author: STOUDER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Clifford D. Howard, Defendant-Appellant.
    Gen. No. 70-43.
    Third District.
    November 4, 1970.
    William T. Phares, of Rock Island, for appellant.
    James N. De Wulf, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   STOUDER, J.

A jury found defendant, Clifford Howard, guilty of robbery and a sentence of from two to seven years in the penitentiary was imposed in the Circuit Court of Rock Island County. The only question raised on this appeal is the propriety of giving IPI — Criminal, 3.17 (Accomplice Testimony Instruction). A detailed account of the facts and circumstances is unnecessary to consider the error urged. The principal evidence offered by the State was the testimony of a filling station attendant. He described the circumstances under which he had been robbed and identified the defendant Clifford Howard, together with Billy Ray Howard and Thomas Jerry Burch, as the three persons who committed the offense. All three were charged with the offense of robbery, but prior to the trial of defendant Clifford Howard, Billy Ray Howard and Thomas Jerry Burch had confessed the commission of the offense and had been convicted thereof pursuant to their guilty pleas.

On the trial of defendant in this case, Billy Ray Howard and Thomas Jerry Burch were called as witnesses by defendant. Each testified that although the defendant was with them in a car at the scene of the robbery, he was drunk at the time. According to their testimony, the defendant had not joined in the plan for the robbery, had not participated therein, did not know that the robbery was taking place, and did not share in the proceeds of the robbery.

At the request of the State and over objections of defendant, IPI Criminal Instruction 3.17 was given. It provides, “An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. The testimony of an accomplice witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.” It is the theory of the State and adopted by the trial court that Billy Ray Howard and Thomas Jerry Burch were accomplices and, therefore, the jury was properly instructed to view their testimony with suspicion. No Illinois authority has been called to our attention dealing with this precise question, the State relying on People v. Touhy, 361 Ill 332, 197 NE 849, and the defendant relying on the general principles regarding accomplice testimony and cases from other jurisdictions.

Initially, it should be observed both parties agree the instruction is properly given when an accomplice testifying in behalf of the State implicates the defendant. This might be considered the usual case in which accomplice testimony is presented. That this is the situation contemplated by the drafters of the instruction is indicated by their reference to such cases as People v. Johnson, 317 Ill 430, 148 NE 255.

The reasons for viewing the testimony of an accomplice with suspicion and caution is amply discussed in Hoyt v. People, 140 Ill 588, 30 NE 315, and People v. Smith, 342 Ill 600, 174 NE 828, and cases discussed therein. The general basis for the rule is the unique relationship between the prosecution and an accomplice. From the relationship there may be a strong potential motivation for an accomplice to seek, expect or hope for favorable treatment by the prosecution if his testimony favors the position of the State. Contrarywise, a witness who may be a self-confessed accomplice who exonerates rather than implicates the defendant is risking disfavor by the prosecution and the same reasons for discrediting his testimony do not exist.

In jurisdictions which have considered this question it has been deemed erroneous to instruct that the testimony of an accomplice should be discredited when such testimony exonerates a defendant. Joseph v. State, 34 Tex Crim 466, 30 SW 1067; Hazzard v. State, 111 Tex Crim 539, 15 SW2d 638; Burns v. State, 123 Tex Crim 213, 57 SW2d 836; People v. O’Brien, 96 Cal 171, 31 P 45; People v. Melone, 71 Cal App2d 291, 162 P2d 505; People v. Hartung, 101 Cal App2d 292, 225 P2d 614, and State of Missouri v. Reeder (Mo), 395 SW2d 209, and State of New Jersey v. Anderson, 104 NJ Super 18, 248 A2d 438. See also CJS, p 564, § 1227. The general rule appears to be that the accomplice instruction is properly given only in those cases where an accomplice implicates the defendant in the commission of the offense. For example, in Hazzard v. State, supra, the Court held that an instruction ought not to have been given, even though the witness testified on behalf of the State. In People v. Diaz, 19 NY2d 547, 227 NE2d 860, the Court held that the accomplice instruction should have been given when so requested by a defendant where the accomplice, a codefendant, confessed the offense and implicated defendant.

The only case relied upon by the State is People v. Touhy, 361 Ill 332, 197 NE 849, which suggests that the testimony of an accomplice should be viewed in the same manner, whether offered on behalf of the State or the defendant. We do not believe that the Touhy case is of general application where the testimony of an accomplice exonerates a defendant. The policy underlying the accomplice instruction is not discussed in Touhy and there was accomplice testimony introduced both by the State and the defendant. The accomplice testifying on behalf of defendant had not confessed his guilt and consequently, the reasons for discrediting his testimony were not so apparent. However, the principal limitation of the opinion in Touhy is the Court’s initial premise that it would consider only the very narrow objections to the instruction made by the defendant at the time the instruction was tendered. A complete examination of the subject was not considered by the Court.

In our view, there is no reason for giving any accomplice instruction where the testimony of the accomplice fails to implicate the defendant.' ■ The inappropriateness of giving such an instruction is further demonstrated by the definition of accomplice included in the pattern instruction quoted above. The instruction defines an accomplice witness as “. . . one who testifies that he was involved in the commission of a crime with the defendant . . . .” The so called accomplices did not so testify, and the effect of the instruction could only have been confusing and prejudicial.

Not only was the giving of the instruction erroneous, but also prejudicial. The judicial comment by way of instruction tended to unfairly discredit the principal evidence favoring defendant. The State’s insistence on the giving of the instruction indicates the importance and significance of the accomplice testimony.

For the foregoing reasons, the judgment of the Circuit Court of Rock Island County is reversed and the cause is remanded with directions that defendant be granted a new trial.

Reversed and remanded with directions.

RYAN, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: TRAPP, P. J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Abe Rice, Defendant-Appellant.
    Gen. No. 10,962.
    Fourth District.
    January 23, 1969.
    John Gambill, of Rantoul, for appellant.

      John J. Bresee, State’s Attorney, of Urbana, for appellee.
   TRAPP, P. J.

Defendant appeals his conviction following a jury trial upon an indictment for forgery. He was sentenced for a term of 8 to 14 years.

At issue is whether the failure to place the defendant on trial within 120 days from the date taken into custody, as required by chapter 38, section 103-5, Ill Rev Stats 1965, resulted from a delay “occasioned by the defendant.”

Defendant was arrested on November 18,1966, and was indicted on December 20, 1966, following a preliminary hearing. The record shows that the arraignment set for December 28, 1966, was not consummated. On February 23, 1967, the case was set for trial on March 13, 1967.

Much of the factual background was set out at length in our opinion in People v. Rice, 96 Ill App2d 253, 238 NE2d 266 (4th Dist 1968), wherein this court held that the trial court erred in finding one Bracy, a lawyer, in contempt of court, when he did not appear on the trial date, March 13, 1967. This court determined that the fact that Bracy, an attorney practicing in Chicago, had appeared for the defendant at a preliminary hearing and in a proceeding to reduce bail did not constitute him an attorney of record in the matter of the subsequent indictment of the defendant where Bracy had not entered his appearance at arraignment or otherwise. It was considered a significant factor that there had been no arraignment of the defendant as of that trial date.

The report of proceedings shows that on March 13, 1967, the case was called by the court without a jury. Bracy did not appear. Following a colloquy among the court, the State’s Attorney and the defendant, there were one or more attempts to reach Bracy by telephone. Thereafter the court ordered a citation to issue against Bracy returnable March 16. During this time, the State’s Attorney advised the court that on March 9, Bracy had stated that he was not an attorney representing defendant. The State’s Attorney also suggested that the defendant be arraigned.

Bracy appeared on March 16 in response to the citation, and protested that he was not in contumacious contempt in that in his experience he would be attorney of record for defendant only following an appearance after the indictment of the defendant. The report of proceedings discloses that in a telephone call on March 14, Bracy advised the court that he was not an attorney for the defendant.

Despite the fact that Bracy was held in contempt for failure to appear, the report of proceedings shows that the court stated, “I take it your position still is that you are not attorney for Abe Rice.” Thereafter the court granted Bracy’s motion for leave to withdraw. The court thereupon appointed the public defender to represent the defendant. At this time defendant inquired of the court whether or not he was to be bound over to the grand jury, and was advised that an indictment had already been returned.

During this portion of the proceedings the State’s Attorney advised the court that the statutory period of 120 days would expire on March 18. The court stated that the jury would not be available on March 17 and there is basis in the record for concluding that the jury had been excused from reporting until March 20.

On March 17, defendant appeared in court with the public defender and the State’s Attorney. The record recites that he stated to the court that he did not want an attorney. When the court suggested appointing other counsel, defendant replied that he did not want any attorney. Thereupon defendant was furnished a copy of the indictment and a list of witnesses. He pleaded not guilty and stated to the court that he was ready to go to trial. The court vacated the appointment of the public defender and set the case for trial on Monday, March 20, which was the second day following the expiration date of the 120-day period.

