objection of the defendant who had not confessed. This was held to violate the latter defendant’s sixth-amendment right to confront witnesses against him. The instant case, however, contains a significant factual distinction. Here, each defendant had himself made a confession which was substantially similar to that of his codefendant. See People v. Hammond, 115 Ill App2d 347, 253 NE2d 29. This exact situation has been treated by the Illinois Supreme Court in People v. Rosochacki, 41 Ill2d 483, 244 NE2d 136 where it was stated at page 494:

It is clear to us that a very substantial difference exists between a case in which a jury hears a co-defendant’s statement incriminating a defendant who has himself made similar inculpatory admissions, and the Bruton-type case in which the co-defendant’s statement is used against a defendant who has made no admissions. In the former case the prejudice to the defendant, if any, is minimal, and entirely Insufficient to necessitate retrial, particularly where, as here, defendant’s guilt seems clear.

Accord, People v. Rhodes, 41 Ill2d 494, 244 NE2d 145. We accordingly reject defendants’ contention as to prejudice arising from the introduction of the confessions into evidence, and we therefore find no error in denial of severance.

Defendants also assert a related argument that it was prejudicial to allow the jury to take the confessions to the jury room during their deliberations. The test of admissibility having been met, this was a matter within the discretion of the trial court. People v. Caldwell, 39 Ill2d 346, 356-359, 236 NE2d 706. We find no abuse of that discretion to the prejudice of defendants. People v. Allen, 17 Ill2d 55, 62-63, 160 NE2d 818.

Defendants next contend that the trial judge’s denial of defendants’ repeated motions to sequester the jury was a denial of an “absolute right,” which constituted reversible error, citing a number of cases.

At the conclusion of each trial day, the judge carefully cautioned the jurors not to discuss the case with anyone under any circumstances, and admonished them not to listen to any news programs on television or radio, nor read any newspapers. Likewise, with the resumption of the trial each morning, the judge asked all the jurors whether they had heard anything about the case from any outside source. Each juror responded in the negative.

The exception to this pattern occurred on the fourth day when it was brought to the court’s attention in camera that publicity was being generated concerning police brutality in an unrelated matter. The court therefore granted defendants’ motion to sequester for that night, but the publicity did not materialize. The following day the court denied a motion for continued sequestration, stating that the paramount reason for sequestering the jury had been obviated because during the trial defendants had mentioned in evidence their earlier convictions and death sentences.

Well along in the trial, the trial judge stated, in denying a defense motion for sequestration:

Well, I have admonished the jurors not to read any papers or listen to any radio news or any television newscasts. And I have observed myself that there has been no news items concerning this matter in any of the papers, nor have I heard or seen any radio or television newscasts. And I checked with the jurors each morning as they come in. And I will continue to do that.

Also, in closing argument to the jury, defense counsel said:

All through this trial you have heard His Honor Judge Cohen tell you, “Don’t read the newspapers, don’t listen to the radio or watch television.” It’s almost silly to have told you that, insofar as nothing of this case has appeared in the news media.

We do not believe that any prejudice to defendants resulted because the jury was not kept together during the trial. See People v. Wilson, 400 Ill 461, 477, 81 NE2d 211; and People v. Fisher, 340 Ill 216, 243, 172 NE 743. In any event, this entire point is unavailable to defendants in this court because it was not presented to the trial court in defendants’ written Motion for New Trial (which specified some 28 other grounds) and was therefore waived. People v. Irwin, 32 Ill2d 441, 443-445, 207 NE2d 76; People v. Nelson, 41 Ill2d 364, 365-366, 243 NE2d 225; People v. Hunter, 23 Ill2d 177, 178, 177 NE2d 138; and People v. Flynn, 8 Ill2d 116, 118-119, 133 NE2d 257.

Defendant’s final contention is that they were denied their right to an impartial jury, in violation of the sixth and fourteenth amendments to the United States constitution. They object specifically to the systematic exclusion of jurors at the voir dire, when veniremen were excused for cause if they stated that they had religious or conscientious scruples against the imposition of the death penalty. Defendants rely upon Witherspoon v. Illinois, 391 US 510, claiming that this method of selection resulted in a prosecution-prone jury that did not represent a cross-section of the community. This point is without merit. As the court stated with regard to the identical issue in People v. Cesarz, 44 Ill2d 180, 255 NE2d 1, at page 182:

The same claim was made in Witherspoon and the United States Supreme Court noted that the data in that case was too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. In footnote 21 to the Witherspoon decision the court said, “Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” (Emphasis in original.)

The trial judge in the instant case did not impose the death sentence recommended in the jury’s verdict, thereby eliminating the Witherspoon objection. Furthermore, the data in this case are, as stated in Witherspoon at page 517, “too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt,” so we likewise cannot conclude that a jury thus selected is an unfair jury on the issue of guilt. Therefore, the method of exclusion utilized in the instant case does not require reversal of the judgment of conviction. See People v. Cesarz, supra; and People v. Lee, 44 Ill2d 161, 254 NE2d 469.

The judgment is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.

       Five or six blocks from the scene of the murder.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Lee Thomas, Defendant-Appellant.
    Gen. No. 51,955.
    First District, Fourth Division.
    July 31, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Rape. Ill Rev Stats 1965, c 38, § 11-1.

Aggravated battery. Ill Rev Stats 1965, c 38, § 12-4.

Attempt (murder). Ill Rev Stats 1965, c 38, §§ 8-4, 9-1.

Robbery. Ill Rev Stats 1965, c 38, § 18-1.

JUDGMENT

After a bench trial, defendant was found guilty on all charges and sentenced to concurrent terms of 50 to 75 years for rape, 9 to 10 years for aggravated battery, 19 to 20 years for attempted murder, and 19 to 20 years for robbery.

