text:
    (No. 49422.
    THE NATIONAL BANK OF BLOOMINGTON, Adm’r, et al., Appellees, v. NORFOLK & WESTERN RAILWAY COMPANY et al., Appellants.

      Opinion filed Oct. 6, 1978.

    Rehearing denied Dec. 1, 1978.

      Costigan & Wollrab, of Bloomington, for appellants.
    Jerome Mirza, of Bloomington, for appellees.
    Leonard M. Ring, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
    Francis D. Morrissey and Edward J. Zulkey, of Baker & McKenzie, of Chicago, for amici curiae Atchison, Topeka & Santa Fe Ry. Co. et al.

   MR. JUSTICE MORAN

delivered the opinion of the court:

On January 5, 1970, in Bloomington, an auto operated by the decedent, Ray Weldon Groves, was struck by a freight train operated by Norfolk & Western Railway Company. Groves died seven days later as a result of the collision. While a four-count amended complaint was filed in the circuit court of McLean County, against additional defendants, we are here concerned only with counts I, II and IV, which went to the jury, and with defendants Norfolk & Western Railway Company and Wabash Railroad Company (hereafter referred to in the singular as defendant).

Counts I and IV were brought by the administrator of decedent’s estate, the National Bank of Bloomington (plaintiff-administrator), and count II was brought by the decedent’s widow, Marie Booe Groves, individually (plaintiff-wife).

Count I charged that defendant’s negligent failure to provide adequate warning devices for motor vehicles at the instant railroad crossing and its negligent violation of rules of General Order No. 138 of the Illinois Commerce Commission (ICC) caused the wrongful death of decedent. Plaintiff-administrator sought pecuniary damages under the Wrongful Death Act (Ill. Rev. Stat. 1969, ch. 70, pars. 1,2). Count II incorporated the allegations of count I, and alleged that, as a result of defendant’s negligence, plaintiff-wife became liable under the family expense act (Ill. Rev. Stat. 1969, ch. 68, par. 15) for certain medical, hospital and funeral expenses for which she sought compensatory damages. Count IV charged defendant with the wilful violation of General Order No. 138, Rule 205 of the ICC, by its failure to keep its right-of-way clear of obstructions. Plaintiff-administrator sought both actual and punitive damages under the Public Utilities Act (Ill. Rev. Stat. 1969, ch. Ill 2/3, par. 77). While one paragraph of count IV recites that the action was brought under both the Public Utilities Act and the Wrongful Death Act, the pleadings in the body of the count allege violation of the Public Utilities Act.

The jury’s verdict awarded $20,000 pecuniary damages under count I for the wrongful death of the decedent; $4,348.60 compensatory damages under count II for medical, funeral and related expenses; and $300,000 punitive damages under count IV for the wilful violation of Rule 205 of General Order No. 138 of the ICC. The circuit court entered judgment for the defendant, notwithstanding the verdict, as to the $300,000 punitive damages. Plaintiff-administrator appealed the judgment n.o.v. that vacated the award for punitive damages under count IV. Defendant appealed from the two judgments entered against it under counts I and II.

The appellate court affirmed the judgments entered under counts I and II, but a majority of that court reversed the circuit court’s judgment for defendant, n.o.v., on the question of punitive damages and reinstated the award of $300,000. (46 Ill. App. 3d 757.) The appellate court unanimously issued a certificate of importance to this court in this case and in a companion case, Churchill v. Norfolk & Western Ry. Co. (1977), 46 Ill. App. 3d 781, aff'd (1978), 73 Ill. 2d 127.

Defendant claims that the decedent was guilty of contributory negligence as a matter of law; that section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) does not create a cause of action in a personal representative for compensatory or punitive damages in a death case; that defendant did not violate Rule 205 and was not, therefore, guilty of wilful misconduct which would entitle plaintiff-administrator to recover punitive damages under section 73 of the Public Utilities Act; and that the award of $300,000 punitive damages was excessive.

Defendant’s assertion that the decedent was contributorially negligent rests upon the following evidentiary facts. The decedent was 7 3 years old, a careful driver, and in good health on the day of the collision. He had traversed the railroad crossing in question on numerous occasions so that he was aware that trees, shrubbery and a house obstructed clear visibility of the railroad tracks to the north when approaching the crossing from the east. Site-line measurements to the north along the railroad tracks, taken by defendant from various points east of the crossing, indicated that from zero to 10 feet to the east of the crossing, one can see a quarter of a mile down the tracks; from 20 feet, one can see 450 feet; from 30 feet, one can see only 110 feet; from 40 feet, one can see only 85 feet; from 50 feet, one can see 80 feet; and from 100 feet, one can see 60 feet. The crossing itself was not equipped with any warning device other than the traditional crossbuck sign, stating “Railroad Crossing. ”

The decedent was traveling west at 20 to 35 miles per hour on a street which had a posted speed limit of 30 miles per hour. The only person who testified that he saw the decedent’s vehicle immediately before impact was a trainman seated on the east side of the moving train. The trainman testified that he observed the car for less than a total of one second: a split second before the car disappeared behind the obstructing house and a split second when it emerged on the other side. The train was moving at a speed of 22 to 35 miles per hour as it approached the crossing. Its whistle had been blowing from the time the train was approximately 1,500 feet north of the crossing. Its light was on and its bell was ringing. The windows of the train and the windows of decedent’s vehicle were closed due to the cold weather. Snow was on the ground and the pavement was slippery. Evidence indicated that neither the train nor the decedent braked prior to impact and that the decedent did not see or hear the train approaching although he did look both ways. Evidence further established that the front of the decedent’s vehicle and the front of the train collided.

In answer to a special interrogatory, the jury specifically found that the decedent was not guilty of contributory negligence. Under the familiar Pedrick standard, the finding in this case may be overturned only if all the evidence, when viewed in its aspect most favorable to plaintiffs, so overwhelmingly favors defendant that no finding of the decedent’s freedom from contributory negligence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.

It is well established that railroad crossings are dangerous, and that in approaching them a person is required to diligently use the senses of sight and hearing and to exercise a degree of care commensurate with the known danger. (Tucker v. New York, Chicago & St. Louis R.R. Co. (1957), 12 Ill. 2d 532, 535; Moudy v. New York, Chicago & St. Louis R.R. Co. (1944), 385 Ill. 446, 452.) The law casts disfavor on the person who claims that upon approaching an unobstructed crossing he looked but did not see an oncoming train. However, the law readily acknowledges that if a crossing is obstructed, a person, diligently using the senses of sight and hearing and exercising the ordinary care expected under the circumstances, might be excused for failing to perceive that the train was approaching. (Tucker v. New York, Chicago & St. Louis R.R. Co. (1957), 12 Ill. 2d 532, 536.) A person is not required/, to come to a complete stop before traversing an obstructed crossing, nor is he required to keep a continuousTookout in the direction from which a train may be coming. (Chicago & Alton R.R. Co. v. Sanders (1894), 55 Ill. App. 87, 91, aff’d (1895), 154 Ill. 531; Baker v. Norfolk & Western Ry. Co. (1970), 120 Ill. App. 2d 296, 310, quoting Hughes v. Wabash R.R. Co. (1950), 342 Ill. App. 159, 167.) Generally, in those cases in which a crossing is obscured, whether a plaintiff exercised due care and whether the obstruction prevented the plaintiff from perceiving an oncoming train are questions of fact for the jury and not matters of law which would require the court to intervene. Humbert v. Lowden (1944), 385 Ill. 437, 445; Gray v. Terminal Railroad Association (1962), 37 Ill. App. 2d 376, 379.

In the case at bar, it is conceded that the crossing was obstructed by trees, shrubbery and a house. Evidence indicated that the decedent looked both ways, but that he did not see or hear the train approaching from the north. The trainman, who was on the train and looking in the direction of the decedent’s vehicle, testified that he saw the decedent’s car for a total of less than one second. We conclude, when viewing this and all the other evidence in a light most favorable to plaintiffs, that the jury could reasonably have found the decedent was exercising care for his own safety. The jury’s special finding that the decedent was not contributorially negligent must, therefore, remain undisturbed.

Defendant next contends that section 73 of the Public Utilities Act does not create a cause of action in a personal representative for compensatory or punitive damages in a death case. Defendant’s contention actually combines two distinct propositions: first, that section 73 of the Public Utilities Act does not create a cause of action in a personal representative for compensatory and punitive damages for the wrongful death of decedent, and, second, that the Act does not create a cause of action in a personal representative for compensatory and punitive damages for the predeath injuries to the decedent. We need not address the first proposition since, in count I, plaintiff-administrator recovered damages for the death of decedent under the Wrongful Death Act, and since, in count IV, plaintiff-administrator does not seek damages for wrongful death. As to the second proposition, however, we hold that plaintiff-administrator may recover compensatory and punitive damages under the Public Utilities Act on the basis of the injuries decedent sustained prior to his death.