On March 20 defendant appeared and made an oral motion for discharge under chapter 38, section 103-5, Ill Rev Stats 1965. The motion was denied. Defendant then asked to procure his own counsel and moved to vacate the trial date. On March 27 defendant advised that he had not obtained counsel and the court indicated that it would appoint counsel for the defendant. The court on this date made a finding of an understanding waiver of counsel and continued the case for trial on April 10. On the latter date the defendant requested appointment of counsel other than the public defender and the present counsel was appointed. The latter made a written motion for discharge pursuant to the statute. This motion was denied.

Prior to the trial, defendant renewed his motions for discharge and tendered evidence that he had been in jail since November 18, 1966, and that he had neither made a motion for continuance nor authorized one to be made in his behalf. The People v. Jones, 33 Ill2d 357, 211 NE2d 261 (1965); People v. Terlikowski, 83 Ill App2d 307, 227 NE2d 521 (3rd Dist 1967).

The essential argument of the State’s Attorney upon the issue is that the delay was occasioned by the failure of “defendant’s attorney” to appear on March 13. This assumption was found wanting in our opinion in People v. Rice, 96 Ill App2d 253, 238 NE2d 266 (4th Dist 1968). That opinion considered the statutes concerning the function of an arraignment in establishing the proper representation of a defendant.

While the State’s Attorney argues that the notice of the arraignment for December 28, 1966, was ignored by the attorney, Bracy, such circumstance actually is a form of advice that Bracy was not serving as attorney of record. The fact that the State’s Attorney mailed a notice of a trial date to an attorney who had not entered an appearance at an arraignment or otherwise following indictment is hardly a basis for charging a delay to the defendant. The record also shows that a copy of the same notice was also sent to another Chicago attorney. He does not otherwise appear in the proceedings.

Again, the State’s Attorney was advised on the 9th of March that Bracy was not serving as an attorney in the case, and such fact was reported to the trial judge on March 10. Nothing intervenes in the record until the trial date, March 13, when the want of representation was demonstrated.

We are impressed with the issue of constitutional due process in the sense of fundamental fairness in procedure in this case. The People v. Finn, 17 Ill2d 614, 162 NE2d 354 (1959). Such is exemplified in the proceedings when on March 16, the State’s Attorney suggested that the case be set for trial on March 17 so that defendant could ask for a continuance, as it was assumed that he would be required to do. At such time defendant had not been arraigned.

In this court, the State’s Attorney argues that the motion by defendant to proceed without counsel on March 17 following his arraignment on that date was a ploy designed to create delay and to embarrass the court, and was not in the expression of a bona fide desire to proceed to trial. Suffice it to say that on that date, appointment of the public defender was vacated by the court, and subsequently on March 27, the court made a further finding of a knowing waiver of counsel.

The Supreme Court has repeatedly stated that the statute at issue is designed to implement and insure rights arising under the Constitution. The People v. Moriarity, 33 Ill2d 606, 213 NE2d 516 (1966); The People v. Bryarly, 23 Ill2d 313, 178 NE2d 326 (1961). The role of the prosecutor as an architect of the proceeding should comport with constitutional and legislative objectives. Brady v. Maryland, 373 US 83, 10 L Ed2d 215, 219, 83 S Ct 1194 (1963). Practices in prosecution which result in compelling, or seeking to compel, the waiver of constitutional and legislative requirements is unfair in the administration of justice.

It seems clear that on and after March 13 the State was not prepared to proceed to jury trial until March 20 for the reason that the jury had been excused. Our Supreme Court has held that the statutory period is not extended by the fact that the last day of such period falls on a Saturday, as was the fact in this case. The People v. Shaw, 24 Ill2d 219, 181 NE2d 120 (1962).

In The People v. House, 10 Ill2d 556, 141 NE2d 12 (1957), and The People v. Wyatt, 24 Ill2d 151, 180 NE2d 478 (1962), the court at arraignment suggested a continuance or made such continuance on its own motion. These cases hold that such delay in prosecution was not chargeable to the accused. The criterion or test established by the Supreme Court is whether the act of the defendant in fact contributed to cause the delay, or created the necessity for the postponement of the trial. The People v. Fosdick, 36 Ill2d 524, 224 NE2d 242 (1967); The People v. Bagato, 27 Ill2d 165, 188 NE2d 716 (1963); The People v. Iasello, 410 Ill 252, 102 NE2d 138 (1951).

We have examined the facts of this case in the light of the language of the Supreme Court in The People v. Denham, 33 Ill2d 599, 213 NE2d 539 (1966). In that case private counsel failed to appear at trial. The judgment was actually affirmed by reason of the fact that trial was within four months of the date of incarceration as distinguished from the contention that the newer 120-day statute governed. In considering the contention of the defendant that he had been deprived of the effective representation of counsel, it was noted that at arraignment defendant asserted that he had private counsel, and when the public defender was appointed defendant renewed his assertion and did not cooperate with the public defender in the preparation of the case. Private counsel failed to appear for trial which was apparently set for the last day of the four-month period. When the court appointed counsel, defendant refused to permit the attorney’s motion for continuance, and thereafter claimed a constitutional defect, i. e., a denial of effective representation.

The facts in this case are distinguished in that on February 23, 1967, when the case was set for trial, the defendant had made no assertion of private counsel at arraignment, for there had been neither an arraignment nor a waiver thereof. Ill Rev Stats 1965, c 38, § 113-6. While the court appointed counsel on March 16, such appointment was vacated at defendant’s request on March 17 and it does not appear that such appointment did in fact cause delay. The People v. Iasello, 410 Ill 252, 102 NE2d 138 (1951); The People v. Shaw, 24 Ill2d 219, 181 NE2d 120 (1962). Here the case was set to a date beyond the statutory period upon the court’s own motion.

The record discloses no motion by defendant for continuance from the date of the belated arraignment on March 17, 1967, and no acquiescence in the continuance of the case until a date later than the expiration of the statutory period. The State’s Attorney and the court have the means and authority to provide orderly procedure, including arraignment of the accused in apt time for a trial to be held under the provisions of the statute. Such was not done in this case. People v. Hatchett, 82 Ill App2d 40, 226 NE2d 97 (5th Dist 1967).

The case is reversed and remanded with instructions to discharge the defendant. The People v. Gray, 33 Ill2d 160, 210 NE2d 486 (1965).

Reversed and remanded with directions.

SMITH and CRAVEN, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Martin, Defendant-Appellant.
    Gen. No. 51,999.
    First District, Third Division.
    November 7, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a trial without a jury the defendant was found guilty of carrying a concealed weapon and was sentenced to serve a term of one to three years in the penitentiary. On appeal he contends that his conviction was based on evidence introduced in violation of his privilege against self-incrimination, that his attorney stipulated away his basic constitutional rights, that he was denied a fair trial, and that he was inadequately represented by his attorney. The facts follow.

Prior to his trial the defendant made a motion to suppress as evidence the gun which was taken from him at the time of his arrest. At the hearing on that motion Police Officer Cecil Young testified that on January 1, .1966, he investigated a disturbance at 6555 Cottage Grove Avenue in Chicago and was told by those at the scene that defendant was the man who had caused the disturbance. He saw defendant walking away at a fast pace and ordered him to stop. Defendant refused and Young observed him reach into his coat and discard a revolver as he walked away. Defendant’s back was toward Young the entire time and Young did not testify expressly that the weapon was concealed from view. Young recovered the revolver and placed defendant under arrest. Defendant testified at the hearing that he had just purchased the revolver, that it was empty and that he did not know he was doing anything wrong in carrying it. He admitted that the gun was under his coat and that it was not visible.

The motion to suppress was denied and the court proceeded to try the case. The State’s Attorney and counsel for defendant stipulated that the testimony at the trial would be the same as that previously heard on the motion to suppress. The only additional evidence offered by the State was the revolver and a holster taken from defendant at the time of his arrest. Defendant then moved for a finding of not guilty. The court denied the motion on the express ground that there was a “judicial confession” from defendant. The defendant took the stand and testified that he did not intend to conceal the gun, that he made no attempt to conceal it, that he did hot wrap his coat tightly around himself in order to conceal it, and that he threw the gun away because he did not want any trouble..

Defendant contends that his conviction was based on evidence introduced in violation of his privilege against self-incrimination. It is axiomatic that concealment is a necessary element of the offense charged. Ill Rev Stats, c 38, § 24-1(a)(4) (1967). People v. Lake, 332 Ill 617, 164 NE 167; People v. Beason, 342 Ill App 621, 97 NE2d 603. Officer Young testified at the hearing to suppress that he saw the defendant discard a gun while walking away from him, but he did not testify that the gun was concealed from view. The only evidence which establishes that the weapon was concealed is the defendant’s own admission made while testifying- in support of his motion to suppress.