CONTENTIONS RAISED ON APPEAL

1. Alibi evidence, coupled with prejudicial identification testimony, raises a reasonable doubt of defendant’s guilt.

2. Defendant was prejudiced by an improper identification procedure.

EVIDENCE

AnnaB. Smith, for the State:

On February 23, 1966, at approximately 12:15 p. m., she and her three young children were in the dining room of their apartment at 1931 South Homan Avenue watching television. She looked up, while nursing the baby, and saw a man she identified as defendant standing in the doorway leading from the living room. Holding a knife, he told her to “shut up” and that he would kill her. She told him to take what he wanted and leave, but he lunged for her, causing her to release the baby. He then banged her head against a chest of drawers, again saying, “Shut up. I will kill you.” As her two young sons left the room, one said, “Leave my mama alone,” whereupon defendant swung at him with the knife. Defendant then began hitting the witness in the head and picking at her face with his knife, and continued to say, “Shut up. I will kill you.” He asked if she had a gun or any money, but she replied that she didn’t.

He forced her into the bedroom, started to rip off her clothing, and made her strip and lie on the bed. He then forced her to remove her pants, tore off her top clothing, and said, “Keep your eyes closed or I will pick them out.” He stuck her in the shoulder with the knife before unzipping his pants and raping her. During the rape, he tried to cover her face with her robe top, but she kept pushing it away because she was smothering. After he had finished the act, he cleaned himself and ransacked the dresser, taking a dollar and some change. He said that he wanted to kill her and that he would see her again. When defendant had left, she ran to the phone, but defendant had cut the cord, so she hurried to the back and front doors to “holler” for help. A neighbor, Mrs. Berry, from an apartment on the floor below, immediately came upstairs to help. Witness received cuts on several fingers, the right shoulder, her left side, her stomach, and was slashed and scraped all over her face.

Witness stated that defendant was wearing dark clothing, dark pants, a dark necktie, and a “flowered blue,” white or light shirt. He had on a dark trench coat with a dark blazer underneath. The trench coat was an all-weather one with a plaid design on it. She told Officer Cangelosi, who arrived on the scene shortly after the attack, that the man might have been wearing a pink shirt. She never said that the shirt was light red. She did tell him that he was wearing a charcoal gray coat. Defendant had a hat on, but she couldn’t “remember it,” although she may have told the officer it was charcoal gray.

The description of the assailant which she gave to Officer Cangelosi was of a male Negro in his twenties, 5' 8" to 5' 10" tall, and weighing about 190 to 200 pounds. Defendant had black skin and an unkempt mustache, meaning that there were ragged, unshaved hairs growing across the lip. She was “absolutely certain” that defendant is the man who attacked her, as she was able to observe him during the entire episode, except for the periods of time during the rape when he covered her face.

While she was recuperating in the hospital, Officer King showed her a book full of photographs from which she picked one out. The next day, the officer brought defendant to the hospital and she identified him as her rapist.

Sandra Berry, for the State:

She lives in the apartment immediately under the victim’s. At approximately 1:00 p. m., on the day in question, she heard a pounding on her ceiling and ran upstairs, where the victim told her she had been raped. She noticed that clothing in the bedroom was strewn all over the floor and that blood covered everything.

Erma Tyus, for the State:

She lives at 1935 South Homan, which is a separate wing of the victim’s building. On February 23, 1966, at approximately 1:00 p. m., she had occasion to leave her apartment and proceed toward the entrance to 1931 South Homan, which is across the courtway. She saw a man leaving the 1933 entrance. He was wearing a hat, gray car coat, and dark trousers, and passed within a foot or two of the witness. When he reached the sidewalk, he turned and went into the 1935 entrance. She followed him into the entrance, went to her apartment and called the police. A week later, after she had given the man’s description to the police, an officer showed her a picture of defendant which she identified as being of the man she had seen that day.

The description she had given to the police was that of a man between 25 and 30 years of age, between 5' 7" and 5' 9" tall, and weighing 160 to 175 pounds. She didn’t notice if he had a mustache, but he did have “rough type” skin.

Patrick King, for the State:

He is a police officer and, on February 25,1966, visited the victim at Mt. Sinai Hospital. He showed her some photographs of men and she identified one as the man who had raped her. The next day he took defendant, who had been arrested, to the hospital. When the victim saw him, she said, “That is the man. Get him out of here,” and became hysterical and started to cry.

James Griffin, for the State:

He placed defendant under arrest. Defendant said it was a “bum rap.”

It was stipulated that defendant is 25 years of age, 5' 5" tall, and weighs 154 pounds. The trial judge stated for the record that defendant is comparatively dark-skinned and is of stocky build. The judge also indicated that, from his vantage point in the courtroom, it was difficult to say whether or not defendant was wearing a mustache.

Dorothy Johnson, for the defense:

She is a first cousin of defendant and, on the day in question, saw him about 9:00 a. m. at her home, which is located at 19 North Ada Street. At 11:00 a. m., he left to pay a bondsman whose office is at 11th and Pulaski. He was wearing a bright red shirt, dark pants, and a sport coat. He also had on a hat and a tweed overcoat. Defendant did not have a mustache or long hair on that day. She next saw him sometime between 1:20 p. m. and 2:00 p. m., but she talked to him on the telephone between 12:30 and 1:00. When he returned, his clothes were not disheveled, nor was there any blood on them.

Mary Young, for the defense:

She is defendant’s aunt and he lives with her at 19 N. Ada Street. She testified to essentially the same facts as related by her daughter, Dorothy Johnson. In addition, she mentioned that defendant never wears a tie and that he shaves twice a week.

Henry Morris, for the defense:

He is defendant’s uncle and picked him up for work on the day in question sometime between 4:00 and 4:80 p. m. Defendant did not have a mustache and is always clean-shaven.

Doris Drake, for the defense :

She is 15 years old and knew defendant prior to seeing him on February 23, 1966. She got on a Madison Street bus at Kedzie (3200 West) and sat down beside him. He said that he was going to pay some bills. He alighted from the bus at Pulaski and she thought it was about 12:10 p. m., because children were out of school. She saw defendant get on another bus at Pulaski. (Madison and Pulaski intersection is about three miles from the victim’s home.) She didn’t notice what defendant was wearing.

Arthur Cabot, for the defense:

He is president of Prevue Metal Products, where defendant was employed until February 26, 1966. He produced a time card showing that defendant appeared for work at 5:00 p. m. on February 23, and worked until 1:00 a. m. the following morning. He usually saw defendant at the beginning of the shift, but never saw him with a mustache.