Plaintiff-administrator alleged in count IV that the decedent received extremely serious injuries which, before he died, required his hospitalization and the administration of medical services. Evidence at trial established that the decedent was conscious but in a state of shock during the seven days between his injury and his death. The jury was instructed on the questions to be resolved under count IV: Was the decedent injured and killed as a result of defendant’s violation of the ICC rule? Was defendant’s violation wilful? Was the decedent free from contributory wilful and wanton conduct? Did the decedent sustain damages to the extent claimed? On this count, the court further instructed the jury that the plaintiff-administrator had the burden of proving that the decedent was free from contributory wilful and wanton conduct, that defendant wilfully violated the ICC rule and that the wilful violation was a proximate cause of the decedent’s injuries and death. At defendant’s request, special interrogatories were submitted to the jury on the questions of defendant’s wilful and knowing violation of the ICC rule and of the decedent’s contributory wilful and wanton conduct. The jury answered the special interrogatories against defendant and entered a verdict of $300,000 punitive damages in favor of plaintiff-administrator. It is clear that by awarding punitive damages on count IV, the jury also found that the decedent sustained actual damages prior to his death as a result of defendant’s wilful violation of the ICC rule.

Count IV was brought under section 73 of the Public Utilities Act, which provides:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction by any person or corporation.” (Emphasis added.) Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.

There can be no question that the decedent’s pain and

suffering which resulted from defendant’s wrongful and wilful act is an “injury” contemplated by the Act and one for which a surviving person could recover both compensatory and punitive damages. The law, of course, has always recognized that, if a person survives, he may bring a common law or statutory action against a party whose wrongful conduct has caused him such personal injury. At common law, however, the same action would abate upon the death of the injured person. To remedy this injustice, a survival statute was enacted (originally in 1872) to allow an action, such as the instant action to recover damages for an injury to the person, to survive the death of the injured person. (See Ill. Rev. Stat. 1977, ch. 110½, par. 27—6.) The Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died.

It is now firmly established in Illinois that the Wrongful Death Act (Ill. Rev. Stat. 1977, ch. 70, par. 1 et seq.) is not the exclusive remedy when death results from a given tortious act. (Saunders v. Schultz (1960), 20 Ill. 2d 301; Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423.) The reason for this rule was best expressed in Murphy when this court had an opportunity to examine the interrelationship between survival actions and wrongful death actions. There, the decedent’s estate sought recovery under the common law for the physical and mental suffering and for lost wages sustained by the decedent during the nine-day interval between his injury and his death. In concluding that the cause of action for pain and suffering and lost wages does not abate if the injured person subsequently died as the result of the same tortious act which caused him injury, the court reasoned:

“There may be a substantial loss of earnings, medical expenses, prolonged pain and suffering, as well as property damages sustained, before an injured person may succumb to his injuries. To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. Too, the result in such a case is that the wrongdoer will have to answer for only a portion of the damages he caused. Incongruously, if the injury caused is so severe that death results, the wrongdoer’s liability for the damages before death will be extinguished. It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter.” (Emphasis added.) Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, 431.

This court’s decision in Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, does nothing to abate the defendant’s statutory liability for punitive damages upon the death of the injured person. In Matty asovszky, where the decedent died instantly, his estate sought to recover punitive damages which the decedent, under the common law, might have recovered had he survived. The court summarily denied recovery of punitive damages because the Survival Act itself has “never been thought to authorize the award of punitive damages.” (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 33.) The court, however, did not base its denial of common law punitive damages on the broad proposition that punitive damages are unrecoverable when injury results in death. The court held that the imposition of punitive damages was improper in light of the fact that the party whose conduct was primarily responsible for the injury had been dismissed from the action.

Here, in contrast to Mattyasovszky, punitive recovery was sought, not under the common law, but directly under the Public Utilities Act, which expressly provides that “if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by way of punishment.” (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77.) The Survival Act itself neither authorizes nor prohibits punitive damages. It is merely the vehicle by which the cause of action, created by the Public Utilities Act, survives the death of the injured person when the action would otherwise have abated at common law. Unquestionably, the Public Utilities Act intends to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant’s wrongful and wilful statutory violation. It would pervert the Act’s intention if reprehensible conduct, so severe in consequence that resultant injury, culminating in death, was to be insulated from punitive liability under the very act designed to vigilantly promote safety by public utilities. Punitive damages for injuries prior to death should be unaffected by the subsequent death of the injured person, for punitive recovery addresses only the nature and gravity of a defendant’s wrongful and wilful act. Under the Act, defendant’s punitive liability accrued from the moment decedent sustained personal injury and, upon decedent’s death, his right to recovery passed unabated to his estate. Only in this manner can we observe the dictates of Murphy and provide for “a full liability and a full recovery *** for damages up to the time of death” (56 Ill. 2d 423, 431).

In answer to one of the special interrogatories, the jury specifically found that the defendant wilfully and knowingly violated Rule 205 of General Order 138 of the Illinois Commerce Commission. The rule provides:

“Every railroad shall keep its right of way reasonably clear of bush, shrubbery, trees, weeds, crops, and other unnecessary obstructions for a distance of at least 500 feet each way from every grade crossing where such things materially would obscure the view of approaching trains to travelers on the highway.” (Emphasis added.)

Defendant contends that the trees, shrubbery and house which obstructed the railroad crossing in this case were not on its right-of-way and that it, therefore, bore no duty to clear the obstructions.

The evidence introduced in the trial court indicated the following. The railroad crossing consisted of two sets of tracks. The set of tracks to the west was leased by Penn Central and the set of tracks to the east was leased by Norfolk & Western Railway Company from the Wabash Railroad Company. The railroads’ right-of-way extended for 120 feet: the Penn Central right-of-way was 65.55 feet wide, and defendant’s right-of-way stretched the remaining 54.45 feet. Trees and shrubbery in the backyard of the house immediately to the east of a fence and 3 feet 10 inches of the house itself were all within the defendant’s 54.45 foot right-of-way. A deed to the property, dated November 13, 1923, indicated no encumbrance of any kind. Defendant never used any of the property to the east of the fence, nor had it ever expressed any claim to this portion of its right-of-way.

In an answer to an interrogatory, defendant admitted that its right-of-way at the crossing measured 54.45 feet wide. It asserts, however, that no evidence established that its right-of-way was 54.45 feet wide immediately north of the crossing at the point of the obstructions. We disagree. A station map, dated June 30, 1919, admitted into evidence, showed that the eastern boundary of the right-of-way proceeds parallel to the tracks and does not narrow to the north of the crossing. The map further revealed that the fence was clearly within defendant’s right-of-way. Admitted into evidence, too, was a plan and profile drawing prepared by Norfolk & Western in April of 1970. Its representations corresponded exactly to those of the 1919 station map and showed the fence, shrubbery, trees and part of the house to be on defendant’s right-of-way. From these exhibits it is clear that from 1919 to 1970 the right-of-way was unchanged, that its width north of the crossing was the same as the width at the crossing, and that the obstructions were, indeed, on defendant’s right-of-way.

The fact that defendant made no claim to its right-of-way against the owner of the property is of no consequence. Defendant does not abandon its right-of-way by mere nonuse. (Golconda Northern Ry. v. Gulf Lines Connecting R.R. (1914), 265 Ill. 194, 206.) Moreover, as a public franchisee, defendant cannot dispose of its right-of-way without the consent and approval of the Illinois Commerce Commission. Any attempt to do so is void. (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 27.) The record affords no evidence of the lawful abandonment of the defendant’s right-of-way. Accordingly, we hold that there was sufficient evidence for the jury to find that the obstructions were on defendant’s right-of-way and that its failure to keep its right-of-way reasonably clear violated Rule 205.

The jury, in response to defendant’s special interrogatory, found that defendant’s violation was wilful. Defendant does not here contest that finding. Instead, it repeats the same argument of nonownership of the right-of-way upon which the obstructions are located and states “the only factual basis on which the punitive damage award can stand is if the [defendant] wilfully failed to keep [its] right-of-way free from obstructions for a distance of 500 feet from the crossing.” (Emphasis by defendant.) Inasmuch as the evidence showed and the jury correctly found that the obstructions were on defendant’s right-of-way and that those obstructions were closer than 500 feet from the crossing, we conclude that the award of punitive damages under section 73 of the Public Utilities Act was proper.

We also find that the jury award of $300,000 punitive damages was not excessive under the circumstances in this case. The Public Utilities Act expressly authorizes punitive damages to punish the tortious public utility for wilfully perpetuating a danger to the traveling public. The evidence indicated that the volume of traffic traversing the railroad crossing was high and that, in 1967, the city of Blooming-ton widened and paved the road intersecting the crossing to accomodate the burgeoning traffic. Moreover, three accidents, each similar in circumstance to the instant accident, occurred at the crossing between 1967 and 1970. Nevertheless, the defendant made no effort to clear the obstructions or to take steps to ensure the safety of the traveling public.

For the reasons stated, the judgment of the appellate court is affirmed. The cause is remanded to the circuit court of McLean County with directions to enter judgment upon the verdicts of the jury.

Affirmed and remanded, with directions.

MR. JUSTICE RYAN,

dissenting:

This is a companion case to Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127. In addition to the reasons stated for my dissent in Churchill, there are several issues here which will require additional comment.