At the conclusion of the State’s case the defendant moved for a finding of not guilty. The court denied the motion stating “I have a judicial confession that he had the gun,” having in mind obviously the admission made at the motion to suppress.

When a defendant testifies in support-of a motion to suppress evidence, he waives the privilege against self-incrimination only so far as the proceeding testing the legality of the search is concerned. Such testimony cannot be used by the State to supply necessary elements in proof of the crime charged. People v. Williams, 25 Ill2d 562, 185 NE2d 686. In that case the defendant had been indicted for the unlawful possession of narcotics. His attorney agreed to allow the trial court to hear evidence on a motion to suppress and the issue of guilt simultaneously. On the basis of Williams’ admission that the white powder removed from her brassiere was a narcotic drug, the court found her guilty. The Supreme Court reversed, notwithstanding the fact that no objection had been made at the trial and even though it was by defense counsel’s stipulation that the court was allowed to consider the defendant’s admission on the question of guilt.

It was error for the trial court in the instant case to have considered, for the purpose of proving defendant’s guilt, an admission made by him at the hearing on his motion to suppress. Without the defendant’s admission that the gun was not visible, there was no evidence to establish that the weapon was concealed. Since that was an essential element of the crime, the judgment of the trial court must be reversed. The other points raised need not be considered.

Judgment reversed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elvio Allen, Defendant-Appellant.
    (No. 70-23;
    Second District
    October 27, 1970.

      E. Roger Horsky, of Defender Project, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Gerald W. LaFayette, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant was convicted of both unlawful possession and unlawful sale of heroin in a non jury trial, and was sentenced to 10 to 15 years in the penitentiary.

His appeal challenged the indictment for failure to allege the name of the purported buyer, the time and place of the offense more specifically, and to negative exceptions under the Narcotics Drug Act. (Ill. Rev. Stat. 1967, ch. 38, par. 22—3.) The defendant also claims error in the admission of photographs and urges that he was not proven guilty beyond a reasonable doubt.

We hold that the indictment was sufficiently stated in the language of the statute. (People v. Mills (1968), 40 Ill.2d 4, 11.) The statute creating the offense makes no reference to the purchaser of the drug and his identity is not an element of the crime. It was therefore unnecessary to name the alleged buyer in the indictment. People v. Adams (1970), S. Ct. Docket No. 41446. The defendant was furnished the name of the informer-buyer on his motion so that he could not have been prejudiced in his defense or in his right to later plead double jeopardy. See People v. Petropoulos (1965), 59 Ill.App.2d 298, 327; affirmed in The People v. Petropoulos (1966), 34 Ill.2d 179, 181; Ill. Rev. Stat. 1967, ch. 38, par. 111—3.

The indictment alleged that the possession and sale took place “on the 30th day of April, 1969, in the County of Winnebago, State of Illinois” Alleging the date of the offense and the county in which it was alleged to have occurred was a sufficient statement of time and place to support the indictment and a more specific marking of hour and location could have been secured by a motion for a bill of particulars. (People v. Blanchett (1965), 33 Ill.2d 527, 533; People v. Stevenson (1969), 107 Ill.App.2d 441, 445.) Defendant does not question this proposition but argues that the fact that defendant was not arrested until 7 days after the sale, coupled with the alleged vagueness of the indictment, deprived him of the opportunity to adequately defend against the charge. However, no particular prejudice has been shown in the record resulting from the interval between arrest and charge and the mere conclusion of prejudice in general terms raised for the first time on appeal presents no constitutional issue. A delay of one week between the date of the charged offense and arrest (made on the date the indictment was returned) is not unreasonable within terms of effective investigation and prosecution of narcotics cases. See United States v. Napue (7 CA-1968), 401 F.2d 107, 117.

Defendant has cited United States v. Weaver (4 CA-1967), 384 F.2d 879 and United States v. Evans (7CA-1967), 385 F.2d 824 for the rule that any delay in arrest is forbidden in absence of a record which discloses a “valid police purpose” for the delay. We note that in Weaver a 16 day delay in executing a warrant on one whose residential address was not definitely known was held not to be unreasonable; and in Evans a 10% month delay between the offense and the issuance of the complaint was similarly held to be reasonable under circumstances which indicated that defendant had extensive sources of narcotics in Mexico and California. Neither case, however, enunciates the rule that any delay must be affirmatively justified, and both acknowledge that time for reasonable investigatory activity does not result in denial of due process to a defendant.

It was also unnecessary to negative the statutory exceptions in the indictment. (Ill. Rev. Stat. 1967, ch. 38, par. 22—44; People v. Yeargain (1954), 3 Ill.2d 25, 28.) People v. Greer (1960), 20 Ill.2d 370 cited by the defendant, does not support his position, inasmuch as the indictment in this case, as in Greer, alleged that the offense was in violation of the act, distinguishing People v. Barnes (1925), 314 Ill. 140, 143.

Upon an examination of the whole record we conclude that the defendant was proven guilty beyond a reasonable doubt and had a fair trial free of any substantial error. Without detailing the evidence, the case is essentially one involving a “controlled buy” of narcotics by an addict-informer. The alleged transaction was observed from some distance by police officers in a special van who used binoculars and took photographs. Defendant argues, and we agree, that the testimony of an addict-informer is inherently suspect, and warrants close scrutiny. However, where such testimony, as here, is corroborated by other clear evidence, there is the necessary proof of defendant’s guilt. The People v. Greer, 20 Ill.2d 370, supra, 373, 374; People v. West (1965), 60 Ill.App.2d 477 (Abst.)

We have noted discrepancies in the testimony as to the distance of the pohce van from the transaction. The transaction was alleged to have occurred near the northeast corner of the 1000 block in North Main Street. An officer not present in the police van described its location in the same block, an evident error as this would have placed the observer in the van adjacent to the place of the aEeged sale. The officers in the van both placed its location in the 900 block but differed in their estimates of the distance from the defendant and the informer, one testifying that they were approximately 75-85 feet away, the other, about 200 feet. However, both officers in the van testified to the exchange of the money and a “shiny object” and to the receipt from the informer, who had been kept continuously under observation, of two tinfoil packets, shown by the evidence to be heroin. While the quality of the photographs, taken with a telephoto lens, was poor we believe that they both illustrate and to some extent corroborate the testimony of the witnesses and were therefore properly admitted in the court’s exercise of sound discretion. People v. Speck (1968), 41 Ill.2d 177, 202, 203; People v. Walcher (1969), 42 Ill.2d 159, 164.

The defendant testified that he was merely borrowing money from the informer and denied the sale, so that essentially the issue of the weight to be given to the contrary testimony of the informer and to the evidence offered in corroboration was for the trial court to determine. We cannot say that there is a reasonable doubt of defendant’s gufft which would justify reversal. The People v. Lobb (1959), 17 Ill.2d 287, 294.

The judgment below is affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J. concur.


text:
      In re Estate of Harry L. Brown, Deceased, Appellee.—(Petition of Harbro, Inc., and Carey Grain Corporation, Petitioners-Appellants.)
    (No. 69-172;
    Second District
    October 27, 1970.

      Rehearing denied December 3, 1970.

      Benjamin J. Schultz, of Chicago, Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellants.
    Gottlieb & Schwartz, of Chicago, (Charles D. Stein, and Mark S. Lieberman, of counsel,) for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

This appeal is from a decree wherein the bench denied a petition filed in the probate proceedings for specific performance and general relief against the executors based upon an agreement by decedent to sell his shares in petitioner companies in event of his death. For the reasons set forth herein, we are of the opinion that the court below was in error and that the petition should have been granted so as to effectuate the declared intention of the parties to the agreement.

In 1957 the decedent was the sole owner of two Illinois corporations, Harbro, Inc. and Carey Grain Corporation, having paid $89,000 for all of the corporate shares. For convenience of reference, these corporations will herein be called “Harbro” and “Carey”, and will be collectively referred to as “the Companies”. In August, 1959, Irwin Cole and his sister, Sylvia Floun Schwartz (both herein called “Cole”) purchased 50% of tiie decedent’s interest in each of the Companies for the price of $94,500, with the decedent retaining a 50% interest therein. As a result of that transaction, decedent received more money than he had theretofore invested in the Companies, which at that time had a deficit of approximately $90,000.

Simultaneously with the stock sale, two agreements were entered into. One of these was an agreement by which the decedent and Cole agreed to vote the shares of the Companies to elect four members to the boards of directors of each, two to be designated by decedent “or his personal representative” and two to be designated by Cole “or his personal representative”. The other agreement was entitled “Stock Purchase Agreement” (described in greater detail below). The Stock Purchase Agreement, which is very comprehensive, was prepared by decedent’s attorneys. The respective boards of directors of the Companies authorized the execution of the Stock Purchase Agreement, and further amended the respective by-laws to provide that the vote of three directors was required for corporate action.