Emil Delgado, for the defense:

He was a fellow employee of defendant’s for two years. He stated that defendant never wore a mustache, nor did he ever recall seeing defendant unshaven.

Ronald Wozniak, for the defense:

He is a police officer and interviewed the victim on the day of the attack. She described her assailant as a male Negro, approximately 25 years of age, 5' 11" tall, and weighing 210 pounds. She told him that he had a jet black complexion and an untrimmed mustache and was wearing a dark hat, dark grayish-black overcoat, navy blue pants, black shoes, blue shirt, light blue tie, and black leather gloves.

He questioned the victim at the hospital where she was being “sewn up.” She was distraught and hysterical and didn’t seem to be aware of anything.

Carl Cangelosi, for the defense:

He is a police officer and also interviewed the victim in the hospital on that day. The description she gave him was substantially similar to that given Officer Wozniak, but differed in the following respects: She stated that defendant was between 21 and 25 years of age, 5' 8" to 5' 10" tall, and weighed between 190-200 pounds. She also told him that he was wearing a pink or light red shirt.

He noticed that the victim was very upset and in a highly nervous state.

It was stipulated that Officer Sarafin interviewed Erma Tyus over the phone on February 23,1966, and that she described the man whom she saw as being a male Negro, aged 25 to 35, weighing 175 to 200 pounds, 5' 7" to 5' 9" tall, dark-complected, with pockmarked face, heavy mustache, and untrimmed, long black hair. He was wearing a three-quarter car coat, brown hat, and dark trousers that were long and baggy.

Manuel Cooper, for the defense:

He produced in evidence a receipt dated February 23, 1966, made out to defendant from Lawrence Enterprises, located at 1103 South Pulaski. He couldn’t identify the man whom he had given the receipt to, but noted that it must have been made out during his work hours, 9:00 a. m. to 4:00 p. m. and 6:00 to 8:30 p. m.

OPINION

Defendant argues that the instant conviction rests upon an identification which is doubtful, vague and uncertain, and that it must be reversed, citing People v. Gardner, 35 Ill2d 564, 221 NE2d 232; People v. Cullotta, 32 Ill2d 502, 207 NE2d 444. It was stipulated that defendant’s actual height is 5' 5" and that his weight is 154 pounds. The victim twice gave descriptions of her assailant to police at the hospital on the day of the attack. At first, she stated that his height was 5' 11" and weight was 210 pounds. She then told the second officer that his height was between 5' 8" and 5' 10" and weight between 190 and 200 pounds. Her description of his attire also differed, especially with regard to defendant’s shirt, which she first stated was a “flowered blue,” but then said that it was “light colored or white.” She also mentioned that defendant wore an unkempt mustache, as if he hadn’t shaved recently. Mrs. Tyus, on the other hand, stated at trial that if he wore a mustache she didn’t notice it. However, a police report, introduced in evidence, that was allegedly phoned in by Mrs. Tyus on the day of the incident, contained reference to a heavy mustache and untrimmed, long black hair. She denied having given this description. She also testified that the man was 5' 7" to 5' 9" tall and weighed 175 to 200 pounds.

In spite of these differences in the evidence describing defendant, both witnesses identified him as the man they had seen that day. The victim, several days after the incident, picked the defendant’s picture out of a group of photographs and subsequently identified him at a showup in the hospital. Her identification was positive and certain. Her failure to be completely consistent in describing her assailant to police is understandable and may be adequately explained by the many wounds she had received and the near hysterical state she was in at the hospital. Both officers testified that she was distraught and extremely upset when they questioned her. Mrs. Tyus, whose description of defendant’s physical characteristics closely resembles his actual appearance, positively identified defendant from his photograph and at trial. Her testimony adds strong, independent corroboration to the victim’s identification.

The principal discrepancy in descriptions is whether or not the rapist did or did not have a mustache. The defense witnesses testified that he never wore a mustache, but, in so stating, his aunt, with whom defendant lived, said that defendant shaved twice a week. The trial judge, in the comparatively good light of the courtroom, and from a reasonably short distance, was unable to discern whether or not defendant was wearing a mustache. The same may be said of this court’s examination of defendant’s photograph in evidence. Because of the configuration of the upper lip, it is easy to confuse the lip line with a thin mustache.

The consideration of contradictory testimony and determination of credibility of witnesses and the weight to be accorded their evidence are matters for the trier of fact. People v. Coulson, 13 Ill2d 290, 149 NE2d 96; People v. Davis, 126 Ill App2d 255, 261 NE2d 771. Upon a review of the record, we find sufficient evidence, including identification testimony, to establish defendant’s guilt beyond a reasonable doubt.

Defendant argues that evidence of an alibi, when coupled with the uncertain identification testimony, raises a reasonable doubt of his guilt. The alibi evidence was supplied primarily by members of defendant’s family, who stated that he left home on the day in question at 11:00 a. m. and returned between 1:30 and 2:00 p. m. This fails to account for defendant’s whereabouts during the commission of the crime, as does the testimony of defendant’s employer. Doris Drake, age 15, was the only witness who testified to seeing defendant during the crucial time period that day. Her testimony is considerably weakened by the fact that, without any prior contact, she was asked to testify the day before the trial began. The trial judge, as trier of fact and whose province it'is to assess credibility, rejected defendant’s alibi. There was, in our opinion, sufficient evidence in the record to establish defendant’s guilt beyond a reasonable doubt, and we see no reason to disturb that decision.

Defendant also, contends that the identification procedures utilized by the police were unfairly suggestive and conducive to irreparable mistaken identification, citing Stovall v. Denno, 388 US 293. The challenged circumstances in the instant case are: (1) that the victim viewed a group of photographs while in the hospital and selected defendant’s; (2) that police brought defendant to the hospital the next day and explained to the victim that they had the man whose photograph she had identified; and (3) that she then affirmed her photographic identification and later identified defendant at trial.

We are firmly convinced that the utilization of a group of photographs, as in the instant case, to isolate a suspect or series of suspects is proper in a police investigation of an alleged crime. There has been no allegation by defendant, nor does any basis appear in the record, which indicates that this identification process prejudiced defendant. See Simmons v. United States, 390 US 377, 384; People v. Williams, 117 Ill App2d 34, 254 NE2d 81.