Here, the majority opinion permits the recovery of punitive damages authorized by section 73 of the Public Utilities Act (Ill. Rev. Stat. 1969, ch. 111 2/3, par. 77) by the decedent’s estate through the use of the Survival Act (Ill. Rev. Stat. 1969, ch. 3, par. 339, now Ill. Rev. Stat. 1977, ch. 110½, par. 27—6). In Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 33, this court stated, in speaking of the Survival Act, “ [t] his statute has never been thought to authorize the award of punitive damages.” The majority opinion in the case we are now considering attempts to distinguish that holding by pointing out that in Mattyasovszky recovery of common law punitive damages was sought, whereas in this case, statutory punitive damages, as authorized by section 73 of the Public Utilities Act, are involved.

I do not understand the relevance of this distinction. The majority correctly states that the Survival Act “is merely the vehicle by which the cause of action, created by the Public Utilities Act, survives the death of the injured person.” (73 Ill. 2d at 174.) I cannot understand how this vehicle can safely carry over to the decedent’s estate a cause of action that he had before his death, for punitive damages under section 73 of the Public Utilities Act, but cannot carry over to his estate one that he may have had for punitive damages by virtue of some common law outrageous conduct not specifically condemned by statute. There is nothing in section 73 that would show a legislative intent that punitive damages under the Act should survive the death of the injured party, nor is there anything in the Survival Act that would indicate that statutory punitive damages should survive but that common law punitive damages should not. It appears to me that if the Survival Act is a sufficient vehicle for preserving a cause of action for statutory punitive damages, it should also be capable of preserving a cause of action for common law punitive damages. Conversely, if its language is not broad enough to permit the survival of a cause of action for common law punitive damages, then it is likewise not broad enough to permit the survival of a statutory cause of action for punitive damages.

The only construction that has ever been placed on our Survival Act by this court is that it does not authorize the award of punitive damages. In Murphy v. Martin Oil Co. (1974), 56 Ill. 2d 423, this court held that actions for predeath injuries survive under the Survival Act so that a wrongdoer may not escape liability for a portion of the damages he caused and so that there may be full recovery for the injuries and damages occasioned by the wrong. The holding of this case spoke of the compensatory nature of the recovery permitted under the Survival Act. It lends no support to the holding of the majority opinion in our case. Also, contrary to a statement in the majority opinion, this court, in Mattyasovszky did not summarily deny recovery of punitive damages because the Survival Act “has never been thought to award punitive damages.” Mr. Justice Schaefer, writing for this court, after setting forth the provisions of the Survival Act, noted that this court, in Murphy, had emphasized the compensatory nature of the damages authorized, and noted that there was nothing in Murphy which would suggest a change in the law of this State, which for more then 100 years has limited recovery under the Act to compensatory damages. Then after rejecting decisions of other States which had construed the language of their survival acts as allowing recovery of punitive damages, the court stated:

“The actions which survive under our statute are ^actions to recover damages for an injury to the person,’ and as we have pointed out, the very decisions that have recently expanded the right to recover under it have emphasized the compensatory nature of the recovery it authorizes.” 61 Ill. 2d 31, 34.

If it is the intention of the majority of this court to overrule Mattyasovszky, it would have been more candid in this case to face the question of the survival of punitive damages squarely instead of drawing a distinction which does not exist between statutory and common law punitive damages. With the foundation of Mattyasovszky so weakened, we can expect soon another assault upon the principles therein announced.

It is true that the purposes of awarding punitive damages, punishment and deterrence, are capable of being fulfilled by permitting actions for punitive damages to survive the death of the injured party. (See Riley, Punitive Damages: The Doctrine of Just Enrichment, 27 Drake L. Rev. 195, 206 (1978).) However, the purposes of punishment and deterrence do not fall within the acknowledged and established purpose of the plain language of our Survival Act, which is to compensate the estate of the decedent for the damages and injuries he suffered prior to death.

A very serious error in the opinion in this case involves the judicial transformation of a cause of action for wrongful death into one under the Survival Act. The opinion acknowledges that one paragraph of count IV recites that the cause of action is brought under both the Wrongful Death Act and the Public Utilities Act. But then the court finds that since the decedent lived for a period of time and had some very serious injuries, there were predeath injuries for which his estate should recover under the Survival Act. Count IV, under which punitive damages were sought, was an action for wrongful death and was not an action by the administrator for the benefit of the decedent’s estate. One has only to look at the entire amended complaint to realize the nature of the cause of action under count IV. Count I is a wrongful death action by the administrator in which it is alleged that the decedent left surviving him his widow and two adult children as his next of kin. And it is alleged in that count that the action is brought under Illinois Revised Statutes, chapter 70, paragraphs 1 and 2 (the Wrongful Death Act).

Count II is an action by the widow alone, brought under the family expense statute. Counts III and IV were added as an amendment to the complaint. Count III is by the administrator and it alleges, as did count I, that the decedent left surviving him his widow and two adult children as his next of kin, and then alleges, as did count I, that the action was brought under Illinois Revised Statutes, chapter 70, sections 1 and 2, and added that it was also brought under chapter 111 2/3, section 77 of the Illinois Revised Statutes. This last statutory provision is section 73 of the Public Utilities Act. Thus, this count was an action for wrongful death based on the defendant’s violation of the Public Utilities Act. This count sought only compensatory damages. Count IV also alleged that the decedent left surviving him his widow and two adult children as his next of kin, the same allegations as were contained in the wrongful death action in count I and the wrongful death action in count III.

Paragraph 7 of count IV again specifically alleges, as did count I and count III (both wrongful death counts), that the action was brought under Illinois Revised Statutes, chapter 70, sections 1 and 2, and added that it was also brought under chapter 111 2/3, section 77, Illinois Revised Statutes, which is section 73 of the Public Utilities Act. Count IV, in addition to praying compensatory damages, as had been prayed in count I and count III, prayed for punitive damages. Paragraphs 1 and 2 of chapter 70, Illinois Revised Statutes, are a part of the Wrongful Death Act, and in count IV the action was brought under the Wrongful Death Act, seeking compensatory and punitive damages for the wrongful death resulting from a violation of the Public Utilities Act. There is no reference in the complaint to the Survival Act, nor is there any allegation that the administrator is seeking recovery for predeath injuries for the benefit of the decedent’s estate.

Although actions under the Wrongful Death Act and under the Survival Act are both maintained by the decedent’s representative, the recovery under the Wrongful Death Act is for the benefit of the widow and next of kin, and does not become a part of the decedent’s estate. Distribution of the award is made by the court according to the degree of dependency.

Thus, in this case, the decedent, having left a widow and two adult children, the court would undoubtedly distribute a substantial amount of the wrongful death recovery to the decedent’s widow.

If the decedent’s representative recovers under the Survival Act, the recovery becomes a part of the decedent’s estate and subject to the obligations of the estate and to distribution according to statute or a will. The widow and two adult children of the decedent would take their distributive shares of the estate, which could be substantially different from that each would receive under the Wrongful Death Act. Of course, if the decedent left a will, the children could be eliminated entirely from participation in the recovery. The very theory of recovery and the elements of damages are different under the two acts and there are different tax consequences. Each act creates a separate and distinct cause of action, each filling different, although at times, complementary purposes.

When count IV alleged that the cause of action was brought under paragraphs 1 and 2 of chapter 70, Illinois Revised Statutes, that allegation can only mean that the cause of action is one for wrongful death for the benefit of the widow and next of kin, who were named in the allegations in that count. The jury returned a verdict of $300,000 under the prayer of this count. I know of no statutory, constitutional, or even inherent power that authorizes this court to take this $300,000 verdict away from the widow and next of kin and vest it in the decedent’s estate.

It is apparent to me that the majority opinion recognized that section 2 of the Wrongful Death Act authorizes only the recovery of fair and just compensation for the pecuniary injuries resulting from the death and does not authorize the recovery of punitive damages. Realizing this, the opinion, in an attempt to preserve the recovery of punitive damages, has transformed the Wrongful Death Act into one maintained under the Survival Act. No matter how flagrant a defendant’s conduct may be, and no matter how justified may be an award of punitive damages, a court has no authority, simply because punitive damages cannot be awarded under the Wrongful Death Act, to restructure the entire case solely to preserve the verdict against the defendant.

Something more than the mere commission of a wrong is required for punitive damages. ‘There must be circumstances of aggravation or outrage, such as spite or ‘malice’, or a fraudulent or evil motive on the part of the defendant ***” (Prosser, Torts sec. 2, at 9-10 (4th ed. 1971)). Under section 73 of the Public Utilities Act punitive damages may be awarded only when the violation or omission is “wilful.” The evidence in this case shows no such wilful or outrageous conduct on the part of the defendant.

The majority only assumes that the obstructions were on the defendant’s right-of-way. The opinion seems to place the burden on the railroad to prove that the obstructions were not on its right-of-way when, in fact, the burden is on the plaintiffs to prove that the obstructions were on the defendant’s right-of-way, and that there was a wilful violation on the part of the railroad in its failure to remove the obstructions. The record shows that the obstructions consisted of trees and shrubbery, and 3 feet 10 inches of a house. These obstructions are located on property that is owned by an individual and the record traces his title back to a conveyance in 1923 and is silent as to the title prior to that time. Nothing in this case shows that the property on which these obstructions are located constituted the defendant’s right-of-way since then. The opinion refers to a station map dated 1919 which shows that the right-of-way included the property on which the obstructions are located; however, the burden is on the plaintiff to show that the obstructions were on the defendant’s right-of-way on the date of the accident and not in 1919. Even the 1919 station map relied upon by the majority opinion shows a fence within the right-of-way, which indicates that even at that time, at least part of the property upon which the obstructions are located was fenced off from the right-of-way. Furthermore, I would not consider the failure of the railroad to cut the trees and shrubbery of the owner of the property, or the failure to remove 3 feet 10 inches of his house as constituting the outrageous or wilful conduct necessary to support an award of punitive damages.