Section 7 of the Stock Purchase Agreement is entitled “Options on Death of a Stockholder,” and provides in part as follows:

“Upon the death of either Cole or Brown (hereinafter in this Agreement sometimes called the ‘First Deceased Stockholder’), the Companies or their designees shall, for ninety (90) days from and after the date of his death, have the right and option to purchase all of his Stock from his estate. * * * If such option shall be exercised as aforesaid, the First Deceased Stockholder’s estate shall, within thirty (30) days after receipt of the aforesaid notice, sell all of said Stock to the purchaser at the price and in the manner hereinafter set forth. * * *
(a) The price to be paid for the Stock shall be the greater of
(i) the book value thereof (as determined under the provisions of Section 11) as of the date of death of the First Deceased Stockholder; or
(ii) an amount set forth in a certificate of agreed value to be executed periodically by Brown and Cole and filed with the Companies.”

Section 9 of the Stock Purchase Agreement provided that the shareholders “and the Companies hereby agree to take all other action, required or advisable to effectuate the terms and provisions of this agreement.”

Section 11(a) of the Stock Purchase Agreement directs that book value shall be “determined by the regularly employed auditors of the Companies on the basis of standard accounting principles applicable to the business of the Companies”. This section directs that “the book value of the Stock as determined by the auditors, shall be binding and conclusive on all persons”.

Decedent died December 20, 1968. One of the executors of his estate is Stanley A. Kaplan, a partner of the law firm retained by decedent to prepare the Stock Purchase Agreement. On February 6, 1969, the day decedent’s will was admitted to probate and the executors were appointed, the Companies served notice on the executors of their exercise of the option to purchase decedent’s shares, pay the book value thereof, and comply with all the remaining provisions of the Stock Purchase Agreement. The Companies offered to pay the executors $22,586 on the basis, as the evidence later showed, that Harbro had a book value of $60,621, while Carey had a negative book value of $15,449, and that the executors were entitled to receive 50% of the combined net book value of the Companies. The executors refused to accept this offer, and the Companies filed a petition seeking an order directing tire executors to comply with the terms and conditions of the Stock Purchase Agreement. Cole and Schwartz were added as additional parties to the proceeding.

At the conclusion of the hearing the trial court denied the Companies’ petition for the following reasons: (1) the Companies’ exercise of the option over the signature of Mr. Cole, its Vice-President and Acting President, was of no effect since it was not properly authorized or ratified by the boards of directors; (2) the amount which the Companies should have offered was $30,310.50, and not $22,586, since the book value of Carey cannot be less than zero; (3) since there is a great disparity between the book and market value of the Companies’ shares, a court of equity should not in good conscience grant specific performance; and (4) Section 6 of the Illinois Business Corporation Act prohibits a corporation from purchasing its own shares except out of earned surplus, which did not exist in the case of the Companies.

The Companies thereupon perfected this appeal. We consider the judgment below under appropriate headings:

The Companies’ Option was Properly Exercised.

After decedent’s death the Companies each had only three directors, and one of these, Mr. Kaplan, was an executor of decedent’s estate. The remaining two directors, active at a meeting not attended by Mr. Kaplan, approved the Companies’ exercise of the option. The executors contend that this was ineffectual since the by-laws were amended (on the same date of the Stock Purchase Agreement) to provide that the vote of three directors was necessary for corporate action. We disagree with this contention.

By the very nature of the option provisions of the Stock Purchase Agreement, the option could never be exercised if the renewed approval of three directors were necessary. The option, which runs in favor of the Companies, was obviously intended for their benefit; the Companies would exercise it only where the decedent’s stock was worth more than its book value or the value periodically certified to by the parties. If the affirmative action of three directors were required, the option would be a nullity since one of the directors would be deceased and another would be his representative on the board. Naturally, the latter would not vote to have the decedent’s shares sold for less than their true value (indeed, Mr. Kaplan refused to so vote in the instant case). This would leave only two directors who could conceivably desire to see the Companies exercise their option in any case where it would be advantageous for the Companies to do so.

When the by-laws were amended to require the vote of three directors for general corporate action, at the same time that the directors specifically authorized the Stock Purchase Agreement, which contained the option, the parties necessarily contemplated that an additional vote of the directors would be unnecessary to exercise the option.

In any event, the purpose of the by-law amendment was to require that the majority of the board agree on a question before corporate action could be taken. After the vacancy created by decedent’s death, the two directors who voted to approve the exercise of the option constituted a majority of the board.

It is no Defense that the Option Price of the Shares is Less than their Fair Market Value.

The court below determined that because of the disparity between the option price and the fair market value of the shares, enforcement of the option terms would be “clearly inequitable and oppressive”. Specific performance was accordingly denied, although the court did not hold the contract to be void.

To be sure, a court of equity may refuse to grant specific performance of “unconscionable, oppressive, or iniquitous contracts” (Palmer v. Chamberlain (5 CA-1951), 191 F.2d 532, 540), or where the evidence “shows circumstances which appeal to the good conscience of the chancellor”. (Neuberg v. Clute (1955), 6 Ill.2d 58, 64.) We do not question the rationale of these decisions; we simply point out that the criteria therein recited for denying specific performance do not exist where the only charge of inequity is based upon a change in value or other circumstances.

The Illinois courts have consistently held that where a contract has been fairly entered into in good faith, and without fraud, concealment or overreaching, it may be specifically enforced in spite of a subsequent change in circumstances. Thus, in In Re Estate of Frayser (1948), 401 Ill. 364, the trial court had specifically enforced an option in a lease for the sale of the real estate at a fixed price. The lessor’s heirs appealed, and urged among other things, that the option was unfair and unreasonable because the property had greatly appreciated from the date of the lease to the date the option was exercised. The Supreme Court disposed of this defense, saying at Pages 371-72:

“The courts can have no concern with the wisdom or folly of a contract, made for a consideration and without fraud, where the parties are competent to contract and enter into same fairly and understandingly. Here the parties were sui juris and there is no charge of fraud or overreaching. The object of courts of equity, as well as courts of law, is the enforcement of contracts rather than their evasion, and where a valid contract exists for a sale of land a court of equity will enforce it as a matter of right where it was fairly and understandingly entered into and no circumstances of oppression and fraud appear. (Miedema v. Wormhoudt, 288 Ill. 537.) The mere fact the value of the property has increased or diminished since the contract was executed ordinarily will not warrant a refusal to carry out its terms, in the absence of circumstances indicating fraud or bad faith. Anderson v. Anderson, 251 Ill. 415.”

In Brubaker v. Hatjimanolis (1949), 404 Ill. 342, the defendant argued that to compel him to specifically perform a contract for the sale of real estate was highly inequitable because the land had materially increased in value during the five years since the contract was executed. The court made it clear that whether a contract was fair or works an unconscionable hardship is generally determined with reference to the time when made, adding at Page 348:

“The mere fact there has been a decrease or increase in the value of the involved property since the contract was made will not of itself warrant a refusal to compel specific performance, where circumstances indicating fraud or bad faith are absent.” Citing authorities.

In the instant case, there is no allegation or showing that the Stock Purchase Agreement was procured through fraud, unfairness or overreaching, or that it was somehow unfair at the time it was executed. To the contrary, the decedent had owned and operated the Companies for the two years prior to the agreement, and must be presumed to have been at least as familiar with their value as was Mr. Cole and his sister. When it was agreed that the survivor could purchase the share of the first to die on the basis of book value, Cole was perhaps more vulnerable than decedent. Decedent had by then recouped his investment in the Companies by selling 50% of his shares to Cole for $94,500. Had Cole died shortly after making this investment, when the Companies still had a $90,000 deficit, the Companies could have acquired his shares for nothing, notwithstanding that he previously would have paid $94,500 for the same shares.

Certainly the parties contemplated that the value of the Companies might change from time to time, and that book value could become an unrealistic yardstick. It was for that reason that they provided in their agreement that the book value test could be superseded if the parties subsequently agreed to use a different value. As the trial court specifically found, no such subsequent agreement was ever reached.

We here note that the amount actually offered the executors by the Companies was $22,586, but that in their petition they offered to pay such sum as required under the Stock Purchase Agreement. In arriving at this figure, the Companies subtracted Careys negative book value of $15,449 from Harbro’s book value of $60,621, and offered 50% of the difference since 50% of the outstanding shares were being purchased. The trial court ruled, for purposes of this computation, that Carey could not have a book value of less than zero, and that the proper option price (assuming the option was lawfully exercised) should have been $30,-310.50. We believe this ruling was correct.

Section 6 of the Business Corporation Act does not Prevent the Companies’ Exercise of the Option.