The gravamen of defendant’s complaint is directed to the tactic of displaying him singly to the victim after she had been told that he was the man whose photograph she had picked out. Under the circumstances, we do not find this to have been an improper procedure, but even if the showup at the hospital were considered unnecessarily suggestive (Stovall, supra; Palmer v. Peyton, 359 F2d 199), the victim’s in-court identification will, nevertheless, be admissible if it is shown, by clear and convincing evidence, that it had an independent origin, arising from an earlier uninfluenced observation of defendant. See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; People v. Cook, 113 Ill App2d 231, 252 NE2d 29. Here, the victim was being attacked by defendant for about 45 minutes and, in spite of the fact that defendant attempted to cover her face during part of the incident, she had a more than adequate opportunity to observe him closely. We find that these facts disclose the prior uninfluenced observation which constituted a sufficiently independent origin to support her in-court identification. See People v. Cook, supra.

Although not briefed on this issue, we feel constrained to address ourselves to the matter of sentencing. Defendant received separate sentences for attempted murder, rape, aggravated battery, and robbery. We believe a question exists as to whether two of the offenses charged (attempt (murder) and aggravated battery) resulted from the same conduct. If so, defendant may not be sentenced on more than one, either concurrently or consecutively. SHA, c 38, § 1-7 (m), Committee Comments, p 32. “Conduct” is defined as “an act or a series of acts, and the accompanying mental state.” Ill Rev Stats 1967, c 38, § 2-4.

The evidence shows that defendant wielded a knife which he repeatedly used to inflict multiple wounds upon the victim, and that he also beat her head against a chest of drawers. He then raped the victim, robbed her, and fled. Defendant’s utilization of his knife constituted a continuing use of force far more than was necessary to require the victim’s submission to rape and robbery. It demonstrated a sadistic intention to inflict physical injury upon the victim which was “independently motivated or otherwise separable from” (People v. Stewart, 45 Ill2d 310, 313, 259 NE2d 24) the rape and robbery, and was thus sufficient to constitute a separate offense. We do not believe, however, that the record supports convictions for both attempted murder and aggravated battery. See People v. Baker, 114 Ill App2d 450, 252 NE2d 693. While ordinarily this circumstance would result in affirmance of the conviction for the greater of the two offenses (in this case, attempted murder) and reversal of the other (People v. Stewart, supra), we do not reach that conclusion in this case. There is no question that there was adequate proof to establish the necessary mental state for aggravated battery. We believe, however, that the opportunity for murder was such that there was insufficient proof that defendant intended or attempted to commit that crime. We, therefore, reverse defendant’s conviction for attempted murder and affirm the other three convictions. In doing so, we permit to stand sentences for 9 to 10 years and 19 to 20 years, which, singly, would, in our opinion, be improper sentences. The small spread between minimum and maximum forecloses any effective function of the Parole Board and tends to remove all incentive to the defendant to be a good prisoner. In view of defendant’s concurrent sentence of 50 to 75 years for rape, however, which we consider appropriate in this case, the narrowness of the spread in the other sentences becomes largely academic.

The judgment on the charge of attempt (murder) is reversed, and the judgments with respect to the offenses of rape, robbery, and aggravated battery are affirmed.

Affirmed in part and reversed in part.

DRUCKER and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfred Armstrong and Jerry Sumlin, Defendants-Appellants.
    Gen. Nos. 52,995, 52,996. (Consolidated.)
    First District, Fourth Division.
    July 31, 1970.

      Melvin B. Goldberg, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Armed robbery. Ill Rev Stats 1963, c 38, § 18-2.

JUDGMENT

After a jury trial, both defendants were found guilty and sentenced to terms of 15 to 20 years (Armstrong) and 10 to 15 years (Sumlin), to run consecutively with defendants’ prior sentences for murder, if the latter are finally upheld.

DEFENDANTS’ CONTENTIONS ON APPEAL

1. Defendants were denied due. process of law by being prosecuted and convicted twice for the same conduct.

2. The trial court erred when it denied defendants’ pretrial motion to prohibit the State’s use of a prior murder conviction for impeachment purposes.

3. The trial court erred in refusing one of defendants’ tendered jury instructions.

4. The sentences imposed on defendants are excessive.

5. Defendant Armstrong was denied adequate representation by counsel.

EVIDENCE

Emil Misiunas, for the State:

On April 18 and 19, 1966, he owned a tavern at 2419 West Marquette Road. At around 10:30 to 11:00 p. m., on the 18th, he was at the tavern when Charles Size-more arrived. Sizemore’s wife came about midnight. They were the only persons present, and he was serving them. During the evening, Sizemore had four or five seven-ounce beers and his wife had one or two. At approximately 1:00 a. m., on April 19, three men entered the premises. One man, who was short, ran by him toward the cooler. Another, identified as defendant Armstrong, held a shotgun and said, “Hands up and don’t look around.” Armstrong also told the customers to keep their hands on the bar. The witness kept watching the man with the shotgun until the third man, identified as defendant Sumlin, came behind the bar. Sumlin asked him where the gun was, so he turned and faced Sumlin and told him he had no gun. Sumlin then told him to open the cash register and took money from his shirt pocket and bottles from the bar. He heard the short man say that he discovered some whiskey cases in the storage room, and Armstrong said, “All right, take it.”

Armstrong then ordered the witness to come out from behind the bar and face the wall alongside the customers. Then Armstrong ordered all three into the washroom and told them to stay there. A few minutes later, the witness opened the door of the washroom, saw that defendants were gone, and called the police.

He testified that the tavern was well lit, bright enough to “read a newspaper on the bar.” He couldn’t tell what color clothes the three men were wearing because he was “scared,” not because it was too dark. He identified both defendants in a lineup the day after the occurrence.

Charles Sizemore, for the State:

He was in the tavern on the night in question when four fellows came in and defendant Armstrong, slamming shut the bolt on a shotgun, said, “It is a holdup. Put your hands on the bar.” Defendant Sumlin went behind the bar to the cash register. Another went to the back room and the fourth began taking bottles off the back bar.