For these reasons above stated, I dissent from the majority holding.

MR. JUSTICE UNDERWOOD joins in this dissent.


source: Caselaw Access Project

author:
MR. JUSTICE GOLDENHERSH
      MR. JUSTICE UNDERWOOD,

license: Public Domain

text:
    (No. 50075.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLIE FRANCIS, Appellee.

      Opinion filed October 6, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Iris E. Sholder, and Wendy S. Paul, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Marc Fogelberg, Assistant Public Defender, of counsel), for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a bench trial in the circuit court of Cook County defendant, Charlie Francis, was found guilty of unlawful use of weapons (Ill. Rev. Stat. 1975, ch. 38, par. 24—1(a)(10)). He was sentenced to a one-year conditional discharge (Ill. Rev. Stat. 1975, ch. 38, par. 1005—6—1 et seq.) with two days in custody and fined an amount equal to his bail bond deposit. The appellate court reversed (52 Ill. App. 3d 978), and we allowed the People’s petition for leave to appeal.

The Criminal Code of 1961 in pertinent part provided:

“(a) A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.” Ill. Rev. Stat. 1975, ch. 38, par. 24 — l(a)(10).
“(a) Subsections 24 — 1(a)(3), 24 — 1(a)(4) and 24 — l(a)(10) do not apply to or affect any of the following:
(4) *** security guards while actually engaged in the performance of the duties of their employment or commuting between their homes and places of employment, provided that such commuting is accomplished within one hour from departure from home or place.of employment ***.” Ill. Rev. Stat. 1975, ch. 38, par. 24-2(a)(4).
“(g) An information or indictment based upon a violation of any Subsection of this Article need not negative any exemptions contained in this Article. The defendant shall have the burden of proving such an exemption.” Ill. Rev. Stat. 1975, ch. 38, par. 24 — 2(g).

The parties stipulated that on February 19, 1976, defendant was arrested by officers of the Chicago Police Department in the city of Chicago at a place other than his home, and that he was then in possession of a fully loaded .38-caliber revolver.

Defendant testified that he was employed as a security agent by the W. L. Lillard Bureau of Investigation. On the day of his arrest he was assigned to service commencing at 9 a.m. at an A & P store on Drexel Avenue as a replacement for a newly hired agent who had not shown for work. Defendant testified that although the new agent arrived at 10:30 a.m., in keeping with normal agency procedure, he remained on duty to supervise the new employee’s work.

Defendant stated that he was first approached by the arresting officers during his lunch break at about 12:30 p.m. while sitting in his car, which was parked in a no-parking zone. Since he did not have his driver’s license with him he showed the officers identification in the form of a State firearms card, an Illinois State registration and identification card, and a W. L. Iillard Bureau of Investigation card. These cards were admitted into evidence. Defendant was issued a traffic citation for failing to have a driver’s license in his possession and sent on his way.

Defendant testified further that he returned to the A & P store for about 10 minutes and then “went off duty”; and that about 5 minutes later as he was driving to a nearby store to purchase some cigarettes, he was again detained by the same officers that had issued him the citation earlier in the day. At this time he was arrested on the unlawful use of weapons charge.

Both of the arresting officers testified. Officer O’Con-nor’s testimony, for the most part, corroborated defendant’s version of the arrest, but he stated that defendant had not told the officers that he had just gone off duty, and that defendant had said that he had gone off duty at 10:30. This latter statement, allegedly made by defendant, is not reflected in the arrest report submitted by the officers.

In reversing, the appellate court held “that defendant in the instant case presented a quantum of evidence sufficient to bring himself within the security guard exemption” (52 Ill. App. 3d 978, 982) and that the People “must prove beyond a reasonable doubt that defendant was not covered by the exemption. (People v. Williams (1975), 28 Ill. App. 3d 67, 71, 328 N.E.2d 192, 195.) The State has failed to sustain its burden.” 52 Ill. App. 3d 978, 983.

Citing People v. Smith (1978), 71 Ill. 2d 95, the People contend that the evidence proved the violation of section 24—1(a)(10) of the Criminal Code and that, as required by section 24—2(g), defendant failed to meet the burden of proving an exemption. Defendant concedes that in view of People, v. Smith, “he failed to prove that he was exempt” from the unlawful use of weapons charge, but argues that Smith reinterpreted the law in regard to a defendant’s burden in proving the exemption and he should, therefore, be granted a new trial.

Although the precise question presented was considered by this court for the first time in People v. Smith, the appellate court has consistently held that the defendant’s burden under section 24—2 required only the production of sufficient evidence to place the question of exemption in issue. (See People v. Rinehart (1967), 81 Ill. App. 2d 125; People v. Johnson (1975), 27 Ill. App. 3d 541; People v. Williams (1975), 28 Ill. App. 3d 67; People v. Smith (1977), 45 Ill. App. 3d 66.) The rule as applied by the appellate court is well stated in People v. Rinehart (1967), 81 Ill. App. 2d 125, and People v. Williams (1975), 28 Ill. App. 3d 67, in which the court said:

“The State argues that the burden of establishing an affirmative defense is on the defendant. This clearly negates a large body of case law and directly contravenes the provisions of chapter 38, section 3 — 2 which states:
‘(a) “Affirmative defense” means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.
‘(b) If the issue involved in an affirmative defense of proving the defendant guilty is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.’ ” People v. Rinehart (1967), 81 Ill. App. 2d 125, 128.
“It is a firmly settled proposition of law that the burden of proof never shifts to the defendant no matter what his defense may be. (People v. Durand, 307 Ill. 611.) We view section 24—2(f) [now section 24—2(g)] as placing the burden on defendant to produce a quantum of evidence sufficient to place the question of exemption in issue. Clearly, an exemption is an affirmative defense as defined by the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 3—2), and as we recognized in Rinehart, once an affirmative defense is raised the burden is on the State to prove defendant guilty beyond a reasonable doubt as to that issue. We reject the State’s request to modify our holding in Rinehart.” People v. Williams (1975), 28 Ill. App. 3d 67, 70-71.

In People v. Smith (1978), 71 Ill. 2d 95, the defendant was convicted of unlawful use of weapons in violation of the same statute involved here (Ill. Rev. Stat. 1973, ch. 38, par. 24—1(a)(10)). On appeal he assigned as error the giving of a jury instruction (Illinois Pattern Jury Instructions, Criminal, No. 18.02 (1968)), which in pertinent part read:

“The defendant has the burden of proving by a preponderance of the evidence that at the time of the crime charged he did not have immediate access to such weapon.” 71 Ill. 2d 95, 103.

In holding that the giving of the instruction was not error, the court observed: “It cannot be stressed too much that under this statute each element of the crime itself must be proved by the State beyond a reasonable doubt, and that this obligation of the State remains throughout the proceedings.” (71 Ill. 2d 95, 105.) Recognizing that there are 10 separately enumerated exempt categories applicable to those charged with a violation of section 24—1(a)(10), the court held: “For the State to be saddled with negating each defendant’s place in each of the 10 exempt categories would place impossible burdens upon effective prosecution of this type of case. The legislature has avoided this problem by requiring the prosecution to prove each and every element of the offense beyond a reasonable doubt and by requiring the defendant to prove his entitlement to the exemption.” (71 Ill. 2d 95, 105.) The court expressly rejected the contention that the exemptions provided in section 24—2 were affirmative defenses and held that “it was proper to instruct the jury that the burden of proving, by a preponderance of the evidence, that the defendant came within an exemption to the statute was upon him.” 71 Ill. 2d 95, 109.

Although defendant has conceded that under People v. Smith he failed to meet his burden of proof, our holding in Smith was a significant departure from the prior decisions of the appellate court. When a case is tried under an incorrect theory of law the appropriate action is to reverse the judgment and remand for a new trial. (Sparling v. Peabody Coal Co. (1974), 59 Ill. 2d 491, 496.) Defendant’s testimony that he did not go off duty until after his lunch break and that the arrest occurred approximately five minutes after he left work was sufficient to raise an affirmative defense and on this record we hold that he is entitled to a new trial and the opportunity to meet the burden of proof requisite under People v. Smith. For the reasons stated the judgment of the appellate court is modified to reverse the judgment of the circuit court and remand the cause for further proceedings consistent with this opinion and as so modified is affirmed.

Affirmed as modified; cause remanded.