It is clear from the record in this case that neither of the Companies had earned surplus at the time they sought to exercise their option to purchase the decedent’s shares. In reliance on Section 6 of The Illinois Business Corporation Act (Ill. Rev. Stat. 1967, ch. 32, par. 157.6), the trial court held that this lack of earned surplus prevented the Companies from repurchasing their own shares.

It has long been the law of this State, even before the legislature spoke, that a corporation may not repurchase its shares or otherwise distribute its assets to its shareholders when by so doing its capital structure would be impared to the detriment of its creditors or other shareholders. Olmstead v. Vance & Jones Co. (1902), 196 Ill. 236, 241-42; Fraser v. Ritchie (1881), 8 Ill.App. 554, 557-8; Commercial Nat. Bank v. Burch (1892), 141 Ill. 519, 528.

Under the common law, no clear cut test was formulated to determine when a repurchase of a corporations own shares would violate the rights of creditors or minority shareholders. Therefore, in an effort to create guidelines for the protection of these interests from the actions of the majority shareholders, section 6 was enacted to provide that a corporation may not purchase its own shares when

s * its net assets are less than the sum of its stated capital, its paid-in surplus, any surplus arising from unrealized appreciation in value or revaluation of its assets and any surplus arising from surrender to the corporation of any of its shares, or when by so doing its net assets would be reduced below such sum.”

Although neither this statutory language nor prior decisional law states in so many words that only corporate earnings can be used for the repurchase of shares, section 6 was construed in Precision Extrusions, Inc. v. Stewart (1962), 36 Ill.App.2d 30, as providing that a corporation may use only earned surplus for this purpose. In Precision Extrusions, the court said at page 41:

“The limitations set out in the statute were an attempt to spell out the corporation funds from which such purchase could be made. Section 6 in general provides that the purchase of a corporation’s own shares may be made out of earned surplus, and in the notes on the section, in 1 Illinois Business Corporation Act Annotated, sec. 6, p. 51 (2d ed), it is said: ‘Because of the difficulty in framing an adequate definition of earned surplus, the rule was stated indirectly, forbidding purchases ‘out of stated capital and various types of surplus other than earned surplus.’ In a critical survey of the Illinois Business Corporation Act by Henry Winthrop Ballantime in 1 U of Chicago L Rev, p 365, it is stated: ‘The Illinois draftsmen, however, have avoided the use of the term ‘earned surplus’ on account of the difficulty of framing any statutory definition of this accounting term, and have deemed it best to back into the concept by a process of elimination * *

We have some doubt that the provisions of section 6 were intended to apply to circumstances under which no change in the assets of the corporation results from the purchase and creditors cannot suffer, but we note that since the Precision Extrusions decision, it has become accepted doctrine in Illinois that earned surplus is the only fund from which a corporation may repurchase its own shares (except where certain statutory exceptions, not present here, might apply). See e.g., Cate v. Pagel-Clikeman Co., Inc. (1967), 87 Ill.App.2d 65; Alton Banking & Trust Co. v. Luer (1968), 101 Ill.App.2d 18; Overbeck and Teevan, Buy and Sell Agreements (1955), 43 Ill. Bar Journal 264, 268; Rule 10b-5 and Purchase by a Corporation of its own Shares (1966), 61 N.U.L.Rev. 307, 312.

Inasmuch as neither of the Companies had earned surplus when they attempted to exercise the option, we must conclude on the basis of the foregoing that the Companies were not legally permitted to purchase the decedent's shares. We do not believe, however, that this lack of earned surplus affords the defendants in this case an absolute defense.

Here, the parties had entered into a Stock Purchase Agreement, section 9 of which provided as follows:

“The Stockholders hereby agree to vote their Stock in a manner, and they and the Companies hereby agree to take all other action, required or advisable to effectuate the terms and provisions of this agreement fr # # »

Section 9 is significant for the reason that it declares that the parties agree to take all steps necessary to insure that the purpose of the agreement would be fulfilled.

As pointed out above, section 7 of the Stock Purchase Agreement specifically provided that the option to purchase a deceased shareholder’s shares belongs to “the Companies or their designees.” When the Companies sought to exercise their option, the rejection of the executors made no mention of the Companies’ inability under section 6 of The Business Corporation Act. Had they done so, rather than raise this point for the first time as a defense to the petition below, it is entirely possible that the Companies would have named a third party as their “designee” under section 7. Thus, the agreement of the parties might lawfully have been carried out without the prolonged litigation that has ensued. Section 6 of The Business Corporation Act, in our opinion, would provide no defense to the executors upon a showing in the trial court, that the decedent’s shares were being purchased by any third party designated by the Companies. Further, we believe that such a showing could still be timely made in the trial court upon a remandment of the cause. While the petition below did not specifically request such relief, we believe that the pleadings (which include a prayer for general equitable relief) essentially seek the aid of equity to enforce the Stock Purchase Agreement in all of its terms. The specific prayer for the purchase of the stock by the corporation may not be permitted but the evidence does authorize specific performance of the contract in a manner not barred by statute and under conditions which are fair to the parties, recognizing their contractual commitments. Courts of Equity can and should shape remedies to achieve justice under particular facts and circumstances. Wolf v. Lawrence (1916), 276 Ill. 11, 21; Pope v. Speiser (1955), 7 Ill.2d 231, 242, 243; City of Aurora v. Y.M.C.A. (1956), 9 Ill.2d 286, 294, 295.

The cause is, therefore, reversed and remanded with instructions to permit amendments or further pleadings and additional proof, if necessary in the opinion of the trial court, to determine the issues in accordance with this opinion.

Reversed and remanded with directions.

DAVIS, P. J., and ABRAHAMSON, J. concur.

Supplement to Opinion Upon Denial of Petition for Rehearing

The executors have petitioned this court for a rehearing, urging that by our permitting enforcement of the parties’ agreement upon a showing that the decedent’s shares were being purchased by a designee of the Companies, we have advanced a theory not considered by the parties or by the trial court and, in fact, inconsistent with the theory advanced at trial. We are satisfied that the rationale of our opinion was not unfamiliar to the record, and had been considered in the opinion of the trial court as well as in all of the briefs submitted herein.

The contract in question was voluntarily entered into by parties who were totally familiar with its subject matter. By signing it, the decedent agreed that his shares could be purchased for a readily ascertainable price. His executors seek to side-step his agreement. Their reason is that the shares became more valuable than the contract price to which he had agreed, but their excuse is that Section 6 of the Business Corporation Act prohibits the Companies from purchasing these shares in the absence of earned surplus.

In determining whether their excuse for nonperformance is tenable, we observed: (1) the parties expressly agreed “to take all other action, required or advisable to effectuate the terms and provisions of this agreement”; (2) the contract permitted the Companies to designate any third party to purchase the shares; and (3) Mr. Cole and Mrs. Schwartz, the only other shareholders and the potential designess, were not only parties to the contract but, upon motion of the executors, were made parties herein. The Petition for Rehearing, therefore, is not persuasive in suggesting that our opinion requires the bringing in of new parties and a retrial of the case.

The executors maintain that a formal designation should have been made shortly after the decedent’s death, and the designee(s) could have exercised the option within the ninety day period. Yet the executors have argued throughout these proceedings that board action requires the vote of three directors and, as we note in our opinion, it would be naive to believe that the executors’ representative on the board would vote to have someone purchase the decedent’s shares for a price which they claim to be unconscionable.

We reject the executors’ argument that we decided this appeal on a theory not advanced by the Companies and therefore not considered by the executors or by the trial court. In the written opinion of the trial court it was specifically noted that “the corporations in their brief [below] point out two ways * * * to circumvent the restrictions of Section 6. 6 * * The second is by having Cole and Schwartz furnish the money for the repurchase.”

In the Companies’ initial brief to this court, they state the following: “No possible complaint could arise from a payment by Cole for the Brown shares and their surrender to the Companies. By the same token no wrong could occur if Cole used the Companies as his conduit through which to purchase the Brown shares. He could contribute the necessary monies and the transaction would have proceeded in an orderly manner.”

The executors addressed themselves to this argument in their answering brief, noting that the petition for specific performance was filed by the Companies and not by Cole or any designee. (While this is so, we cannot ignore the plain fact that the executors themselves made Cole and Mrs. Schwartz additional parties below.)

Finally, in the Companies’ reply brief we again find the argument that the effect of Section 6 could be avoided if Cole were made “the designee of the Companies” or if Cole personally paid the purchase price. Under the latter method, it was argued, the Companies would not be “purchasing” the shares, even if they thereafter “received” them as Section 6 expressly permits.

Without again passing on these arguments, which we carefully considered in the course of reaching our opinion, we have briefly restated them for the purpose of showing that we did not concoct a theory foreign to the record or to the briefs submitted by all of the parties.