Armstrong then took the witness’ wallet, and asked for and took money from his wife’s purse. He was told by Armstrong to get up and face the wall and was then made to get in the washroom. He heard some noise, the slam of the front door, and, after waiting for a few minutes, came out and called the police. The bar was lit well enough to see people’s faces.

He identified both defendants in a lineup on the night following the occurrence.

Loretta Sizemore, for the State:

Her testimony was substantially similar to that of her husband.

Eunice Sumlin, on behalf of defendant Sumlin:

She is the mother of Jerry Sumlin and attested to his good reputation for “peaceableness and lawabidingness.”

OPINION

Defendants initially contend that they were denied due process of law by being prosecuted twice for the same criminal conduct. In order to understand the context of defendants’ argument, it is necessary to consider the appropriate facts as set forth in defendants’ brief, although they are not to be found in this record. On the night of April 18 and 19, 1966, defendants robbed Misiunas’ tavern, robbed another tavern, and shot and killed an off-duty policeman in an attempted robbery of yet a third tavern. All three crimes occurred within a short distance and a short time of one another. Three indictments were returned and the one for felony-murder was tried in September, 1966. Both defendants were convicted. Sumlin’s conviction was affirmed, while Armstrong’s was reversed and the cause as to him remanded for a new trial. People v. Armstrong (Sumlin), 41 Ill2d 390, 243 NE2d 825. The instant case was brought to trial in November, 1967.

The Illinois Criminal Code provides the following pattern for multiple prosecutions:

(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commene-ing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.
(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.

Ill Rev Stats 1965, c 38, § 3-3.

Defendants argue that the State was bound to prosecute “all known related indictments” at the first trial. This contention is without merit, as the statute merely requires that multiple offenses “based on the same act” must be tried together. See the Committee Comments to the above-quoted statute, where it is stated that “Section 3-3 is not intended to cover the situation in which several offenses . . . arise from a series of acts which are closely related with respect to the offender’s single purpose or plan.” SHA, c 38, § 3-3.

Defendants place reliance on People v. Golson, 32 Ill2d 398, 207 NE2d 68, and People v. Mullenhoff, 33 Ill2d 445, 211 NE2d 744. However, there are pertinent factual differences between those cases and the case at bar. In Golson, the court, in reversing the conviction of the defendants in a second trial, commented that “these defendants engaged in but a single act of misconduct.” Golson, supra, at 412. They had been tried under the felony-murder doctrine for two murders, and neither had been physically responsible for the simultaneous deaths. (Felony-murder is now part of the Criminal Code. Ill Rev Stats 1963, c 38, § 9-1(3).) Mullenhoff also involved a single act, for which defendant was tried separately for deviate sexual assault and attempted rape. The court invoked the “fundamental unfairness” doctrine (Ciucci v. Illinois, 356 US 571; Golson, supra), in holding that the State was barred by the first acquittal from proceeding on the second offense.

The separate trials under our consideration, however, resulted from separate and distinct acts of defendants. The evidence in the two causes was completely different, and the offenses were committed in two separate taverns at different, albeit closely related, times. See People v. Calloway, 74 Ill App2d 418, 429-30, 221 NE2d 73. We hold that defendants’ rights were not violated because they were prosecuted for the criminal act which is the subject of this case, it being separate and distinct from the act for which they had previously been convicted.

Defendants’ next contention is that the trial court erred by denying their pretrial motion that would have prevented the State from introducing evidence of defendants’ prior murder convictions, for the purpose of impeaching defendants as witnesses if they were to testify. Defendants claim that this effectively denied their right to testify in contravention of their constitutional right to due process of law. The record, in fact, shows that defendants did not testify on their own behalf and, correspondingly, that evidence of the convictions was not offered at trial. Therefore, we believe that defendants’ claim that they were effectively denied their right to testify, is mere conjecture. Defendants opted not to testify for reasons not apparent in the record, and speculation will not serve as a legitimate basis for reversal of this appeal.

The issue, however, remains as to whether the trial court erred in denying defendants’ motion, particularly in view of the fact that their murder convictions were pending on appeal. This question was recently answered in People v. Bey, 42 Ill2d 139, 246 NE2d 287, where the court held such impeachment to have been proper, stating at page 146:

The statutory provision allowing prior convictions to be shown for the purpose of affecting the witness’s credibility makes no mention of convictions on appeal. (Ill Rev Stats 1965, ch 38, par 155-1.) Even in this day of virtually automatic appeals, the judgment of the trial court is still a determination of guilt which stands until it is reversed.

We hold that the trial court’s ruling was proper, given the circumstances of this case.

Defendants claim that the court erred in refusing to give the following instruction to the jury:

The Court instructs the jury that it is your duty to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt, if that reasonably may be done.

Our review of the record indicates that three instructions (all tendered by defendants) were given to the jury pertaining to the presumption of innocence and the State’s burden of proving guilt beyond a reasonable doubt. We believe that when the instructions are considered as a whole — as they properly should be— the jury was adequately informed as to the applicable law. The refused instruction would not have added to the jury’s, understanding of the law, and, on account of its repetitive effect alone, it should not have been given. See People v. Burns, 300 Ill 361, 365, 133 NE 263; People v. Payne, 77 Ill App2d 55, 221 NE2d 778; People v. Dilworth, 67 Ill App2d 384, 214 NE2d 9.

Defendants also contend that their sentences are excessive, objecting especially to the court’s directive that the sentences run consecutively with defendants’ prior convictions for murder, if such convictions are finally upheld. They ask that this court exercise its power to make the sentences concurrent with the prior sentences and also to reduce them. Supreme Court Rule 615; Ill Rev Stats 1967, c 110A, § 615 (b) (4).