MR. JUSTICE UNDERWOOD,

concurring in part and dissenting in part:

I agree that the appellate court decision should be reversed. I do not agree that the case should be remanded for a new trial. The court justifies its action in doing so by stating that People v. Smith (1978), 71 Ill. 2d 95, “was a significant departure from the prior decisions of the appellate court. When a case is tried under an incorrect theory of law the appropriate action is to reverse the judgment and remand for a new trial.” (73 Ill. 2d at 190.) The difficulty with that position is the fact that this case was not tried under an incorrect theory of law — it was tried under a correct theory as we held in Smith. And, although we refused in Smith, which the majority now characterizes as “a significant departure from the prior decisions of the appellate court,” to remand for a new trial, the court does so here. If Smith actually represented the significant change the court now says it did, the arguments for granting a new trial to that defendant were at least as persuasive as here if not more so.

I would reverse the judgment of the appellate court and affirm the judgment of the circuit court.

MR. JUSTICE RYAN joins in this partial concurrence and partial dissent.


author: MR. JUSTICE MORAN

text:
    (No. 50154.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JACKIE ROBINSON, Appellant.

      Opinion filed October 6, 1978.

      Ronald L. Carpel, of Decatur, for appellant.

      William J. Scott, Attorney General, of Springfield (Donald B. Mackay and Gerri Papushkewych, Assistant Attorneys General, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Macon County, defendant, Jackie Robinson, was convicted of rape, armed robbery and two counts of deviate sexual assault. He was sentenced to concurrent terms of 30 to 50 years on each of the four convictions. The appellate court affirmed (52 Ill. App. 3d 658), and we granted leave to appeal.

Defendant contends that (1) he was substantially prejudiced by the admission of hearsay evidence to which no objection was made; (2) the jury was improperly instructed; (3) the evidence is insufficient to prove he committed a robbery while armed with a dangerous weapon; (4) his trial counsel was incompetent; and (5) his sentences are excessive. We affirm defendant’s convictions and sentences.

The complainant, who testified as the State’s last witness, indicated that on the evening of November 4, 1975, she met three girl friends at a Decatur nightclub. During the latter part of the evening, a black male sat at their table and carried on a conversation with Chris Jackson, one of complainant’s girl friends. The man, from time to time, stared at the complainant.

At approximately 1 a.m., complainant left the nightclub. As she drove home, she was followed by a cream or light-yellow-colored car but, when she turned into the alley behind her garage, the auto following her continued down the street. As complainant prepared to close the garage doors, she was grabbed by a black male who shoved her up against the car door, pressed an object to her throat (causing a slight cut), and threatened to kill her if she said anything. Complainant never observed the object but thought it was either a small knife or a fingernail clipper. The assailant closed the garage doors and made the complainant lie on the garage floor. There, for approximately 1 hour and 45 minutes, he forced her to engage in various sex acts, including intercourse. During this time, complainant made no effort to escape or resist. Later, she was permitted to dress and told to sit in her car while the assailant went through her purse and took a $20 bill. Before leaving, he threatened to harm complainant if she told the police. Complainant remained in the car until dawn — approximately 3½ hours — then went to her apartment, where she called her sister.

Complainant testified that, although the garage was dimly lit, she had sufficient opportunity to observe her assailant and the clothes he was wearing. She stated that her assailant was the same individual who visited her table at the nightclub. She was reaffirmed in this identification when the assailant said, “You are not going to tell Chris, are you?” Complainant identified the defendant as that man. She further testified that she selected defendant’s picture from a group of photographs presented to her at the police station and that she also identified him in a police lineup. The prosecutor showed complainant a beige and burnt-orange striped sweater, and she identified it as one which had been worn by the person who sat at her table and later assaulted her.

On cross-examination, defense counsel established, among other things, that (1) both the garage and the nightclub were dimly lit; (2) complainant could not remember the description of clothing worn by her friends that night; (3) she never saw the weapon; (4) she made no effort to resist, escape or notify nearby residents by sounding the car horn; (5) she had never seen the defendant prior to that night and had only glanced at him at the nightclub; and (6) the cut on her throat did not bleed. Complainant was cross-examined on her statement to police which indicated that the assailant experienced difficulty in achieving an erection, and on her testimony at trial in which she said the assailant had intercourse with her. On redirect, complainant testified that she was afraid of her assailant because of his threats, and, therefore, did not resist.

Complainant’s sister testified, without objection by defense counsel, that, at 6:30 a.m., she received a telephone call from the complainant. Immediately thereafter, she went with her husband to complainant’s apartment. On arrival, the sister observed that complainant had a slight cut on her throat, her clothes were dirty, hair mussed and eyes swollen, and she was emotionally upset. The sister testified that complainant stated she had been raped and forced to submit to deviate sexual conduct in the garage, and that the person who sat at the table at the nightclub was her assailant. Police Officer Glick testified that he received a call from complainant at 7 a.m., and when he arrived at the apartment, complainant’s sister and brother-in-law were present. He corroborated the sister’s physical description of the complainant and then testified to the details of the crime as they were related to him by the complainant that morning. The State, also without objection, presented the testimony of two other officers: one established that complainant identified defendant’s picture when shown a group of photographs, and the other stated that complainant identified defendant as her assailant at the lineup. The hearsay testimony described in this paragraph is that which defendant maintains deprived him of a fair trial.

Four witnesses testified that the complainant was with them at the nightclub, and that a black male visited their table; two were unable to identify the defendant as the visitor. Chris Jackson, one of the two . witnesses who identified defendant as that man, stated that she had previously known the defendant, that he had come to the table and conversed with her, and that he left the nightclub four or five minutes after the complainant.

Following defendant’s arrest, his auto, a white-vinyl-over-pale-yellow Thunderbird, was searched. A black sock containing a fingernail clipper was found therein.

Sergeant Hunk of the Decatur police department testified that he interviewed the defendant at the police station at approximately 10:30 p.m., November 5, 1975, the evening following the occurrence. After the interview, defendant was permitted to make a telephone call. Hunk stated that he overheard defendant tell the recipient of the call to “Get over to Jean’s house and hunt clothing.” In a warranted search of the home of defendant’s girl friend, the police seized, among other things, a beige and burnt-orange striped sweater (the same sweater identified by the complainant at trial) and a sock which matched that found in defendant’s auto.

Over objection, defense counsel elicited from Sergeant Hunk defendant’s statements concerning his whereabouts on the night in question and the fact that defendant had stated that, after he left the nightclub, he went directly to his girl friend’s house, arriving there at approximately 1:15 a.m.

James Bald of the Illinois Bureau of Identification testified that extraneous hairs, which, on directions from Officer Glick, complainant had combed from her pubic area, were found in tests to be pubic hairs with Negroid characteristics, and that stains on underpants worn by complainant that night were identified as semen.

Defense witnesses testified that they saw the defendant at the nightclub wearing a leather jacket. A female friend testified that, on the evening of November 4, defendant was at her house from 10 p.m. until about 11:30 p.m., that he returned between 11:45 p.m. and midnight and left again at about 12:30 a.m. (This time sequence conflicted with that testified to by both State and defense witnesses.) Jean Smith, defendant’s girl friend, testified that she was with defendant early in the evening and that he later returned to her home at about 1:15 a.m. and did not leave again that night. Defendant did not take the witness stand.

Following trial, defendant retained new counsel and filed an amended post-trial motion which claimed the denial of effective assistance of counsel. An evidentiary hearing was held.

Defendant contends that he was denied a fair trial by the admission of the hearsay testimony. The State contends that, under the spontaneous declaration exception to the hearsay rule, the admission of the testimony of complainant’s sister and Officer Glick was not error.

This court has repeatedly held that, for testimony to qualify as a spontaneous declaration and be admissible regardless of declarant’s presence at trial, three elements must be present: “(1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.” (People v. Poland (1961), 22 Ill. 2d 175, 181.) As this court noted in Poland, “The pertinent point is whether there was a lack of sufficient time to allow an opportunity for reflection and invention.” (22 Ill. 2d 175, 181.) Here, more than 3½ hours had elapsed before the complainant told anyone the details of the crime. Moreover, the statements to Officer Glick came after the complainant had discussed the crime with her sister and brother-in-law. To conclude that complainant’s statements were spontaneous in this case would do utter violence to the rule.

Defendant acknowledges the admissibility of hearsay rape complaints under the “corroborative complaint” exception (People v. Damen (1963), 28 Ill. 2d 464, 472-74), but argues that no details regarding the crime or the identity of the assailant may be disclosed thereunder. We agree. Consequently, it must be determined whether, in this case, the hearsay revelations concerning the crime and the identity of complainant’s assailant amounted to reversible error.

We observe that no fact regarding the crime was introduced by the State through hearsay testimony which fact was not later established by the complainant’s own testimony. The hearsay testimony was merely cumulative. There also was substantial corroborative evidence, in addition to the hearsay testimony, e.g., defendant’s identification at the nightclub, his inculpatory statement, his ownership of a pale-yellow auto and of a beige and burnt-orange striped sweater, the discovery of a fingernail clipper in his car, and the presence of extraneous Negroid hairs on the victim. Aside from the unsworn and sometimes cumulative nature of hearsay evidence, its most objectionable feature, and the main rationale underlying its exclusion, is the opposing party’s inability to test the real value of the testimony by exposing the source of the assertion to cross-examination. (People v. Carpenter (1963), 28 Ill. 2d 116, 121; Novicki v. Department of Finance (1940), 373 Ill. 342, 344; McCormick, Evidence sec. 245, at 583 (2d ed. 1972); cf. Moore v. United States (1976), 429 U.S. 20, 21-22, 50 L. Ed. 2d 25, 28, 97 S. Ct. 29.) Here, defense counsel had an opportunity to and in fact did cross-examine the out-of-court declarant (complainant). We, therefore, find no reversible error in the admission of the sister’s and the police officer’s hearsay testimony.