The court in Pope v. Speiser, 7 Ill.2d 231, supra, at p. 243, even in the absence of a prayer for general relief (here present) noted the provisions of the Practice Act (Ill. Rev. Stat. 1967, ch. 110, pars. 33(3), 42(2)) providing for liberal construction of pleadings with a view to doing substantial justice between the parties and approving pleadings which reasonably inform the opposite party of the claim which he is called upon to meet. On this record the adverse party was not prejudiced in the trial by reason of surprise in the presentation of evidence.

As we observed at the conclusion of our opinion, our disposition of this appeal is not only justified by the pleadings, the evidence and the prayer for relief, it is required in order to achieve what we regard to be the only just and equitable result.

Rehearing denied.

       The shareholders at no time certified to the agreed value of the Stock, as provided in Section 7(a)(ii). While there was evidence that the parties orally agreed that decedent would sell his stock to Cole for $100,000, the trial judge held that this did not constitute a de facto certificate of value, notwithstanding that a written agreement was being circulated for signature at the time of Brown’s death. This holding, with which we agree, was not challenged in this appeal.


author: Mr. PRESIDING JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Curliss Dismuke, Defendant-Appellant.
    (No. 70-17;
    Second District
    November 4, 1970.

      Lucas T. Clarkston and Maurice Scott, Jr., of Chicago, and Anthony S. Ingrassia, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Daniel D. Doyle, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DAVIS

delivered the opinion of the court:

The defendant, Curliss Dismuke, was indicted for the crime of rape, waived jury trial and was found guilty by the court. A motion for a new trial was denied, and he was sentenced to serve from ten to fifteen years in the penitentiary. This appeal followed.

The testimony of the complaining witness and her husband related to the following events: On the morning of May 10, 1969, at about 3:15 A.M., they were awakened by the bark of their dog. The husband looked up and saw a person advancing toward their bed, who asked for money. He was given two or three dollars, which the complaining witness took from her clothing. The husband was then led by the intruder to a bathroom where a light was burning, and was asked to, and did, trun off the light. The two then proceeded to the kitchen where a light was burning. The intruder asked the husband to turn off that light, and in so doing, the husband inadvertently switched on the overhead fight in the kitchen. This fight remained on about a half a minute after which time he turned it off at the intruder’s command. During this time, the husband looked directly at the intruder.

The two men then proceeded back toward the bedroom. The intruder then asked the husband to turn on the bathroom fight, which partially illuminated the bedroom. He did so, and thus got another view of the intruder, who then ordered the husband to get back into bed. The intruder then said that he thought he would kill the husband because he was a “cop.” The complaining witness said “no,” and became hysterical; the intruder told her to “shut up.”

The complaining witness and her husband were then ordered to undress, which they did; they were then told to pull down the bed covers, which they did, and the intruder then told the husband to “eat her.” Thereupon, the husband “more or less crawled on the bed.” The intruder remarked, “You’re not doing that right, get up and get back of the bed.” During this time the intruder was standing next to the bed and was closely watching the complaining witness and her husband. Before the husband could rise from the bed, the intruder remarked, “Would you go ahead and fuck her now.” The husband stated that he couldn’t, and the intruder then ordered him to get behind the bed, and pushed the bed up against him so that he could not move.

The intruder then proceeded to rape the complaining witness, all the while holding a gun close to her head. The husband was able to see what was happening in a bedroom mirror. The intruder then led the complaining witness, who was nude, from the bedroom and told the husband not to move or he would kill her. The intruder left the house with her and released her a short distance away. He then fled.

On May 31, after the defendant’s arrest, the complaining witness and her husband were taken to view a police lineup. They both identified the defendant as the intruder, and later made in-court identifications of him.

The defendant testified, and denied that he was the intruder who broke into the home of the complaining witness and raped her. He stated that he was at home from 12:15 A.M. until 8:00 A.M. on the morning in question, and that his home was about one block from that of the complaining witness. His wife testified as an alibi witness on his behalf, and he offered credible witnesses as to his truth and veracity.

On this appeal the defendant contends: (1) that there was insufficient identification evidence to sustain a conviction; (2) that certain evidence regarding the identification of the defendant was improperly admitted; (3) that testimony regarding the defendant’s ownership of the gun was improperly admitted; (4) that the trial judge unduly restricted the defendant’s cross-examination of prosecution witnesses, and in so doing assumed the role of an advocate on behalf of the prosecution; and (5) that the defendant’s reputation for truth and veracity, along with his alibi, was sufficient to raise a reasonable doubt as to his guilt.

With reference to the first two of the defendant’s contentions, he was identified by the complaining witness and her husband at the trial and at a police lineup on May 31, 1970. At the time of the lineup, which took place the day of his arrest and before his indictment, no attorney represented him. At the trial, the complaining witness and her husband testified relative to the lineup, and each of them then identified the defendant. The defendant here contends that the absence of counsel at the lineup, rendered inadmissible the testimony of the complaining witness and her husband regarding the lineup.

This contention is without merit. A pre-indictment lineup has been held by our courts not to be such a critical stage of the proceedings as to entitle the accused to the presence of a counsel. (People v. Palmer (1969), 41 Ill.2d 571, 572, 573, 574.) The testimony regarding this lineup is admissible unless the methods employed by the State were so flagrantly unfair as to deprive the defendant of due process of law. (People v. Palmer, supra 573.) No pretrial motions were made in this case concerning the lineup procedure, and the record does not indicate any conduct detrimental to the defendant in the conduct of the lineup.

Further identification testimony was elicited by the prosecution and admitted over objection of the defense. This testimony concerned conversations, that the complaining witness and her husband had with a police artist, from which a sketch of the defendant was prepared. The sketch itself was clearly inadmissible, and the trial court properly sustained an objection to its introduction. (People v. Turner (1968), 91 Ill.App.2d 436, 444.) However, we do not believe that the testimony regarding the preparation of the drawing improperly influenced the court to accept the identification of the defendant by the complaining witness and her husband.

On the issue of the sufficiency of the identification, the defendant claims that the complaining witness and her husband had not given adequate details in their description of the intruder, and that the discrepancies in their descriptions were such that a reasonable doubt must remain.

The husband of the complaining witness told the investigating police officers, shortly after the incident in question, that the intruder was a Negro, about nineteen or twenty years of age, slim build, 6'8" or 6'9" taU, and had a mustache. The defendant, at the time of the incident, was twenty-six years of age, 5T1" taU, and weighed 145 pounds. At the trial, on redirect examination, the husband of the complaining witness attempted to correct this statement by saying he meant the defendant was 5'8" or 5'9" tall, and had misspoken. Much is made, by the defense, of these discrepancies in the description. These matters go, generally, to the credibility of a witness and the weight to be given to his testimony; such questions are primarily for the trier of fact to decide. People v. Setzke (1961), 22 Ill.2d 582, 586.

The testimony at the trial indicated that both the complaining witness and her husband made a positive identification of the defendant at the police Uneup. During this episode, the intruder was in their residence for a sufficient period of time, and under varying, but sufficient, conditions with reference to visibility, to make such identification possible.

At the time when the husband of the complaining witness and the intruder were in the kitchen, the two men were face to face while the overhead light was on, and when the husband turned the bathroom light on, he further viewed the intruder. Identification evidence of this nature has been held sufficient to sustain a conviction even where, as in this case, the defendant has based his defense on an alibi, which was corroborated by witnesses, as to his whereabouts at the time of the offense. People v. Setzke, supra 586; People v. Jackson (1958), 95 Ill.App.2d 28, 32, 33.

Cases cited by the defendant, such as People v. Cullotta (1965), 32 Ill.2d 505; People v. Kincy (1966), 72 Ill.App.2d 419; and People v. Marshall (1966), 74 Ill.App.2d 483, differ from the case at bar in that either, as in Cullotta, the witness’s identification was based on a fleeting glance, or as in Kincy and Marshall, the witness did not have a chance to, or failed to observe the face of the perpetrator of the offense. Thus, in those cases, the court held that the identification of the defendant was not positive since the witness was not able to remember details either as to facial features or the clothing worn by the alleged offender. In the light of the facts in the case at bar, we believe that the evidence as to the identity of the defendant was sufficient to sustain the conviction. People v. Mack (1962), 25 Ill.2d 416, 421; People v. Nicholson (1965), 55 Ill.App.2d 361, 367.

At the trial, both the complaining witness and her husband testified that the intruder threatened them with a pearl-handled gun. The husband testified that he believed the gun to be an automatic pistol. The State introduced evidence of a firearm’s registration card, bearing the defendant’s signature, showing that he had purchased a .25 caliber automatic pistol on February 10, 1967. The defendant, after being taken to police headquarters at the time of his arrest, denied owning a gun, but later admitted that he had purchased the .25 caliber automatic pistol, which he claimed he had subsequently loaned to his brother. The defendant, however, denied that the gun had a pearl handle, but he made no effort to produce it. He now claims that the evidence relative to the gun, the registration card, and the testimony of the police officer, were prejudicial in that this evidence did not relate to a pearl-handled gun, and the evidence as to any gun or guns other than that identified by the witnesses was improper.

