author: JUSTICE GOLDENHERSH

text:
    (No. 54170.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS EMERSON, Appellant.

      Opinion filed October 4, 1983.

      Theodore A. Gottfried, State Appellate Defender, and Robert E. Davison, First Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, and Michael E. Shabat, Joan S. Cherry, and Faith S. Salsburg, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Cook County defendant, Dennis Emerson, was convicted of the murder of Delinda Byrd. Pursuant to section 9 — 1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(d)) the People requested a sentencing hearing. The jury found that one or more of the aggravating factors set forth in section 9 — 1(b) existed, in that the murder occurred during the commission of an armed robbery, defendant was over 18 years of age when he committed the crime, and there were no mitigating factors sufficient to preclude a sentence of death (see Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(d)). The jury returned a verdict directing the court to sentence defendant to death, defendant was so sentenced, and the sentence was stayed (73 Ill. 2d R. 609(a)) pending direct appeal to this court. Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill. 2d R. 603.

In addition to the conviction for murder, defendant was convicted of attempted murder, armed robbery and aggravated arson. His brother and codefendant, Richard Jackson, was convicted of murder, attempted murder and armed robbery, but acquitted of aggravated arson. The codefendant was not sentenced to death and is not a party to this appeal.

Robert Ray testified that he owned and operated the Centaur Lounge. He lived in the apartment in the rear of the lounge. Ray stated that at approximately noon on August 12, 1979, defendant called him on the telephone. In the conversation, defendant said that he had to do some things and that he would come by later on in the day. Defendant called two or three more times that day with essentially the same message. Ray recognized defendant’s voice because he had known him for about four years and had previously spoken with him on the telephone. Ray also knew Ricky Jackson, a brother of defendant and Richard Jackson. Ricky had worked for Ray at the lounge, helping keep the lounge clean, “spinning records,” and doing other chores. Ray stated that he knew of Richard Jackson, the codefendant, and had seen him before, but did not know him personally.

Ray closed the lounge at about 2 a.m. As Ray was cleaning up, defendant and Richard Jackson arrived at the tavern and rang the doorbell. Ray let them in and they went to the kitchen in Ray’s apartment. As they were talking, Delinda Byrd, Ray’s girlfriend, arrived. Ray introduced her to defendant and Richard and the four of them continued the conversation. A short time later, defendant stood up, drew a gun, and told Ray and Delinda to lie on the floor. Defendant then left the room and returned with some electrical cord. Defendant tied their hands behind their backs and also tied their feet. Defendant took Ray’s keys, opened the cash register, and removed all the money that it contained. Defendant took some guns which Ray had on the premises, and also took between $500 and $600 from Delinda. Richard found a “half pair of shears” (apparently half of a broken pair of barber’s scissors) and gave it to defendant and told him to “use this.” Defendant straddled Ray, raised him up by his right shoulder, and stabbed him twice in the right side of the chest. He went over to Delinda. Ray asked defendant to stop, but defendant just looked at Ray “real cold” and repeatedly stabbed Delinda. Defendant went into Ray’s bedroom. Ray smelled smoke and saw flames coming from his bed. Defendant attempted to pick up Ray to put him in the burning room, and, apparently because Ray was too heavy, asked Richard to help him. Together, they put Ray in the bedroom. They also put Delinda into the bedroom. The door was closed behind them, and wired shut with a wire coat hanger.

After Ray determined that defendant and Richard had left, he was able to untie his hands. He hopped over to a window, raised it, leaned forward, and fell out the window into an air shaft between the building in which the apartment was located and an adjoining building. Ray estimated that he fell approximately six or eight feet. Delinda also managed to reach the window and fell on top of Ray. Ray untied his feet and then helped Delinda untie herself. Because of the height of the walls he was unable to escape from either side of the air shaft. Ray jumped up, grabbed the window ledge, and pulled himself back up into the burning room. He tried the door but was unable to open it. He climbed back into the air shaft.

Delinda and Ray screamed for help but were unable to attract anyone’s attention. Ray recalled that there was a window which opened into the lounge. In this window there was an air conditioner surrounded by plasterboard. Ray climbed up to the window, kicked in the plasterboard, and pushed the air conditioner into the lounge. He fell into the lounge, which was full of smoke and very hot, and ran out the front door. Outside, he saw a small boy who lived upstairs and told him to tell his parents to call the fire department. Ray then ran to the back of the building to talk to Delinda. There was a small slit between the buildings through which one could see into the air shaft. Delinda told Ray that it was getting hard to breathe in the air shaft and that it was getting hot. Ray then ran back to the front of the building and tried to enter the basement through a door in the men’s washroom. The door was locked and defendant and Richard had taken the keys. The firemen arrived, and Ray told them where Delinda was trapped. Ray lay down on the sidewalk and while lying there was approached by uniformed policemen. He spoke to them briefly and then was taken to the hospital in an ambulance.

At the hospital, the police showed Ray a group of approximately eight photographs. From these he selected the pictures of Richard Jackson and defendant. Ricky Jackson’s picture was also included in this group of photos.