Section 1-7 (m) of the Criminal Code (Ill Rev Stats 1967, c 38, § 1-7 (m)) provides that the court in its discretion may impose consecutive sentences “when a person shall have been convicted of 2 or more offenses which did not result from the same conduct . . See People ex rel. Starks v. Frye, 39 Ill2d 119, 233 NE2d 413. We have already determined that defendants’ convictions resulted from separate and distinct acts or conduct, and we find no basis for disturbing the trial court’s exercise of its discretion in imposing consecutive sentences. “The sentence imposed was within the statutory limits and will not be disturbed unless it constitutes a clear departure from fundamental law or is not proportioned to the nature of the offense.” People v. Gold, 38 Ill2d 510, 518, 232 NE2d 702. It was brought out, in the hearing in aggravation and mitigation, that both defendants had criminal records other than their prior murder convictions. The trial judge stated that he was not considering the murder convictions as matters in aggravation in view of the fact that they were pending on appeal. We believe that a sound determination was made by the court concerning the punishment to be imposed, and we will not modify that penalty.

Defendant Armstrong finally contends that he was denied adequate representation by counsel. His specific objections are twofold: first, the Public Defender’s unwarranted delay in proceeding to trial deprived him of his right to a speedy trial; second, the Public Defender who represented him at trial did not have sufficient time to prepare his case adequately.

Armstrong was arrested on April 19, 1966. The trial on the murder indictment commenced on September 12, 1966, and the instant trial began on November 2, 1967. The instant record is replete with motions for continuance, some requested by the prosecution and others by defense counsel. Armstrong himself delayed the proceedings on several occasions by moving for substitution of judges and appointment of private counsel. It is also worthy of note that he did not make any objections to the actions of his attorney, nor did he complain of the delay.

Defendant relies on People v. Love, 39 Ill2d 436, 443, 235 NE2d 819, for the proposition that “delay before trial may be so prolonged that prejudice will be presumed.” The court there goes on to state at page 443:

However, in a case where it is not clear that the right to a speedy trial was denied, the fact whether the accused was or was not in fact prejudiced through delay must be importantly considered in deciding that the delay was reasonable or unreasonable.

Defendant has made no showing or claim that prejudice resulted to him by the delay in this case. Under the circumstances, we cannot say that “prejudice will be presumed,” and, absent any showing of prejudice, we believe that defendant’s right to a speedy trial and right to due process have not been violated.

Defendant Armstrong also claims that the Public Defender did not adequately represent him at the trial. There is nothing to indicate that the Public Defender’s performance showed a lack of preparation which could have affected the outcome of the case. On the contrary, a review of the record indicates that he conducted a well-prepared and thorough defense, considering the factual circumstances of the case. We find that defendant was not prejudiced in his representation by the Public Defender and that he was not denied effective assistance of counsel.

The judgment is affirmed as to both defendants.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


text:
    Chicago Park District, a Municipal Corporation, Plaintiff-Appellee, v. David B. Altman, Defendant-Appellant.
    Gen. No. 53,745.
    First District, Fourth Division.
    July 31, 1970.
    Rehearing denied September 2, 1970.

      Sidney S. Altman, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago, and Neil F. Hartigan, General Attorney, Chicago Park District, of Chicago (Marvin E. Aspen, Head of Appeals and Review Division, Assistant Corporation Counsel, and Arthur N. Hamilton, Assistant General Attorney of Chicago Park District, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

After a bench trial, defendant was found guilty and fined $10 for violating section 27 of chapter 17 of the Code of the Chicago Park District, a curfew ordinance. The complaint, filed by Detective Thomas Fuller of the Chicago Police Department, stated that the violation occurred when defendant remained in Lincoln Park on or about August 27, 1968, between the prohibited hours of 11:0Q p. m. and 4:00 a. m., namely, at 3:30 a. m.

Detective Fuller testified that on August 26, 1968, at 3:30 a. m., he observed defendant walking north through the south ball field in Lincoln Park. He stopped defendant and informed him that no one was permitted in the park after 11:00 p. m. Three times he requested that defendant leave the park, and each time defendant refused.

Defendant was presented with an opportunity to cross-examine the officer and speak in his own behalf. He testified that he “didn’t know the park had been closed”; that when he was stopped and told to move on, he asked “what was wrong”; that the police were yelling at him and again said “move on”; that he started to move when “someone else” said something and he kept asking what was wrong.

Defendant initially contends that the ordinance under which he was convicted constitutes an invalid exercise of police power. He argues that parks are dedicated to the use of the public and that individuals cannot legally be denied access to them. However, authority to establish rules and regulations for public parks existed in a board of commissioners as early as 1869. 1 Priv L Ill 360 (1869). There was also a statute referring specifically to Lincoln Park which authorized the passage of “such ordinances as [the board of commissioners] may deem necessary for the regulation, use and government of the park.” 1 Priv L Ill 375 (1869). At present, the Chicago Park District is “vested with all powers heretofore vested in park districts . . . whose authority is abrogated” by the current statute. Ill Rev Stats 1967, c 105, § 333.7. This statute also provides that the commissioners of the Chicago Park District may establish “all needful rules and regulations for the government and protection of parks . . . and provide penalties not exceeding $200.00 . . . .” Ill Rev Stats 1967, c 105, § 333.7-02.

The instant ordinance was enacted in conformance with the statutory authority, and provides:

No person shall be or remain in any part of any park which is fenced in or provided with gates, between the closing of the gates at night and their reopening on the following day; nor shall any person be or remain in any park not fenced in or provided with gates, between the hours of 11 o’clock p. m. and 4 o’clock a. m. on the following day, except that persons and vehicles may pass through such parks without stopping, on the most direct walk or driveway leading from their point of entrance to the exit nearest to their point of destination.

Chicago Park District Code, § 17-27.

We believe that the regulation limiting use of the parks between 11:00 p. m. and 4:00 a. m. is a reasonable exercise of the Park District’s powers. In reaching this decision, we adhere to the statement that courts are “reluctant to declare regulations, as contained in ordinances of municipal corporations, invalid because of their claimed unreasonableness.” Smutny v. Irving Park Dist., 269 Ill App 544, 552. Further, we recognize that there is a presumption in favor of the validity of an existing ordinance. Troy v. Village of Forest Park, 318 Ill 340, 343, 149 NE 281.

Defendant has been unsuccessful in his attempt to demonstrate that this closure is merely “technical” or that it arbitrarily deprives him of his right to use the park. Here, the interests of safety and public welfare are sufficient objectives to warrant closing public parks during the five-hour nighttime period. We believe that the deprivation of defendant’s uncontrolled liberty, by limiting his absolute use of the park, is minimal compared to the desirable public safety and welfare objectives served by this ordinance.