We must also reject defendant’s assertion that it was reversible error to allow the police officers’ hearsay testimony concerning the identification of defendant’s photograph and of his person at the lineup. Here again, the testimony was largely cumulative to that of the complainant. Unlike People v. Wright (1965), 65 Ill. App. 2d 23, relied upon by the defendant, the instant complainant’s testimony was significantly corroborated by other circumstantial facts. Also, as noted above, the complainant was available for cross-examination concerning her out-of-court identifications. This court has held that where, as here, the complaining witness’ identification is positive, and where corroborative circumstantial facts are present, the admission of hearsay identification testimony will not constitute reversible error. People v. Canale (1972), 52 Ill. 2d 107, 114-15.

The defendant next asserts that the jury was improperly instructed. The contested non - Illinois Pattern Jury Instruction, which was given without objection by defense counsel, instructed the jury that a rape victim need not resist or cry out when restrained by fear of violence or when such act would have been futile or endangered her life. Defendant contends that inasmuch as consent was not formally raised as a defense, no instruction of this type should have been given. We disagree. Cross-examination of complainant emphasized her failure to resist or cry out. No error was therefore committed by instructing the jury in regard to the issues of resistance and outcry where, as here, there was evidence that the victim was threatened and intimidated. People v. Vaughn (1945), 390 Ill. 360, 370; People v. Rickey (1941), 375 Ill. 525, 532-36.

Defendant also contends that the evidence is insufficient to prove that he committed a robbery “while armed with a dangerous weapon.” He argues that there is no evidence that he was armed at the time he took the money, and that, as a matter of law, a fingernail clipper cannot be considered a dangerous weapon within the meaning of section 18—2(a) (Ill. Rev. Stat. 1975, ch. 38, par. 18—2(a)). The fingernail clipper, which was exhibited to the jury and which has been included in the record before this court, contains a sharp, pointed fingernail file. In People v. Dwyer (1927), 324 Ill. 363, 365, this court held:

“Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.”

Under the circumstances of this case, we believe the nature of the weapon and its potential for doing harm were questions of fact for the jury to decide.

Though there is no evidence that the defendant displayed a weapon during the actual taking of the $20, we deem this immaterial where, as here, a weapon had been originally disclosed to the victim, and there is no evidence that the weapon had been discarded or otherwise made inaccessible. We find, therefore, that the evidence is sufficient to sustain the defendant’s conviction for armed robbery.

As previously noted, defendant, in his post-trial motion, challenged trial counsel’s competency, and a hearing was held. The most significant of defendant’s complaints are trial counsel’s failure to call defendant as a witness, failure to object to the hearsay testimony, failure to impeach complainant with allegedly inconsistent statements contained in police reports, and the introduction of conflicting alibi testimony.

While defendant argues that these acts or omissions reduced the trial to a “farce or mockery,” he urges this court to abandon the “farce or mockery” standard and adopt one which would impose a requirement that counsel’s performance meet a minimum level of professional competency. Were we to agree that such a requirement should be imposed, we would, nevertheless, here find that defendant did receive the assistance of a reasonably competent attorney.

Defendant has objected to some of trial counsel’s acts or omissions, but has failed to cite any of counsel’s affirmative steps, e.g., counsel’s motions for reduction of bond, discovery and suppression of evidence. The record reveals that counsel closely examined the complainant on matters such as her ability to identify the defendant, her lack of resistance, her failure to observe the weapon, and her statement regarding assailant’s alleged difficulty in achieving an erection. Through the skillful cross-examination of Sergeant Hunk, counsel elicited defendant’s statements concerning his alibi, which statements were consistent with the testimony of defendant’s girl friend. Numerous other examples are contained in the record which demonstrate counsel’s reasonable level of competency and effective representation.

Present counsel asserts that the defendant should have taken the stand. The record indicates that trial counsel recommended that the defendant not testify because defendant had admitted to him that the clothes which were introduced into evidence by the State were the same clothes defendant had worn at the nightclub. Under these circumstances, trial counsel could have reasonably believed that defendant’s testimony under cross-examination would have been corroborative of the State’s case and damaging to his own. At the post-trial hearing, defendant admitted that he adopted counsel’s professional judgment in this matter. We have reviewed defendant’s other assertions of incompetency, find that none warrant reversal, and will not, on this issue, unduly lengthen our opinion.

Finally, defendant contends, his sentences are excessive. The record discloses that defendant had had two adult misdemeanor convictions and a history of juvenile delinquency. The adult convictions occurred within three years of the instant, very serious, crimes. As the State correctly observed, citing Coker v. Georgia (1977), 433 U.S. 584, 597, 53 L. Ed. 2d 982, 992-93, 97 S. Ct. 2861, 2868, “short of homicide, rape is the ‘ultimate violation of self.’ ” There is no indication in the record that the trial court was biased or prejudiced against the defendant or that it did not structure the sentences so as to reflect defendant’s potential for rehabilitation. We will not, therefore, disturb the sentences entered by the trial court. People v. Heflin (1978), 71 Ill. 2d 525, 545-46.

The judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE GOLDENHERSH

text:
    (No. 50157.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. THOMAS LUTZ, Appellee.

      Opinion filed October 6, 1978.

      William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, Jr., and Stuart W. Opdycke, Assistant Attorneys General of Chicago, of counsel), for the People.
    Richard J. Wilson, Deputy Defender and Barbara A. Chasnoff, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Vermilion County defendant, Thomas Lutz, was convicted of the offense of aggravated battery. The appellate court, with one judge dissenting, reversed (52 Ill. App. 3d 732), and we allowed the People’s petition for leave to appeal. The appellate court held that the indictment failed to charge the offense of aggravated battery and that in denying defendant’s motion in arrest of judgment, the circuit court had erred.

The indictment contained two counts. In count I it was charged that defendant “committed the offense of AGGRAVATED BATTERY, in that he did knowingly and without legal justification in committing a battery on Dan Wilson use a deadly weapon, to-wit: a firearm, in violation of Illinois Revised Statutes, 1973, Chapter 38, Section 12—4(b)(1) ***.” Count II charged that defendant “committed the offense of AGGRAVATED BATTERY, in that he did knowingly and without legal justification, in committing a battery on Dan Wilson, then and there knew Dan Wilson, the individual harmed, to be a peace officer engaged in the execution of official duties, in violation of Illinois Revised Statutes, 1973, Chapter 38, Section 12—4(b)(6) ***.”

The statutes in pertinent part provided:

“Sec. 12 — 3. Battery.
(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” Ill. Rev. Stat. 1973, ch. 38, par. 12 — 3(a).
“Sec. 12 — 4. Aggravated Battery.
(a) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.
(b) A person who, in committing a battery either:
(1) Uses a deadly weapon; [or]
(6) Knows the individual harmed to be a peace officer, or a person summoned and directed by him, or a correctional officer, while such officer is engaged in the execution of any of his official duties including arrest or attempted arrest;
(9) *** commits aggravated battery ***.” Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4.

The People contend that the appellate court erred in reversing the judgment for the reason that “a defendant who contests the validity of the indictment for the first time in a motion for arrest of judgment must demonstrate that defects foreclosed him from understanding the nature of the charges and preparing a defense thereto, or that the indictment was insufficient to stand as a bar to a subsequent prosecution for the same offense.” They argue that “the unspoken rationale of Pujoue” (People v. Pujoue (1975), 61 Ill. 2d 335) should be applied here for the reason that there was “no articulable prejudice” and that the indictment should not fail “for want of technical niceties.”

The Code of Criminal Procedure of 1963 provides:

“Sec. 116 — 2. Motion in Arrest of Judgment.
(a) A written motion in arrest of judgment shall be filed by the defendant within 30 days following the entry of a verdict or finding of guilty. Reasonable notice of the motion shall be served upon the State.
(b) The court shall grant the motion when:
(1) The indictment, information or complaint does not charge an offense, or
(2) The court is without jurisdiction of the cause.” Ill. Rev. Stat. 1973, ch. 38, par. 116 — 2.

Historically, a motion in arrest of judgment “opened the entire record, and would reach any defect apparent upon its face.” (Gardner v. People (1841), 4 Ill. (3 Scam.) 83, 90; People v. Plocar (1952), 411 Ill. 141, 145.) In People v. Gilmore (1976), 63 Ill. 2d 23, the court pointed out that of the 10 grounds enumerated in section 114—1(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 114—1(a)) upon which an indictment, information or complaint may be dismissed upon allowance of a motion to dismiss made prior to trial, only two (pars. 114—1(a)(6), (8)) would support amotion in arrest of judgment. The court said:

“The legislative intent concerning the nonwaiver of the grounds for dismissal in sections 114 — 1(a)(6) and 114 — 1(a)(8) clearly was that even though not raised by pretrial motion they could be raised by motion in arrest of judgment. To that end section 116 — 2 of the Code of Criminal Procedure provides that following a verdict or finding of guilty judgment may be arrested when:
‘(1) The indictment, information or complaint does not charge an offense, or
(2) The court is without jurisdiction of the cause.’ ”
(63 m. 2d 23, 28.)