On cross-examination Ray denied ever owing defendant any money. He explained that the reason that Delinda was carrying so much money that night was that she was looking for an apartment. Defense counsel asked Ray whether he told the first officers he saw, or any other policemen, that when he answered the bell he was met by two brothers who drew guns at that time. Ray denied ever telling anyone this. Ray admitted telling police that after defendant and his brother entered the building he left for a short while to purchase cigarettes. On redirect examination it was brought out that Ray immediately told the police officers that it was defendant and his brother, Richard Jackson, that had perpetrated the crime.

Edward Barry, a fireman, testified that his truck arrived at the fire simultaneously with other units. As they arrived he saw what appeared to be a victim of the fire “screaming and yelling.” This man (Ray) was covered with blood and hysterical. The man directed the firemen to the rear of the building where he said a woman was trapped. When Barry saw Delinda through the slit in the wall, she attempted to reach him. Mr. Barry described the unsuccessful efforts to save Delinda and the removal of her body from the air shaft. He described the condition of the building after the fire.

Officer Griffin, a Chicago policeman, testified that when he first saw Ray, he was “bloody from the chest area” and his clothes were disheveled. After talking with Ray he and his partner went immediately to the Jackson brothers’ home but did hot find either defendant or Richard Jackson at home. They found no evidence of items taken from the tavern. Officer Griffin and his partner returned to Ray’s tavern. Officer Griffin found a door-lock assembly which had a coat hanger attached to it and some electrical cord. On cross-examination, Officer Griffin stated that no fingerprints were found at the tavern. Officer Griffin said that Ray had told him that $400 to $600 had been taken by his assailants. On redirect examination, Officer Griffin stated that Ray identified defendant and Richard Jackson as his assailants immediately when he arrived at the burning tavern.

Dr. Stein, the Cook County coroner, testified that Delinda Byrd’s corpse had five stab wounds in the back which perforated both the right and left lungs. He stated that since there was smoke in the trachea, she was probably still alive for some time while the building was burning.

Ricky Jackson, the brother of defendant and Richard Jackson, testified that he had worked for Robert Ray. He stated that his duties included delivering marijuana for Ray. Ricky said that defendant had loaned Ray $5,000 sometime in April, May or June of 1975. On cross-examination, Ricky testified that he was not aware that defendant was incarcerated from March 1975 until sometime in 1979.

Defendant testified in his own behalf. On direct examination, defendant admitted to pleading guilty to three counts of armed robbery on August 29, 1971, and one count of armed robbery on August 30, 1971. Defendant also admitted that, shortly after being released from prison on parole in March 1975, he was charged with and pleaded guilty to the Federal offense of receiving stolen bank property. At approximately the same time defendant also pleaded guilty to another armed-robbery charge. The sentences for these offenses ran concurrently. Defendant was released from prison approximately three weeks before the crimes involved here were committed. Defendant testified that he pleaded guilty to all these crimes because he was guilty, but that he was not guilty of the crimes charged in this case. Defendant stated that he had known Ray for some time and had purchased marijuana from him. He said that he had loaned Ray some of the money that he had received which had been stolen from the bank. Defendant stated that Ray had informed him that he had been robbed earlier, that he wanted to get back into the business of selling drugs, and that it was for that purpose that he needed the loan. Defendant testified that while he was in jail he had made many attempts, through the mail and by telephone, to recover the money from Ray but that Ray had not repaid the money. Defendant also stated that he sent his sister and his brother to ask Ray to repay the loan. Defendant testified that on the night of the occurrence involved here he was at home until approximately 4 a.m., and then went to his ex-wife’s house for the rest of the night. He said that he did not return home after that because he knew the police were looking for him.

Defendant contends that several comments made by the assistant State’s Attorneys during final argument were so prejudicial that the judgment must be reversed. The first instance involved the circumstances surrounding defendant’s arrest. Defendant was not arrested until February 11, 1980, approximately six months after the crimes were committed.

Before trial, counsel for defendant moved in limine to preclude the People from mentioning that when defendant was arrested he was in possession of a loaded revolver. At trial, one of the arresting officers testified that when defendant was apprehended he did not resist arrest and went peaceably to the police station with the officers. In closing argument, defense counsel argued to the jury that when defendant was arrested he did not act like a guilty person and that he offered no resistance. In response, the assistant State’s Attorney said:

“Well, ladies and gentlemen, we can’t tell you everything he did after his arrest and he knows it. Maybe when this is over I will tell you what he did when he was arrested.”

The circuit court sustained defendant’s objection to this statement.

This remark was clearly improper. It is error to comment on facts which are inadmissible (People v. Donaldson (1956), 8 Ill. 2d 510, 518), or to suggest that evidence of guilt existed which, because of defendant’s objection, cannot be brought before the jury. (See People v. Lopez (1980), 89 Ill. App. 3d 456, 457; People v. Martinez (1979), 76 Ill. App. 3d 280, 285.) Defendant argues, and we agree, that the inference that defendant had been guilty of improper conduct at the time of the arrest left the jury free to speculate as to the nature of that misconduct. This court has recognized that an insinuation which leaves the jury to speculate may be more prejudicial than erroneously admitted specific proof. People v. Dukes (1957), 12 Ill. 2d 334, 342.