Defendant also contends that a favorable portion of the ordinance was “suppressed” at trial. He refers to the fact that the ordinance does permit limited use of the park during the curfew hours through a provision whereby an individual may pass through the park using the most direct “walk or driveway leading from their point of entrance to the exit nearest to their point of destination.” The evidence establishes that this exception was inapplicable, as defendant was not proceeding “on the most direct walk or driveway” from his point of entry to his destination, but was arrested on the ball field in south Lincoln Park. The burden rested upon defendant to establish that he came within the exception, and this he failed to do. City of Chicago v. Westphalen, 95 Ill App2d 381, 337-338, 238 NE2d 225. It also appears from the record that there was no “suppression” of this provision of the ordinance since none of the ordinance was read in court and need not have been. Nor was there any need for the ordinance to have been quoted in its entirety in the complaint. Furthermore, this defense was not raised in defendant’s post-trial motion and is therefore waived. People v. Irwin, 32 Ill2d 441, 443-445, 207 NE2d 76; People v. Nelson, 41 Ill2d 364, 365-366, 243 NE2d 225.

On oral argument, defendant relied largely on the case of Hague v. Committee for Industrial Organization, 307 US 496. We do not consider that decision pertinent here, as it was concerned with the rights of free speech and assembly which are not involved in the instant case.

Finally, defendant contends that he was convicted of violating an ordinance of the City of Chicago while charged with violation of the Park District Code, and that the variance requires reversal. We believe that defendant has misconstrued the effect of the trial court’s order. At the conclusion of the trial, the court orally stated: “On the Park District Ordinance violation there will be a finding of guilty.” As reflected in the common-law record, it appears that defendant was found guilty of “a violation of the ordinance described in the complaint.” The complaint explicitly mentioned the pertinent section of the Park District Code. While the record order does refer later to “violation of City ordinance described in the complaint,” we find this minor typographical discrepancy to be harmless error. In addition, defendant did not raise this issue in his written post-trial motion before the trial court, and we need not consider it in this appeal as it is deemed waived. People v. Irwin, supra; People v. Nelson, supra.

Accordingly, the judgment is affirmed.

Affirmed.

STAMOS, P. J. and DRUCKER, J., concur.


text:
    Hartford Accident and Indemnity Company, a Corporation, Plaintiff-Appellant, v. Frank Holada and Albie Holada, Defendants-Appellees.
    Gen. No. 53,827.
    First District, Fourth Division.
    July 31, 1970.

      Frank Glazer, of Chicago (John W. Purney, of counsel) , for appellant.

      Richard F. Gallagher, Russell H. Petrak, Gallagher & Petrak, of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff brought this declaratory judgment action for construction of a policy of automobile insurance issued by plaintiff to defendant Frank Holada. The prayer of the complaint was that the court determine that plaintiff owed no coverage to defendants under the provisions of the policy applicable to uninsured motorists. On defendants’ motion, the trial court dismissed the cause of action, and plaintiff appeals.

For purposes of this review, the facts are to be taken from the pleadings. On November 23, 1963, defendant Albie Holada, wife of the named insured, Frank Holada, was crossing the street near Kedzie Avenue and 82nd Street when she was struck and injured by a motor scooter operated by one Richard Christ, who was uninsured as to liability. On November 22, 1965, defendants filed a lawsuit against Christ who filed an answer and the suit is still pending. On November 14, 1966, defendants filed a demand for arbitration with the American Arbitration Association naming the instant plaintiff as respondent. On December 30, 1966, plaintiff filed this action.

The pertinent paragraphs of the insurance policy read:

Section III — Protection Against Uninsured Motorists
1. Coverage D — Uninsured Motorists (Damages for Bodily Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company or, if they fail to agree, by arbitration. (Emphasis supplied.)
No judgment against any person or organization alleged to be legally responsible for the bodily injury shall be conclusive, as between the insured and the company, of the issues of liability of such person or organization or of the amount of damage to which the insured is legally entitled unless such judgment is entered pursuant to an action prosecuted by the insured with the written consent of the company. (Emphasis supplied.)
2. Definitions: The definitions under Section I, except the definition of “insured,” apply to Section III, and under Section III:
“insured” means:
(a) the named insured and any relative;
“uninsured automobile” includes a trailer of any type and means:
(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder or
(b) a hit-and-run automobile;
but the term “uninsured automobile” shall not include :
(1) an insured automobile or an automobile furnished for the regular use of the named insured or a relative,
(2) an automobile or trailer owned or operated by a self-insurer within the meaning of any motor vehicle financial responsibility law, motor carrier law or any similar law,
(3) an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing,
(4) a land motor vehicle or trailer if operated on rails or crawler-treads or while located for use as a residence or premises and not as a vehicle, or
(5) a farm type tractor or equipment designed for use principally off public roads, except while actually upon public roads.

Plaintiff contends that a proper interpretation of the above language with respect to an “uninsured automobile” would exclude a motor scooter. It cites a number of cases from other states in which an “automobile” is held to be a four-wheeled vehicle, and not to include a motorcycle or motor scooter. E. g., Mittelsteadt v. Bovee, 9 Wis2d 44, 100 NW2d 376; Paupst v. McKendry, 187 Pa Super 646, 145 A2d 725; Westerhausen v. Allied Mutual Ins. Co., 258 Iowa 974, 140 NW2d 719; Beeler v. Pennsylvania Threshermen and Farm Ins. Co., 48 Tenn App 370, 346 SW2d 457.

Defendants consider these cases irrelevant, and so do we. It can be assumed that the term “automobile” does not include a motor scooter. However, the real issue in this case does not turn on construction of that word as used in the policy, but, rather, upon the statute which requires a policy to afford protection against uninsured motorists. We refer to section 143a of the Illinois Insurance Code (Ill Rev Stats 1963, c 73, § 755a) which, at the time in question, provided in pertinent part:

Uninsured or hit-and-run motor vehicle coverage.
On and after the effective date of this amende tory Act of 1963, no policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7-203 of the “Illinois Motor Vehicle Law,” approved July 11, 1957, as heretofore and hereafter amended, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom, .... (Emphasis supplied.)