The husband of the complaining witness had identified the gun as an automatic, as opposed to a revolver. The evidence that the defendant had owned an automatic gun was material and proper for consideration. The defendant’s testimony that he did not own a pearl-handled gun was uncorroborated, but his failure to produce the automatic was not substantial proof of the charge against him. However, if there was other relevant evidence against the defendant which indicated his guilt, and he failed to bring in evidence within his control to explain or refute such evidence, his omission to do so was a circumstance which may be considered by the trier of fact. People v. Williams (1968), 40 Ill.2d 522, 529.

Lastly, the defendant contends that the trial court committed reversible error in controlling the examination of the witnesses called by the State with reference to the identification of the defendant. We have examined the record, and note that the defense was permitted to cross-examine the prosecution witnesses very fully. The trial judge was the trier of fact and, as such, was permitted wide discretion in his direction of the conduct of the trial. People v. Palmer (1962), 26 Ill.2d 464, 470.

It is only where the trial judge materially prejudices the defense, by interjecting actions in the case, that we will reverse. People v. Kalec (1961), 22 Ill.2d 505, 512. It appears here that any comments or interjections made by the trial judge were made for the purposes of clarification and to enable the court to understand the issues, and to confine the scope of cross-examination within the permissible limits of the rules of evidence. The trial judge is permitted wider latitude in the conduct of a bench trial than in the conduct of a jury trial. In a bench trial, there is a presumption that the trial judge considered only competent evidence in reaching his decision. (People v. Palmer (1962), 26 Ill.2d 464, 470; People v. Cox (1961), 22 Ill.2d 534, 538.) We do not believe that the court abused its discretion in this case.

The trial judge heard all of the testimony, including that of the defendant relative to his reputation for truth and veracity, and his alibi. On the alibi issue, the trial court was under no obligation to believe the alibi testimony over the positive identification of the defendant by the complaining witness and her husband. (People v. Setzke, supra 586.) It was the function of the trial court to weigh the testimony and determine the credibility of the witnesses. The trial judge had the opportunity to observe the witnesses and hear their testimony, and in absence of strong evidence to the contrary, we will not substitute our evidentiary conclusions for those of the trial court. People v. Mundorf (1968), 97 Ill.App.2d 130, 136.

For the foregoing reason, the conviction of the defendant must be affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy Junior James, Defendant-Appellant.
    (No. 70-26;
    Second District
    November 4, 1970.

      Cannariato, Nicolosi & Pigatti, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (Galyn W. Moehring, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The appellant, Roy Junior James, was jointly indicted with Herdis Sockwell, Jr. and Webster Williams for the offense of rape. The defendants were jointly tried in July, 1969, after they waived their respective rights to trial by jury and all three were found guilty as charged in the indictment. James was sentenced to a term of not less than six or more than twenty years in the penitentiary.

Subsequent to the trial but before sentencing, James moved for a post trial hearing to determine competency pursuant to Section 104—2 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, par. 104—2). The trial judge ordered that James be examined by two psychiatrists and, after he had received their reports, denied the motion. Subsequent motions for a new trial were also denied and this appeal followed.

Sub-paragraph (a) of Section 104-2 provides:

“(a) If before a trial, or after a judgment has been entered but before pronouncement of sentence, or after a death sentence has been imposed but before execution of that sentence, the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant’s competency. If a jury is waived by the defendant, the court shall conduct a hearing to determine the defendant’s competency.”

Paragraph 104—1 defines an incompetent as used in this context as one who is “unable because of a mental condition: (a) To understand the nature and purpose of the proceedings against him; or (b) To assist in his defense; or (c) After a death sentence has been imposed, to understand the nature and purpose of such sentence.”

If facts are brought to the attention of the trial court that raise a bona fide doubt as to the competency of the accused to understand the nature of the charges brought against him or to cooperate with his counsel a jury must be impanelled (unless waived as provided in paragraph 104-2(a)) to determine that question. People v. Thomas, 43 Ill.2d 328, 332; People v. McLain, 37 Ill.2d 173; People v. Burson, 11 Ill.2d 360, 368.

Most of the many reported cases on this issue as could be expected, concern themselves with the existence of the “bona fide doubt” that requires a competency hearing. The appellant here contends that sufficient matter was presented to the trial court to create such a doubt and that the order of a psychiatric examination indicates that, in fact, the trial judge did have a bona fide doubt in his own mind. Under those circumstances, it is argued that the court had no choice but to impanel the jury and conduct the hearing.

Affidavits were filed in support of the motion to the effect that James had been committed to a psychiatric hospital approximately two and one-half years prior to his trial and that defense counsel only learned of that fact after the trial had been concluded. A second affidavit of additional counsel brought into the case after the trial states, incorrectly, that the defendant had been adjudicated incompetent at the earlier hearing. The sister of the defendant also furnished an affidavit that stated that he had been declared incompetent in 1967 but that of his father recites only that James was hospitalized for six to eight weeks in a psychiatric hospital. Three of the four affidavits contain statements that in the opinion of the affiant James is or may be mentally incompetent.

A supplement to the report of proceedings contains the records of the 1967 proceeding. A petition was filed in February, 1967, by James’ mother that alleged he was in need of mental treatment. James was examined by two cotut appointed physicians who were of the opinion that James had no psychosis but needed “mental treatment that could be administered ambutorily”. On February 16, 1967, the court found James to be legally competent but in need of mental treatment and ordered treatment on an outpatient basis. He was conditionally discharged shortly thereafter and completely discharged in August, 1967.

The psychiatric reports prepared in accordance with the order entered in this cause were somewhat dissimilar. Dr. Carl Hamann was of the opinion that James was on the “lower side of normal intelligence” and that with his emotional conflicts he had a “diminished” ability to cooperate with counsel. Dr. J. G. Graybill found James to be mildly retarded but without thought disorder or perceptual distortion. He was of the opinion that James was competent, did understand the nature of the charge? placed against him and was able to cooperate with counsel.

The fact that the defendant was hospitalized in 1967 for psychiatric treatment does not necessarily raise a bona fide doubt as to his competency to understand the nature of the charges against him or cooperate with counsel. (People v. Richeson, 24 Ill.2d 182, 184; Withers v. The People, 23 Ill.2d 131, 134, 135.) The record of that proceeding discloses only that the examining physicians were of the opinion that James was “on his way to becoming an alcoholic addict” and that after his last alcoholic bout he became mentally disturbed. Contrary to the affidavits, the court found in 1967 that James was competent although in need of mental treatment.

The affidavits themselves were of little probative value since they contain only the opinion of the new counsel that James is incompetent and the conclusion of the sister and father that he “may” be incompetent all apparently based on his need for psychiatric treatment in 1967.

In further support of the argument that a bona fide doubt did exist, it is pointed out that James refused to testify at the trial despite the persistent entreaties of his counsel that he so do. Although the record does not, and perhaps cannot, disclose the reason that James chose to remain mute it is significant that he expressed concern over a public trial at the time of his arrest. In his argument on the motion for a competency hearing, the defense counsel stated that he did not suspect that his client had any mental problems until after the trial when he learned of his commitment in 1967. James had answered his questions and cooperated in the preparation for trial but absolutely refused to testify in his own behalf. After he learned of his prior trouble, counsel was of the opinion that the refusal was a result of a fundamental inability to understand the nature of the charge against him. There is nothing in the record, however, that would in any way indicate that James was incompetent and his decision to stand mute would not create a bona fide doubt as to his ability to cooperate with counsel. (People v. Sims, 34 IH.2d 206, 207, 208.)

The fact that the trial judge ordered a psychiatric examination of the defendant does not convince us that there was a bona fide doubt in his mind as to the mental condition of the defendant. Indeed he stated at the time he ordered the examination that “nothing occurred during the course of the trial and the motions I heard that led me to believe that there was any question as to his competency.” The fact that professional, psychiatric advice is sought by the trial court does not of itself indicate that a bona fide doubt exists as to the mental condition of the accused. (People v. Sims, 34 Ill.2d 206, 210; People v. Robinson, 22 Ill.2d 162, 168.) The test is whether all the facts presented to the court are sufficient to raise the bona fide doubt. (People v. Lego, 32 Ill.2d 76, 78.) We do not feel that they did so in this case and therefore the trial judge was not required to conduct a competency hearing.

The defendant further contends that the trial court committed reversible error when it refused to grant his motion for severance and that he was denied the right to appear at a hearing to suppress the confessions of his co-defendants.