Defendant argues that statements made by the assistant State’s Attorney suggested that the defense attorneys created the defenses themselves and had suborned perjury. In final argument one of the assistant State’s Attorneys stated to the jury that defense counsel had laid down a smokescreen “composed of lies and misrepresentations and innuendoes.” He stated that all defense attorneys try to “dirty up the victim” to distract the attention of the jury from the defendant’s crime. Unless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a defense theory, attempted to free his client through trickery or deception, or suborned perjury are improper. (People v. Weathers (1975), 62 Ill. 2d 114, 117-21; People v. Stock (1974), 56 Ill. 2d 461, 472; People v. Freedman (1954), 4 Ill. 2d 414, 422.) It is not clear whether the assistant State’s Attorney was suggesting that the defense attorneys were guilty of lying or misrepresenting facts or whether he was suggesting that the defense presented consisted of testimony which was composed of lies and misrepresentations. It is clear, however, that statements to the effect that all defense attorneys try to “dirty up the victim” and that the defense attorneys want to walk the defendants out of court and put them back on the street improperly shift the focus of attention from the evidence in the case to the objectives of trial counsel. Furthermore, a comment concerning the trial tactics of “all” defense attorneys cannot be said to be based on the evidence and does little to help the jury resolve the issues in the case.

Defendant points to other statements made in argument which he contends constituted reversible error. The assistant State’s Attorney stated that, if they could, the defense attorneys would deny that any death occurred, but since they could not realistically do that, they had to “make something up.” Thus, the assistant State’s Attorney continued, they came up with a reason why Robert Ray would come into court and lie, “so they put on evidence that Robert Ray owed defendant money.” The assistant State’s Attorney concluded that this could not be a reason to falsely accuse the defendants of this crime since it was illogical that Robert Ray would want to let the real killers go just to avoid the debt he allegedly owed to defendant.

The People contend that the comment concerning the circumstances of defendant’s arrest was justified as a response to defendant's argument. The officer who arrested defendant testified in the sentencing hearing, and it appears from his testimony that defendant was arrested because he appeared to be nervously and suspiciously watching a place of business late at night. Upon his being taken into custody it was found that he had a loaded revolver in his possession. The order in limine prohibited any mention at trial of the reason for the arrest or the fact that he was armed at the time. We do not agree that by inquiring whether it was not a fact that defendant, upon being arrested, accompanied the officers peacefully, the defendant “opened the door” to the comment made by the assistant State’s Attorney.

Citing People v. Weatherspoon (1978), 63 Ill. App. 3d 315, the People assert that the argument concerning the fabricated defense and the conduct of defense counsel was not prejudicial error. In Weatherspoon, the State’s Attorney’s reference to counsel was that they were attempting to confuse the jury, that the argument was a “smoke screen” and a “snow job.” (63 Ill. App. 3d 315, 324.) We find that argument clearly distinguishable from the argument here which, in effect, purports to charge counsel with fabrication of a defense bordering on subornation of perjury.

Defendant argues that the circuit court erred in admitting evidence that Robert Ray had made a prior consistent statement. Over defendant’s objection, the People were permitted to ask Officer Griffin whether, when Griffin encountered Robert Ray sitting on the curb shortly after Ray had escaped the burning building, Ray identified the perpetrators of the crime. Also over objection, Ray was permitted to testify that he told the first police officers who arrived on the scene that defendant and his brother had committed these crimes. Citing People v. Clark (1972), 52 Ill. 2d 374, defendant argues that allowing these prior consistent statements was erroneous because the motive to testify falsely (Robert Ray’s alleged $5,000 debt owed to defendant) existed before he made the statements consistent with Ray’s testimony in court.

The People argue that defense counsel “opened the door” by attempting to impeach Ray’s testimony with prior inconsistent statements and otherwise impeach his credibility. Counsel for Richard Jackson asked Ray whether he had told Daniel McWeeny, an investigator for the Chicago police department, that only defendant, and not Richard Jackson, had placed Ray and Delinda Byrd in the burning bedroom and locked the door. Counsel for defendant asked Ray whether he told Officer McWeeny that when he first answered the door the assailants had their guns drawn and whether he had told the investigators that after defendant and Richard Jackson had arrived he left the tavern to purchase cigarettes. Counsel for Richard Jackson asked Ray whether it was Ricky Jackson who was at the tavern that night, to which Ray replied that it was not.