As the court observed in Gilmore, “No similar statutory provision was made for nonwaiver at the appellate level” (63 Ill. 2d 23, 28), and we decline the invitation of the People to extend the Pujoue rule to include defects in the indictment pointed out in a timely filed motion in arrest of judgment.

Having concluded that the question was timely raised by defendant’s motion in arrest of judgment we consider next the contentions concerning the sufficiency of the indictment. Citing People v. Mills (1968), 40 Ill. 2d 4, the People contend that the language of the statute contained in the indictment sufficiently particularized the offense so that defendant was informed with reasonable certainty of the precise crime with which he was charged. It is defendant’s position that the indictment failed to charge the necessary elements of the offense of aggravated battery as required by section 111—3(a)(3) of the Code of Criminal Procedure.

In People v. Gilmore the court said:

“The form of a charge, insofar as is relevant here, is prescribed in section 111—3(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1975, ch. 38, par. Ill—3(a)), which provides:
‘Sec. 111 — 3. Form of Charge.
(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged; ***.’
The precise allegations required, however, may vary with the statutory provisions and the nature of the offense. People v. Wallace, 57 Ill. 2d 285; People v. Mahle, 57 Ill. 2d 279;People v. And, 52 Ill. 2d 368; Cochran v. People, 175 Ill. 28.” 63 Ill. 2d 23, 29.

As the court observed in People v. Patrick (1967), 38 Ill. 2d 255, “An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.” (38 Ill. 2d 255, 258.) In People v. Abrams (1971), 48 Ill. 2d 446, it was held that a complaint which failed to charge either that the physical contact was of an insulting or provoking nature or caused bodily harm did not allege all the material facts constituting the offense of battery.

Although count I contains the language of section 12—4(b)(1) of the Criminal Code it fails to charge the offense of aggravated battery in the manner required by section 111—3(a) of the Code of Criminal Procedure. The situation presented is clearly distinguishable from an indictment purporting to charge the “inchoate offenses” of attempt or conspiracy. (See People v. Williams (1972), 52 Ill. 2d 455, 460.) Conviction for the offenses of attempt and conspiracy require proof only of the specific intent and the acts taken in furtherance thereof and do not require proof of the essential elements of the substantive offense. In contrast, in order to convict under the provisions of section 12—4(b)(1), it was essential to prove all the elements of section 12—3(a), including one of the alternative methods of committing the offense, and in addition thereto that defendant used a deadly weapon. The rationale of People v. Abrams requires that we hold count I of the indictment to be defective and that the circuit court erred in denying defendant’s motion in arrest of judgment.

Count II purports to charge the violation of section 12—4(b)(6) of the Criminal Code. Section 12—4(b) enumerates nine situations in which the offense of battery, a Class A misdemeanor, is transformed into aggravated battery, a Class 3 felony. In six of the subparagraphs, conviction of the more serious offense requires proof that the defendant “knows the individual harmed” to be one of the persons enumerated in the statute. See Ill. Rev. Stat. 1973, ch. 38, pars. 12-4(b)(3), (4), (5), (6), (7), (9).

“It is a cardinal rule of statutory construction that significance and effect should, if possible, without destroying the sense or effect of the law, be accorded every paragraph, sentence, phrase and word. (50 Am. Jur. sec. 358.) A statute should be so construed, if possible, that no word, clause or sentence is rendered meaningless or superfluous. Peacock v. Judges Retirement System, 10 Ill. 2d 498, 501; Consumers Co. v. Industrial Com., 364 Ill. 145.” (People ex rel. Barrett v. Barrett (1964), 31 Ill. 2d 360, 364-65.) “In construing a statute where the same, or substantially the same, words or phrases appear in different parts of the same statute they will be given a generally accepted and consistent meaning, where the legislative intent is not clearly expressed to the contrary.” (Moran v. Katsinas (1959), 16 Ill. 2d 169, 174.) “By well settled principles of law, a criminal or penal statute is to be strictly construed in favor of an accused, and nothing is to be taken by intendment or implication against him beyond the obvious or literal meaning of such statutes. (People v. Kirkrand, 397 Ill. 588; People v. Lund, 382 Ill. 213.)” People v. Eagle Food Centers, Inc. (1964), 31 Ill. 2d 535, 539.

Applying the foregoing rules of statutory construction, we hold that count II of the indictment, purporting to charge aggravated battery under section 12—4(b)(6), in failing to charge that the alleged battery caused “bodily harm” to the police officer, failed to charge the nature and elements of the offense as required by section 111—3(a)(3) of the Code of Criminal Procedure.

For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD MR. JUSTICE GOLDENHERSH,

text:
    (No. 49985.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LEONARD HOLDMAN et al., Appellees.

      Opinion filed October 6, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger and Myra J. Brown, Assistant State’s Attorneys, of counsel), for the People.
    Ralph Ruebner, Deputy Defender, and Andrew Berman, Assistant Defender, of the Office of State Appellate Defender, of Chicago, for appellees.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendants Leonard Holdman and DeWayne Williams were convicted of armed robbery in a jury trial in the circuit court of Cook County and each was sentenced to a term of 4 to 6 years’ imprisonment. On appeal, the Appellate Court for the First District reversed on the basis that the defendants’ arrests were made without probable cause, and their subsequent identifications as armed robbers should have been suppressed as the fruit of the improper arrests. (51 Ill. App. 3d 484.) We allowed the State’s petition for leave to appeal.

The facts of this case are detailed in the opinion of the appellate court and will be reiterated here only so far as is necessary to our opinion. At approximately 12:30 a.m. on February 4, 1973, Willie Ross was robbed at gunpoint by two men. Ross called the police, and at about 12:50 Officers Colton and Stien of the Chicago Police Department arrived and interviewed him. Ross told the officers what had happened and described the robbers as two Negroes in their late teens, between 5 feet 8 inches and 5 feet 10 inches tall, wearing dark jackets. Ross further informed the police that the two men had fled in an older model Buick driven by a third person.

After 15 to 20 minutes, Ross’ interview with the officers was interrupted by a police radio call requesting assistance with a chase in progress. Responding thereto, the officers drove to the scene of the chase with Ross still in the back seat. When they arrived on the scene, they observed, inter alia, a Buick which had crashed into a viaduct. The officers got out of their car to investigate, telling Ross to remain in it. But Ross, believing the Buick was the same car used by the robbers, left the car and followed the officers. Three'men were seated in the back seat of one of the squad cars and were clearly visible to Ross because the interior light of the car was on. Upon approaching the car, Ross immediately and voluntarily identified two of the men, the defendants here, as the men who had robbed him.

The apprehension of the defendants and the fortuity of their being held in the back seat of the squad car constitute the crux of this case. While on a routine patrol in their marked squad car, Officers Hamel and Hofer of the Chicago Police Department had noticed a Buick Skylark which they believed to be associated with Orlando Page, for whom they had an arrest warrant for armed robbery. The officers pulled alongside the Buick as it traveled down the street, and shined their spotlight into the vehicle. The officers clearly saw and later identified the driver of the Buick as Robert Toney, a co-defendant who was found not guilty of the armed robbery charge at trial. They saw a second person on the passenger side whom they could not identify. In response to the spotlight, Toney looked over at the marked squad car and then accelerated rapidly.

A high-speed chase ensued with the police utilizing their Mars light and siren. At one point, after failing to negotiate a turn, the Buick stopped. Using their spotlight, the police clearly saw the front-seat passenger whom they later identified as defendant Williams. As the officers left the squad car, Toney accelerated the Buick in reverse; the officers reentered the squad car, and, after a brief chase, the Buick crashed into a viaduct. The officers, temporarily blinded by the crashed car’s bright lights, saw one man flee the car and run into a field. After calling for assistance, the officers commenced chasing on foot all three men whom they then saw running through the field. The three ran around a corner and were temporarily out of the officers’ sight, but were stopped by investigators who had arrived at the scene in response to the call for assistance. Officers Hamel and Hofer arrived moments later and told the investigators that the three were the men they were chasing. The three were searched and placed in the investigators’ car, driven back to the crash scene, and then transferred to the marked squad car. Shortly thereafter, Officers Colton and Stien arrived with Ross, the armed robbery victim, and the identification already described was made.

The crucial issue in this case is whether the police had probable cause to arrest Holdman and Williams. The defendants contend, and the appellate court agreed, that there was no probable cause for their arrest, and the subsequent crash-scene and in-court identifications should therefore have been suppressed. Defendants argue that the investigation of Orlando Page, which initially caused the police to shine their spotlight into the Buick, was perhaps grounds for an investigatory stop under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, but was insufficient to arrest defendants, who had no known association with Page. Further, defendants argue that as passengers they are not responsible for the traffic violations of the driver; and that under the doctrine of Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, mere flight from the crash scene is insufficient to constitute grounds for a warrantless arrest. Finally, defendants contend the arrests are not supportable by reference to Illinois’ statute prohibiting resisting or obstructing the duties of a police officer (Ill. Rev. Stat. 1973, ch. 38, par. 31—1), because the policemen’s acts were not authorized and the defendants did not know that they, or others, were being investigated. Accordingly, the ultimate conclusion of. defendants’ logic is that the police should have released them immediately after it was ascertained that neither of them was the driver of the chased vehicle and that Orlando Page was not present.