The Insurance Code does not contain a definition of the term “motor vehicle,” but we take note of that statute’s incorporation by reference of a provision in the Illinois Motor Vehicle Law. For this reason, as well as on general principles, we consider it appropriate to look to the latter Act for such a definition. There, we find the following:

§ 1-133. Motor vehicle
Every vehicle which is propelled otherwise than by muscular power, including but not limited to motorcycles, motor-driven cycles, pole trailers, reconstructed vehicles, road tractors, school busses, semitrailers, special mobile equipment, specially constructed vehicles, trackless trailer coaches, trailers, trucks, truck tractors. . . .
§ 1-134. Motorcycle
Every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor.
§ 1-135. Motor-driven cycle
Every motorcycle, including every motor scooter, with a motor which produces not to exceed 5 horsepower, and every bicycle with motor attached.

Ill Rev Stats 1963, c 95%, §§ 1-133, 1-134, 1-135.

Even in the absence of the above statutory definitions, we consider it beyond argument that a motor scooter is a motor vehicle, and plaintiff has directed us to no contrary authority. Consequently, we are presented with a situation in which the statute requires coverage in relation to uninsured motor vehicles, but the policy in question (according to plaintiff’s argument) furnishes coverage in relation to a more limited category of uninsured automobiles.

The Insurance Code contemplates just such a question and supplies the answer. Section 143 authorizes the Director of Insurance to require the filing of all policy forms with him so that he may order the discontinuance of any forms which he finds to be in violation of the Code. The section then states that nothing therein contained shall require a company such as plaintiff to obtain prior approval of its forms, nor in any way affect the legality of any policy which may have been issued in violation of the Code, “but such policies shall be subject to the provisions of section (Emphasis supplied.) Ill Rev Stats 1968, c 73, §755(2).

Section 442 reads:

Validation of Illegally Issued Policies
Any contract or policy of insurance . . . issued in violation of any section of this Code requiring certain provisions to be inserted therein . . . shall nevertheless be held valid but shall be construed in accordance with, the requirements of the section that the said policy, application, endorsement or rider violates, and when any provision in such contract, application, endorsement or rider is in conflict with any provision of this Code, the rights, and obligations of the company thereunder shall not be less favorable to the holder of the contract and the beneficiary or annuitant thereunder than is required by the provisions of this Code applicable thereto.

Ill Rev Stats 1963, c 73, § 1054.

Without reference to this statute, the court reached the same result in Konrad v. Hartford Accident & Indemnity Co., 11 Ill App2d 503, 514, 137 NE2d 855 where it was stated:

The statutory omnibus clause, in any event, must be, under the circumstances here, considered as voluntarily adopted by the insurer and written into this policy, and if there be any real differences between that and the similar clause stated in the policy, which we doubt, the statutory omnibus clause must control.

See also ILP, Insurance, § 156.

As to plaintiff’s primary contention, therefore, we conclude that a motor scooter must be considered as included in the policy protection against uninsured motorists.

Plaintiff also argues that defendants’ demand for arbitration was not timely since it was filed more than two years after the occurrence — the statutory period of limitation for the filing of personal injury actions. Ill Rev Stats 1963, e 83, § 15. In addition to Section III, paragraph 1 of the policy (quoted above) which provides for arbitration as to whether the insured is “legally entitled” to recover damages from an uninsured motorist, the subject is also treated in Section III, paragraph 6 of the policy:

Arbitration: If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this Section, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Section. (Emphasis supplied.)

There are valid answers to plaintiff’s contention. First, it is to be noted that, despite numerous time limits set forth in various parts of the policy, there is no limit stated for the filing of a demand for arbitration by either party. It is only if the claimant and the company do not agree, that resort will be had to arbitration, and we conclude from this policy language that the company itself did not wish to be bound by any statute of limitations (other than the ten-year limitation for contract actions) in working out a settlement before proceeding with arbitration.

Further, the second subparagraph of Section III, paragraph 1 (quoted above) contemplates the possibility that both liability and damages might be determined through litigation to judgment against the uninsured motorist. We take notice of the fact that such a procedure would take much longer than the appropriate limitation for the filing of suit in most cases.

Plaintiff cites Country Mut. Ins. Co. v. Nat. Bank of Decatur, 109 Ill App2d 133, 248 NE2d 299, but that case is distinguishable here. In Country Mutual, the claims against the uninsured motorist were for wrongful deaths under the statute establishing such actions. Ill Rev Stats 1967, c 70, §§ 1 and 2. Arbitration was not demanded until after the time for commencing a wrongful death action had expired without the filing of suit. The court set aside the arbitration award, holding that at the time of making demand therefor, the insured was not “legally entitled” to recover damages from the uninsured motorist. The court explained its reason for reaching this conclusion, saying at page 139:

The Illinois courts consistently have held that the right of action for wrongful death is wholly statutory and that the provision in the statute creating the right that requires the action to be brought within the specified time is a condition attached to the right to sue and is not merely a statute of limitations. Hartray v. Chicago Rys., 290 Ill 85, 124 NE 849 (1919). This is unlike a general statute of limitations which may serve as a defeme to an action which a defendant may interpose or waive as he sees fit, but it is a condition of the statute of any right to liability whatsoever. (Emphasis supplied.)

In our case, suit for personal injuries was filed within the statute of limitations for such an action (two years) so it was still an open question as to whether defendants were “legally entitled” to recover damages from the uninsured motorist. Moreover, in the nature of a true statute of limitations, such as the one for personal injuries involved in this case, a defense based thereon must be affirmatively raised to be successful, and, if not so raised, the insured could still be “legally entitled” even though his lawsuit were filed after the running of the statute.

We conclude that the judgment of dismissal should be vacated and the cause remanded with directions to enter judgment in favor of defendants, finding that they are entitled to coverage under the uninsured motorist provisions of the policy, and to enter a further order directing the parties to proceed with arbitration.

Judgment vacated and cause remanded with directions.

STAMOS, P. J. and DRUCKER, J., concur.