The People argue that Ray’s prior statement was properly admitted because Richard Jackson’s attorney had attempted to elicit from Ray the statement that Dennis Emerson alone had been responsible for placing him and Delinda Byrd in the burning bedroom. They argue that the People were properly permitted “to underscore” Ray’s identification of defendant and Richard Jackson as the men who entered his tavern and committed the robbery and murder. We do not agree. The cross-examination was not directed to the identity of the assailants; it was designed to show that one of them had not participated in certain conduct. The only prior consistent statement relevant under the circumstances would be one concerning the actions of the two perpetrators, and it did not open the door to a gratuitous corroboration of Ray’s testimony concerning the identity of his attackers.

The People recognize the general rule that prior consistent statements may be used only to rebut an inference of recent fabrication (see People v. Clark (1972), 52 Ill. 2d 374, 389) but argue that prior consistent statements are admissible where opposing counsel has introduced part of a statement which is inconsistent and the remainder of the statement would qualify or explain the inconsistency (People v. Richmond, (1980), 84 Ill. App. 3d 1017, 1021-22), or where it is questionable whether the prior inconsistent statement was made, and introduction of the prior consistent statements tends to prove that the inconsistent statements were not made (People v. Rodriguez (1978), 58 Ill. App. 3d 562, 569). Thus, the People argue that defense counsel’s introduction of part of Ray’s statement to the police, and their suggestion that Ray told police the assailants arrived at the tavern with guns drawn, opened the door to the introduction of Ray’s statement to the police identifying defendant and Richard Jackson as the offenders.

Our cases have consistently held that evidence of statements made prior to trial for the purpose of corroborating testimony at trial is inadmissible. The rule is well stated in Lyon v. Oliver (1925), 316 Ill. 292, 303:

“As a general rule, proof of statements made by a witness out of court harmonizing with his theory is inadmissible, but where it is. charged that his story is a recent fabrication or that he had some motive for testifying falsely, proof that he gave a similar account of the transaction when the motive did not exist or before the effect of the account could be foreseen is admissible.”

(See also People v. Clark (1972), 52 Ill. 2d 374; People v. Wesley (1959), 18 Ill. 2d 138.) Obviously the motive for testifying falsely existed prior to the time when the statements attributed to Ray were made, and they should not have been admitted.

The People argue that the testimony of Officer Griffin concerning Ray’s statement was admissible as a spontaneous declaration. This theory of its admissibEity was advanced for the first time in this court, which may explain why the record faüs to contain proof of the essential element that when it was made there had been no time since the occurrence for reflection and invention. People v. Poland (1961), 22 Ill. 2d 175.

On at least four occasions in final argument the assistant State’s Attorney made reference to the prior consistent statement of which defendant complains. This was clearly improper and erroneously emphasized the corroborative effect of the statement which should not have been admitted.

The evidence of guEt consists solely of Ray’s testimony. Defendant made no inculpatory statements, as previously noted, no fingerprints were found, and there was no evidence that any of the proceeds of the robbery were in defendant’s possession. Defendant denied any participation in the offense, and his testimony, if believed, would supply the motive for Ray’s having charged him with the offense.

Where guilt or innocence depends entirely on the credibility of an accuser and the defendant, no error should be permitted to intervene. “Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial.” (Duffy v. Cortesi (1954), 2 Ill. 2d 511, 517.) Here, the record fails to show affirmatively that the improperly admitted testimony and the improper oral argument were not prejudicial. The judgment must therefore be reversed and the cause remanded to the circuit court of Cook County for a new trial.

The parties have briefed and argued a number of other questions, many of which have been decided in recent opinions in cases in which the death penalty had been imposed. Other matters of which defendant complains are not likely to recur upon retrial and need not be further considered. For the reasons stated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 56461.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. EDWARD ALEJOS, JR., Appellee.

      Opinion filed October 4, 1983.

      Neil F. Hartigan and Tyrone C. Fahner, Attorneys General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, and Raymond Brogan, Assistant State’s Attorneys, of Chicago, of counsel), for the People.
    Steven Clark, Deputy Defender (Richard F. Faust, Assistant Appellate Defender, of Chicago, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

Defendant, Edward Alejos, Jr., was charged by information with murder, armed violence based on murder, and armed violence based on voluntary manslaughter, and was convicted in a bench trial in the circuit court of Cook County of voluntary manslaughter and armed violence based on voluntary manslaughter. In this appeal we are called upon to decide whether the armed-violence conviction was proper.

The defendant and the victim, Christian Arntzen, did not know each other. On the evening of October 27, 1978, defendant was sitting in his car in his own neighborhood conversing with an acquaintance, Jeanne Moffat. Bobby Malcolm, a friend of Moffat, had parked his car across the street from defendant’s car, narrowing the traffic lane somewhat. Malcolm was standing beside his car and not participating in the conversation. Arntzen drove past the two parked cars but made a U turn at the next intersection, waited for a few minutes, and then left his car and approached Malcolm, accusing him of blocking the street. Malcolm promised to leave, but Arntzen swung his fist at him and then began chasing him around defendant’s car, the engine of which was running. Arntzen then pounded five or six times on the hood of defendant’s car and shouted that defendant had tried to run over him. He approached the open window on the driver’s side and repeated the accusation, and according to defendant’s testimony, stated that he wished to fight with defendant and reached into the car to grab him. Defendant thereupon drew a handgun and shot him six times. Arntzen died four days later.