The State, on the other hand, believes the detention of the defendants was lawful and that the subsequent crash-scene identification was properly admitted by the trial court. The State views the initial shining of the light into the car in which defendants were riding as justified on the grounds of the car’s believed connection with a fugitive for whom the officers had a warrant. The State also urges that the officers were justified in pursuing the car on any of several grounds when it accelerated rapidly in an obvious effort to flee them: to continue their investigation of Orlando Page because they had not yet identified all the occupants of the car, to investigate why the persons were fleeing the police, or to enforce the traffic laws which were being violated. Additionally, the State contends the officers were justified in arresting the defendants, particularly after their on-foot flight, for a violation of section 31—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 31—1), relating to resisting or obstructing a police officer. For any of these reasons, the State argues, the officers were justified in detaining the defendants and transporting them back to the crash scene. Thus, urges the State, the crash-scene identification of defendants, although somewhat fortuitous, was legal and therefore properly admitted at trial.

We agree with the State for a number of reasons. We see no valid reason to overturn the trial court’s determination that the Buick’s believed connection with a fugitive provided reasonable grounds for the shining of the light into the car in which defendants were riding. There is authority to support the proposition that this initial inquiry was insufficient to constitute a “stop” because there was no coercion or threat of coercion by the officers; and thus they were simply performing their official duty. (E.g., People v. Jordan (1976), 43 Ill. App. 3d 660; People v. McGarry (1973), 10 Ill. App. 3d 570.) Even if the shining of the light is sufficient to constitute a “stop,” it was permissible for the purpose of investigating possibly criminal behavior even though there was no probable cause to make an arrest. (Ill. Rev. Stat. 1973, ch. 38, par. 107—14; see also Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) The objective determination to be made is whether “the facts available to the officer at the moment of the seizure *** ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” (Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906, 88 S. Ct. 1868, 1880.) Certainly police officers must be permitted to shine a light into a car they reasonably believe to be associated with a fugitive in an effort to determine if that fugitive is present in the vehicle.

The flight immediately following the officers’ shining of the light was a strong indication there was criminal activity afoot, and, in our judgment, required police pursuit. The defendants were directly implicated by their on-foot flight through the field following the crash of the vehicle in which they were riding. There is persuasive support for the proposition that flight from a clearly identifiable police officer may, dependent upon the circumstances, be sufficient to provide probable cause for an arrest. (See Sibron v. New York (1968), 392 U.S. 40, 66-67, 20 L. Ed. 2d 917, 936-37, 88 S. Ct. 1889, 1904-05; People v. Addison (1977), 56 Ill. App. 3d 92; People v. Montgomery (1977), 53 Ill. App. 3d 298; People v. Beall (1976), 42 Ill. App. 3d 452; People v. Staples (1971), 1 Ill. App. 3d 922.) Moreover, it is clear to us that the defendants’ on-foot flight from the officers provided the articulable facts necessary to justify an investigatory stop under the Terry doctrine embodied in our statute. (See People v. Montgomery (1977), 53 Ill. App. 3d 298.) Thus, even had these defendants, once captured, been merely temporarily detained, the officers would nevertheless have been entitled to return them to the crash scene to complete their investigation and their identification by Ross would have ensued.

We believe, too, that the arrests were proper based on the defendants’ attempt to elude the police in violation of our statute prohibiting restricting or. obstructing a police officer:

“A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity commits a Class A misdemeanor.” (III. Rev. Stat. 1973, ch. 38, par. 31 — 1.)

This section has been broadly defined by this court to include any “physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer’s duties.” (People v. Raby (1968), 40 Ill. 2d 392, 399, cert. denied (1969), 393 U.S. 1083, 21 L. Ed. 2d 776, 89 S. Ct. 867.) Flight, as in the instant case, is definitely a physical act within the purview of this statute. See People v. Carroll (1971), 133 Ill. App. 2d 78.

A warrantless arrest is an authorized act within the officer’s official capacity if the officer has reasonable grounds to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1973, ch. 38, par. 107—2(c).) Here, Officers Hamel and Hofer personally witnessed the defendants’ flight in violation of the resistance statute and thus the “reasonable grounds” are undeniably present. The officers were both in uniform, in a marked police car, and, as the chase began, they activated the squad car’s emergency light and siren. It is obvious the defendants knew they were being pursued by the police, and they were accordingly under a duty imposed by the resistance statute not to oppose the officers’ efforts. (See. People v. Locken (1974), 59 Ill. 2d 459.) Thus, we believe the defendants’ arrests were justified based upon the circumstances surrounding their violation of the statute. The fact that a formal charge of resisting or obstructing a police officer was never made does not detract from our conclusion in light of the supervening events concerning the armed robbery charge.

We believe the defendants’ reliance upon Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, is misplaced because of obvious factual distinctions. Defendants contend Wong Sun establishes that flight does not justify an inference of guilt sufficient to generate probable cause for an arrest. That case involved agents, acting upon a tip concerning drugs, who approached a building containing the laundry business and home of defendant James Wah Toy. When Toy answered an agent’s knock at the door, the officer ostensibly identified himself as a customer. Toy responded that his establishment was not open and started to close the door. As the agent began to identify himself as a law-enforcement officer, Toy slammed the door and retreated down the hallway through the laundry and into the living quarters. The Supreme Court, citing the agent’s failure to adequately identify himself, determined the defendant’s flight into his own apartment “signified a guilty knowledge no more clearly than it did a natural desire to repel an apparently unauthorized intrustion.” (371 U.S. 471, 483, 9 L. Ed. 2d 441, 452, 83 S. Ct. 407, 415.) The facts and circumstances of the flight of defendants here transcend the Wong Sun rationale, especially in conjunction with our resistance statute.

We are unable to accept defendants’ contention that following the high-speed chase in the automobile and the on-foot chase through the field, the officers were left with no alternative but to release the defendants when it was ascertained that they were not driving the chased vehicle and the fugitive whose search initiated the inquiry was not present. At the very least we believe it imperative that the officers be able to transport the defendants back to the crash scene where the officers could complete their investigation by examining the automobile. Ironically, it is this specific transporting back to the crash scene which facilitated the identification of defendants by the armed robbery victim and which defendants now protest.

Our decision renders it unnecessary to review the appellate court’s determination that Ross’ in-court identification of the defendants was not established by clear and convincing evidence to be independent of the crash-scene identification.

We therefore hold the circuit court properly admitted the crash-scene identification of defendants into evidence. The appellate court’s erroneous determination that the arrests were improper and the subsequent identifications therefore inadmissible rendered it unnecessary for that court to consider other contentions raised by the defendants. Accordingly, the judgment of the Appellate Court for the First District is reversed and the cause is remanded to that court for a consideration of those other contentions.

Reversed and remanded, with directions.

MR. JUSTICE GOLDENHERSH,

dissenting:

I dissent and would affirm the judgment of the appellate court. I agree with the appellate court that these defendants “did not flee after being stopped or arrested. They were merely the passengers of a car being chased by the police.” (51 Ill. App. 3d 484, 489.) The reason stated for shining the light into the automobile in which defendants were riding was that the officers believed the vehicle to be one used on prior occasions by Orlando Page, for whom they had a warrant. Obviously the pursuing police officers knew immediately upon apprehending defendants that Orlando Page was not present, and I fail to perceive what made it “imperative that the officers be able to transport the defendants back to the crash scene where the officers could complete their investigation by examining the automobile” (73 Ill. 2d at 224). Obviously they could have examined the automobile without the presence of these two defendants.

The majority cites Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, in support of the proposition that “flight from a clearly identifiable police officer may, dependent upon the circumstances, be sufficient to provide probable cause for an arrest.” (73 Ill. 2d at 221.) In Sibron, the Supreme Court said, “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.” (392 U.S. 40, 66-67, 20 L. Ed. 2d 917, 937, 88 S. Ct. 1889, 1904.) This record is utterly devoid of any evidence that the pursuing police officers were possessed of “specific knowledge” which they could couple with the defendant’s flight in order to justify the decision to make the arrest.

The majority’s reliance upon Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, to find probable cause for arrest is misplaced. Terry is authority for the proposition that the fourth amendment authorizes intrusions upon constitutionally guaranteed rights less than arrests, and the circumstances which under Terry give rise to a permissible search fall far short of probable cause for an arrest. The permissible scope of police action authorized by Terry might arguably have permitted interrogation at the scene but cannot be stretched to include returning these defendants to the place where Ross identified them.

The appellate court pointed out correctly that on the night in question “Ross could only give a general description of his robbers as two male Negroes in their late teens, between 5 feet 8 inches and 5 feet 10 inches tall, wearing dark jackets.” (51 Ill. App. 3d 484, 491.) In contrast, his description at trial was much more detailed, and I agree with the appellate court that his “in-court identification was directly affected by his viewing of the defendants just after their illegal arrest.” 51 Ill. App. 3d 484, 491.