Ordinarily, the question of severance of jointly indicted defendants is left to the sound discretion of the trial court. (People v. Ross, 41 Ill.2d 445, 461.) A severance should only be granted where the defenses are antagonistic or inconsistent. (People v. McCasle, 35 Ill.2d 552, 556.) There is nothing in the record nor is any argument offered to show that James’ defense was inconsistent or antagonistic to that offered by his co-defendants. Furthermore, there is nothing to show that James was denied the right to be present at the hearing to suppress confessions and since the confessions were admitted only against the other defendants, the contention is without merit.

The judgment and sentence imposed by the trial court will be affirmed for the reasons stated.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James M. Behning, Defendant-Appellant.
    (No. 70-30;
    Second District
    November 4, 1970.

      Morton Zwick, Director of Defender Project, of Chicago, (Thomas Holum, of Defender Project, of Elgin, of counsel,) for appellant.
    William Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, Assistant State’s Attorney, of Elgin, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, James H. Behning, was convicted of the offense of forgery in violation of Section 17—3 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1961, ch. 38, par. 17—3) and sentenced to a term of two to six years in the state penitentiary. On appeal the defendant contends that he should have been discharged pursuant to Section 103-5 of Chapter 38 since he was not brought to trial within 120 days from the date he was taken into custody and that he was not proved guilty of the charge beyond a reasonable doubt since the evidence showed he was an uncontrollable alcoholic and was so intoxicated on the day of the offense that he could not have formed the specific intent necessary to commit the crime.

Behning was first arrested in Elgin on April 29, 1969, because of a disturbance he caused on Villa Street in that city. He was taken to the station by the Elgin police where it was learned that he was also wanted on a warrant issued in Dundee for forgery. However, Behning was surrendered to authorities from Cook County where he was apparently convicted on other charges. On July 7, 1969, Behning was indicted by the grand jury of Kane County for a forgery committed in Elgin on February 19, 1969. His trial on this charge commenced August 28, 1969, 121 days after April 29, the date of his first arrest. It is agreed that he was in continual custody after that date.

Section 103-5 of Chapter 38 (Ill. Rev. Stat. 1967, ch. 38, par. 103—5) entitled SPEEDY TRIAL, is the statutory implementation of the right to a speedy public trial guaranteed by Sec. 9 of Article II of the Constitution of Illinois 1870, and states in sub-paragraph (a) as follows:

“Every Person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104-2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.”

The 120-day period within which the accused must be tiled begins to run on the date he is taken into custody “in connection with the subsequently prosecuted charges.” (People v. Jones, 33 Ill.2d 357, 360; People v. Nettles, 107 Ill.App.2d 143, 150.) In his brief, the defendant states that he was taken into custody on April 29 to be questioned in regard to the “instant” charge and that the 120-day period began to run on that date. The record, however, does not support that statement.

At a pre-trial hearing, Detective Siete of the Elgin Police Department testified that Behning was first taken into custody on April 29 because of the disturbance on Villa Street and that it was then learned that there was “a warrant out for him for forgery from Dundee.” The forgery for which Behning was convicted occurred in Elgin. There is nothing in the record to indicate that Behning was ever formally charged with any forgeries prior to July 7 when eight separate indictments were returned against him for forgery. Although the absence of a formal charge is not determinative there is nothing to show that Behning was ever in custody prior to July 7 in connection with the charge for which he was ultimately convicted. It is incumbent on the accused to show that he is eligible for discharge under the Act and the “* # * record must establish each such jurisdictional fact.” People v. Walton, 110 Ill.App.2d 115, 117; People v. Nettles, supra.

Even if the record did establish that Behning was taken into custody on April 29 in connection with this particular charge, we do not feel that he would be eligible for discharge. Behning was indicted on July 7 and arraigned on July 11. At the time of his arraignment, Behning presented to the Court nine pre-trial motions and a petition for a writ of habeas corpus. The court appointed the public defender to represent Behning and handed the papers to the deputy public defender who was present in open court. Although the matter was continued to August 18, presumably for a hearing on the motions, the record shows that a hearing was held on August 11 to consider the petition for a writ. At the conclusion of that hearing the petition was denied.

On August 18, the defendant presented a motion to dismiss his attorney and requested that the court appoint a “bar association attorney”. This was done and the matter continued to August 25 for trial or for any motions that the new defense attorney might care to present. On August 25, Behnings counsel appeared and requested a list of witnesses and filed a motion to suppress Behnings confession. The matter was continued until August 27 for a hearing on the motion over the objection of defense counsel who argued that he was prepared to proceed on his motion and with the trial. On August 27, the defendant moved to dismiss the pending charges on the grounds that more than 120 days had elapsed since his arrest. The court denied that motion and proceeded to conduct a lengthy hearing on the motion to suppress. At the conclusion of the hearing, the motion was denied and the cause continued to the next morning, August 28, for trial. On August 28, a jury was chosen and trial commenced.

If Behning had been arrested on this particular charge on April 29, the trial would have commenced on the 121st day since in the computation of the period the first day is excluded and the last day included. In addition to the mere passage of time, however, the defendant must show that the delay in the trial was not caused by his actions in order to be entitled to discharge. (People v. Shaw, 24 Ill.2d 219, 221; People v. Morris, 3 Ill.2d 437, 442.) In the case of People v. Walker, 100 Ill.App.2d 282, 286, the First District considered a situation where the defendant was arrested on August 12, 1965; indicted on September 15; arraigned on September 22 and tried after the expiration of 120 days of continuous incarceration. The case had been assigned for trial but before a trial date was set the defendant moved for, and was granted, a substitution of judges. The court concluded that, under the circumstances of that case, the delay was caused by the defendants motion for substitution and in its discussion of Section 103-5(a), quoted above, stated:

“We think it implicit in the phraseology of this statute that, as a matter of reciprocal obligation, an accused seeking its guarantee must himself be held to some measure of restraint in exercising certain of the pretrial tactical motions available to him. We speak in more specific terms of defendant’s motion for a substitution of judges, albeit made at the earliest opportunity, and its adverse effect upon the orderly administrative process necessarily a part of bringing his cause to trial.”

We feel that the defendant’s motion made on August 18 to dismiss the, public defender and have the court appoint new counsel inevitably contributed to the delay in the trial of his case. Although the matter was continued to August 25 for trial, a date within the 120-day limits, it was with the sensible provision of the court that the new counsel could then present any pretrial motions that he might feel were necessary. In fact, essential motions were filed and extensively considered. Each case, of course, must be examined on its own facts but our examination of this record can leave us with no conclusion but that the delay was caused, at least partially, by the actions of the defendant.

The defendant further contends that the uncontradicted evidence showed that he was so intoxicated on the date the alleged forgery took place that he could not have formed the necessary specific intent to commit the crime of forgery, i.e., the intent to defraud. Voluntary intoxication is not a defense to a crime unless such intoxication “negatives the existence of a mental state which is an element of the offense” (Ill. Rev. Stat. 1967, ch. 38, par. 6—3; People v. Walcher, 42 Ill.2d 159, 163.) Ordinarily, the existence of such a degree of intoxication is a question of fact to be determined on the basis of all the evidence introduced before the jury. People v. Jones, 99 Ill.App.2d 364, 370; People v. Myers, 94 Ill.App.2d 340, 346.

On February 19, 1969, Behning and his common law wife, Marlene Peace, went to Roth Pharmacy in Elgin. Miss Peace had previously fiUed in a blank check on a business account payable to the order of James Behning in the amount of $55.00 and signed it as Chris Blueberg. Behning endorsed the check and the couple presented it to Clinton Munch, a pharmacist, and requested that he cash it. At Munch’s request, Behning added his address to his endorsement. Munch testified that most of his conversation at the time the check was cashed was with Miss Peace and that Behning was “like a second party”. Munch stated that Behning appeared “normal” and, although he seemed “detached” and gazed around the store, his words were understandable and he did nothing to lead him to believe he was intoxicated.

Marlene Peace, who was granted immunity, testified that Behning was drunk on February 19 and had consumed two fifths of vodka, his normal daily portion. Although he was able to sign his name and walk around the drug store, Miss Peace said that anyone could see he was intoxicated. She also testified that Behning was drunk each day for about nine months before February 19.

Behning himself testified that he was a chronic alcoholic and did not remember where he was or what he did on February 19 because he had been intoxicated. He knew he was with Marlene Peace and that he drank two quarts of vodka on that day because he was with her and drank that amount every day.

Although there was convincing evidence that Behning was, in fact, an alcoholic, the specific issue was the degree of his intoxication on February 19 and whether he had the requisite mental state to commit a forgery. The fact that he was an alcoholic did not exempt him from responsibility for his criminal acts unless the evidence showed that he was so intoxicated as to “negative the existence” of the mental state necessary to commit the crime. The issue was one for the jury to resolve and since it appears that they were properly instructed we see no reason to disturb their judgment in that respect.

For the reasons stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.