At trial defendant claimed that he had not tried to run over Arntzen and took the position that the shooting was justified because he had reason to fear for his safety. In announcing his decision the trial judge stated that this was a “[classic case of voluntary manslaughter” and found him guilty of that crime and of armed violence based on voluntary manslaughter.

Defendant appealed on three grounds. His first contention was that the information was insufficient to charge the crime of armed violence based on voluntary manslaughter in that it failed to set forth the elements of voluntary manslaughter, which can be committed in either of two ways. Second, he argued that armed violence could not be predicated on voluntary manslaughter, which is by its nature not a premeditated felony and is typically committed with a “dangerous weapon” which the armed-violence statute requires (see Ill. Rev. Stat. 1979, ch. 38, pars. 33A—1, 33A—2). His third ground was that his simultaneous conviction of manslaughter and armed violence in this case was improper because the same physical act provided the basis for both charges (e.g., People v. Mormon (1982), 92 Ill. 2d 268; People v. Donaldson (1982), 91 Ill. 2d 164). The appellate court reversed the armed-violence conviction on the basis of defendant’s first argument and remanded for resentencing on the manslaughter charge, as the two original sentences were concurrent and for the same length of time. (104 Ill. App. 3d 414.)

We do not reach the issue concerning the sufficiency of the armed-violence count because we agree with defendant that the legislature did not intend that crime to apply to voluntary manslaughter.

Because it requires that the defendant’s act be motivated by either a sudden and intense passion resulting from serious provocation or an unreasonable but actual belief that the circumstances required the use of deadly force (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 2(a), (b)), voluntary manslaughter, by its common law as well as its statutory definition, is an unpremeditated crime, induced by sudden fear or duress and committed without time for proper reflection. (See People v. Sudduth (1958), 14 Ill. 2d 605, 607; People v. Brown (1946), 392 Ill. 519, 521; Moore v. People (1893), 146 Ill. 600, 602; see generally Clark & Marshall, Law of Crimes sec. 10.11 (6th ed. 1958); Ill. Ann. Stat., ch. 38, par. 9—2, Committee Comments, at 392 (Smith-Hurd 1979).) The penalty for murder has traditionally been, and at the time of this homicide was, more severe than that for voluntary manslaughter. However, voluntary manslaughter is not distinguished from murder merely by the punishment or price tag which the law places on the guilty act. The punishment is simply a reflection of the common-sense judgment, which our criminal code has always recognized, that an unlawful homicide which is committed with no planning and no prior intent to commit a crime is neither as serious as a homicide born of criminal deliberation or design, nor as likely to be deterred by threat of punishment as a killing which results from planned criminal acts.

The armed-violence section makes it a Class X felony to commit, while armed with a dangerous weapon such as a handgun, knife or bludgeon, any crime which is a felony under Illinois law (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 1 et seq.)] it was enacted in 1967 “to respond emphatically to the growing incidence of violent crime” (People v. Graham (1975), 25 Ill. App. 3d 853, 858) and amended in 1977 to apply to felonies in general rather than, as in its original version, to certain enumerated crimes only, none of which were homicide offenses. The two essential elements of armed violence are being armed with a dangerous weapon and committing a felony, and while they must coincide, the mere presence of a weapon of the proscribed character is sufficient; the defendant need not actually use the weapon in the commission of the felony (People v. Haron (1981), 85 Ill. 2d 261, 266-68). The presence of a weapon enhances the danger that any felony that is committed will have deadly consequences should the victim offer resistance. Thus, it is viewed as an aggravating factor which enhances the severity of the underlying felony and upgrades the punishment available for it to Class X. See People v. Donaldson (1982), 91 Ill. 2d 164, 168.

Just as the presence of a weapon colors the way the law views the felony which defendant commits, so the felony changes the way the law regards the possession of the weapon. Even though the carrying of dangerous weapons in public is always fraught with some danger regardless of what the bearer is doing or intends to do, the armed-violence statute stops short of criminalizing all possession of guns, knives or baseball bats. The commission of a felony while so armed provides the basis for assessing criminal penalties for the act of carrying a dangerous weapon in society, an act which is not in all instances criminal. (Compare Ill. Rev. Stat. 1979, ch. 38, pars. 24—1, 24—3.1 (setting forth the limited circumstances under which the physical possession of certain weapons without more can be a crime).) The reason for the difference in treatment is presumably the belief that the chances that violence will erupt and cause great bodily harm because of the weapon are increased when a felony is committed; one who creates such danger by committing the felony while possessing the weapon is culpable and should bear the consequences for the danger his conduct poses. The stiff punishment mandated by the armed-violence provision is intended not only to punish the criminal and protect society from him but also to deter his conduct — that of carrying the weapon while committing a felony. See Ill. Rev. Stat. 1979, ch. 38, par. 1001-1-2.

We have noted above the difficulty of thinking conceptually of “deterring” a crime such as voluntary manslaughter which is committed on the spur of the moment and, by definition, without any deliberation. (See, e.g., M. Bassiouni, Criminal Law 95 (1978).) It is similarly difficult to understand the deterrent purpose the armed-violence provision could serve when applied to voluntary manslaughter. The general application of the armed-violence provision could be expected to discourage those who contemplate a felonious act beforehand from carrying a weapon when they set forth to perform the act, and from this perspective the provision serves a needed purpose. Yet no one who commits voluntary manslaughter intends in advance to take a life or employ deadly force; the only “intent” of this sort that enters into the crime is the decision, arrived at without deliberation and in most cases instantaneously, to use force capable of killing. Before that decision is arrived at, the person who is guilty of voluntary manslaughter typically has no criminal intent whatever. Many such people, including the defendant in this case, make the decision to arm themselves long before the onset of the passion or misconception which transforms their intentions from peaceful to homicidal; those that arm themselves later do so after the passion or the misconception takes hold of them, after which deterrence is no longer possible. It is not clear that the legislature intended by means of the armed-violence section to deter in all instances the carrying of weapons, even deadly ones, for whatever purposes people wish to carry them. This is particularly so in view of the limited nature of the restraints the legislature has placed on the possession of weapons in other parts of the criminal code.

Additionally it is not readily apparent, for purposes of the punitive or retributive goal of the penalty here sought, how the possessor of a weapon who intends no crime but commits voluntary manslaughter can be viewed as more responsible for a situation of public danger than the possessor of a weapon who intends no crime and goes about his business undisturbed. Neither plans to use the weapon at his disposal: the former person does so only in response to external provocation so strong that he does not properly deliberate or channel his response. The law rarely penalizes the latter, as we have explained, while its response to the homicide committed by the former is to exact punishment for the killing even though the law recognizes that the perpetrator lacked intent to commit a crime or bring about a criminal result prior to his decision, arrived at without deliberation, to use force capable of taking a life. (See Ill. Ann. Stat,, ch. 38, par. 9 — 2, Committee Comments, at 392-95 (Smith-Hurd 1979).) The only consideration that distinguishes one who commits voluntary manslaughter while armed with a dangerous weapon from one who commits voluntary manslaughter while not so armed is the fact that a weapon was involved in the former case and the possibility that its bearer might be more able to cause death in the future should he be provoked than one who is not in the habit of carrying weapons. The law does not ordinarily punish what a defendant might do, but only what he does, and assessing greater penalties via the generally worded armed-violence section to conduct which is covered in detail in all of its relevant aspects by other provisions of the criminal code is inconsistent with the intent of those provisions.

For these reasons we conclude that the State's suggestion that we may not disregard the plain language of the armed-violence provision which makes it applicable to “any felony definéd by Illinois Law” (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) should be rejected. This rule, set forth in People v. Moore (1978), 69 Ill. 2d 520, 523 and Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350, operates only when the statute that is being construed is free from apparent ambiguity, and it remains “the function of the courts to ascertain and give effect to the intent of the legislature, arriving at such intention not only from the language employed in the legislation, but also from the reason and necessity for the law, the evils to be remedied, and the objects and purposes to be obtained” (Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 517; see People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 309-10; People ex rel. Roan v. Wilson (1950), 405 Ill. 122, 127-28). Nor should the plain-meaning rule prevail over all other aids to construction where literal interpretation of a provision would yield a result inconsistent with other provisions which deal with the same subject and no other evidence of an intent to repeal or significantly alter those provisions can be discerned. (See People ex rel. Moore v. Chicago, Burlington & Quincy R.R. Co. (1953), 414 Ill. 419, 425; Wilderness Society v. Morton (D.C. Cir. 1973), 479 F.2d 842, 880-81, cert. denied (1973), 411 U.S. 917, 36 L. Ed. 2d 309, 93 S. Ct. 1550, and cases cited therein; 2A A. Sutherland, Statutory Construction sec. 51.01 (3d ed. 1973); compare Berger v. Howlett (1962), 25 Ill. 2d 128, 137 (a statute which is specific, complete in itself and intelligible on its face need not be read in pari materia with existing statutes but may modify them by implication).) We observe finally that the words “any felony” in the armed-violence statute are not without exception: in People v. Wisslead (1983), 94 Ill. 2d 190, this court ruled that they did not apply to forcible detention for constitutional reasons, while in People v. Haron (1981), 85 Ill. 2d 261, 278, we held that applying them to felonies which themselves required the use of dangerous weapons would be inconsistent with an assumption made in another part of the armed-violence provision that the underlying felony would retain a felony classification if committed while unarmed (Ill. Rev. Stat. 1979, ch. 38, par. 33A—3(b)).

In Harón we noted that where, as here, “we have no legislative history to assist us in determining whether the General Assembly intended the *** enhancement to apply to such charges,” this court “has recognized that a policy of lenity applies with respect to the interpretation of criminal statutes [citations],. and also recognizes the rule of construction giving precedence to a specific provision where it conflicts with a general one. [Citation.]” (People v. Haron (1981), 85 Ill. 2d 261, 277-78.) This court has recognized since Harón “the principle that ambiguities in penal statutes, particularly in the case of enhancement provisions, must be resolved in favor of the defendant” (People v. McCarty (1983), 94 Ill. 2d 28, 34-35; see People v. Donaldson (1982), 91 Ill. 2d 164, 169; People v. Hobbs (1981), 86 Ill. 2d 242, 246; People v. Lund (1943), 382 Ill. 213, 215-16; cf. People v. Carlock (1981), 102 Ill. App. 3d 1100, 1102 (a statute which enhances a penalty “is highly penal and should not be extended in its application to cases which do not, by the strictest construction, fall within its terms”)). All of these cases involved the substantive reach of a general and all-inclusive enhancement provision found in the criminal code. In view of the fact that the carrying of weapons is not a criminal offense in all instances and the improbability that the armed-violence provision will deter those who commit voluntary manslaughter, we conclude that the rule of lenity is appropriate here. We decline to apply the armed-violence statute literally to voluntary manslaughter. We disapprove of the appellate court’s decision in People v. Lynom (1981), 97 Ill. App. 3d 1113, modified by supervisory order on denial of leave to appeal (1982), 91 Ill. 2d 563 n.5, to the extent that it held that armed violence could be so applied.

Defendant argues that, in case of a reversal of his armed-violence conviction, we should remand the cause for resentencing on the manslaughter conviction, as the appellate court did, to guard against the possibility that the presence of the improper armed-violence conviction, on which a seven-year sentence was imposed, might have influenced the trial court’s sentence on the manslaughter charge, which was seven years and concurrent with the sentence for armed violence. He notes that seven years was the longest imprisonment that could be imposed for voluntary manslaughter absent an aggravating factor which might lead to an extended term (Ill. Rev. Stat. 1979, ch. 38, pars. 9-2(c), 1005-8-1(a)(5), 1005-8-2(a)(4)) and that no extended term was imposed.

We need not decide here whether the standard for a remand for resentencing is the inability to determine affirmatively from the record whether the sentence was influenced by the consideration of improper factors, as courts in this State have held in People v. Conover (1981), 84 Ill. 2d 400, People v. Bone (1982), 103 Ill. App. 3d 1066, People v. Filker (1981), 101 Ill. App. 3d 228, and People v. Green (1980), 83 Ill. App. 3d 982, or whether the defendant must come forward with convincing evidence that the judge or jury was so influenced, as the State suggests, relying upon People v. Donaldson (1982), 91 Ill. 2d 164, and People v. Miles (1981), 96 Ill. App. 3d 721. The record in this case satisfies the latter standard. The emphasis the sentencing judge placed upon the defendant’s use of a gun persuades us that he was influenced by this circumstance in deciding the length of the sentence for voluntary manslaughter. The court referred to the defendant’s use of a gun in the following language in finding him guilty of manslaughter and armed violence:

“*** Why people run around the streets with guns loaded is beyond me. Don’t go around the street with a loaded gun even if you’re talking about shooting target pistol two days hence.
No question about it, a very small man. Apparently, the gun is the thing that makes him feel power, and apparently a loaded gun even makes him feel taller, and the sad thing about it is we have two individuals in the street who should be friends.
What happens, we have a fight, an altercation, and the defendant by way of having his so-called tough gun next to him shoots and kills the man during the course of the dispute.”

At the sentencing hearing, the judge stated immediately before announcing the sentence:

“THE COURT: For some reason — you’re a small guy and apparently you think you’re a tough guy. One of the big things that I fear about small guys is attempting to make yourself bigger, you carry a gun. That’s exactly what happened here, you carried a gun, you were acting tough and a fight ensued, you pulled the gun and you killed somebody, which is sad. Basically, that is the story of your whole life. *** And *** you got a violent temper, therefore, you can’t carry a gun or anything, you’ll get in trouble, the next guy will probably be you who dies.”

These comments were directed at the fact that the defendant used a gun, a factor which the trial judge obviously, but mistakenly, determined merited enhanced criminal punishment in the instant case. We therefore vacate the sentence and remand the cause to the circuit court for resentencing on the voluntary-manslaughter conviction. See People v. Green (1980), 83 Ill. App. 3d 982, 987.

For the reasons stated herein, rather than those set forth by the appellate court, we affirm the judgment of the appellate court.

Judgment affirmed.


text:
    (No. 56665.
    MACK C. STEPHENS v. THOMAS McBRIDE (Thomas McBride, Appellee, v. The City of Maywood, Appellant).

      Opinion filed October 4, 1983.

    Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago (John B. Murphey and Ronald S. Cope, of counsel), for appellant.
    Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago (James T. Ferrini, of counsel), for appellee.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Deputy State’s Attorney, and Myra J. Brown, Assistant State’s Attorney, both of Chicago, of counsel), for amicus curiae County of Cook.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Mack C. Stephens, plaintiff, filed an action in the circuit court of Cook County against defendant, Thomas McBride, alleging that he sustained injuries as the result of defendant’s negligent operation of his motor vehicle. Defendant filed a third-party complaint for contribution against the third-party defendant, the city of Maywood. (The third-party defendant states that it is a village, not a city, and therefore will be referred to as “the village.”) The circuit court allowed the village’s motion for summary judgment, the appellate court reversed (105 Ill. App. 3d 880), and we allowed the village’s petition for leave to appeal (87 Ill. 2d R. 315).

On May 18, 1978, plaintiff’s motorcycle and defendant’s automobile collided at the intersection of Legion Street and Fourth Avenue in Maywood. Defendant’s insurer sent a letter, dated October 3, 1978, to Maywood's village clerk. The letter, which bears the stamp “Received Oct. 4, 1978 — Village Clerk,” states:

“A vehicular accident occurred at the intersection of Fourth Avenue and Legion Street, Maywood, on or about May 5, 1978. An automobile heading in a southerly direction on Fourth Avenue was struck by a motorcycle heading in an easterly direction on Legion Street. The automobile was operated by Mr. T. G. McBride of Maywood and the motorcycle was operated by Mack C. Stephens of Broadview.
Inspection of the accident scene reveals that shrubbery located on the northwest corner of the intersection is an obvious obstruction to the vision of motorists. Inspection reveals that the hazardous condition which has been maintained by the village at the corner, has been in existence for a considerable length of time.
The visual obstruction which exists at the described corner contributed in part to the cause of the accident described. Therefore, should suit be filed against our insured, as a result of the captioned accident, we would be obliged to join the Village of Maywood in any action based on the decision of Skinner vs. Reed - Prentice Division Package Machinery Co.
Please acknowledge.”

Plaintiff’s complaint, filed on December 10, 1979, alleged, inter alia, that defendant’s automobile had struck plaintiff’s motorcycle in an intersection and that defendant was traveling too fast, failed to observe plaintiff’s motorcycle, and failed to stop for a stop sign controlling defendant’s lane of traffic.

Defendant filed a “counterclaim and third-party complaint.” Count II was directed against the village of May-wood and alleged that the village was liable as a joint tortfeasor because it violated its own ordinances by permitting bushes and shrubs within 12 feet of an intersection to exceed 3 feet in height. The village moved for summary judgment against both plaintiff and defendant. Its motion states that although plaintiff’s complaint in its caption named the village as a defendant, it contained neither allegations of negligence on its part nor a prayer for any relief against it. It also stated that since neither the complaint nor the third-party complaint was filed within one year from the date that plaintiff sustained the injuries, neither party could maintain an action against the village because sections 8 — 102 and 8 — 103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 8 — 102, 8 — 103) precluded such a suit. The circuit court allowed the village’s motion for summary judgment against defendant and entered a finding that there was no just reason to delay enforcement or appeal of the order (87 Ill. 2d R. 304(a)).

The pertinent sections of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 8—101 through 8—103) provide:

“Sec. 8 — 101. No civil action may be commenced in any court against a local entity for any injury unless it is commenced within 2 years from the date that the injury was received or the cause of action accrued.”
“Sec. 8 — 102. Within 1 year from the date that the injury or cause of action, referred to in Sections 8 — 101, 8 — 102 and 8 — 103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must serve, either by personal service or by registered or certified mail, return receipt requested, a written notice on the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, giving in substance the following information: the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.”
“Sec. 8 — 103. If the notice under Section 8 — 102 is not served as provided therein, any such civil action commenced against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, shall be dismissed and the person to whom such cause of injury accrued shall be forever barred from further suing.”

The appellate court found it unnecessary to address the question whether an action for contribution could be considered a “tort” action because it believed that even if it were so considered “the public policy underlying the right of contribution outweighs the public policy underlying the notice provision of the Tort Immunity Act.” (105 Ill. App. 3d 880, 882.) The appellate court also held that the notice sent to the village by defendant’s insurer substantially complied with the requirements of the Tort Immunity Act. Additionally, the appellate court noted that section 8 — 102 requires that notice must be served within one year “from the date that the injury or cause of action *** was received or accrued ***,” and that since under section 2(b) of the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(b)) a cause of action for contribution does not accrue until a tortfeasor pays more than his pro rata share, defendant’s filing of his action constituted timely notice under the Tort Immunity Act.

The village asserts that the central issue in this case involves the construction of two statutes whose purposes conflict when applied to these facts. The village first argues that because both the Contribution Act and the Tort Immunity Act appear to apply in this case, the policies of ’ each act should be examined and balanced against each other. The village also argues that the Contribution Act, by its terms, precludes defendant from asserting a contribution claim. If the village is correct on its second assertion, there would be no need to balance the policies underlying each statute. Because of this, we examine the village’s second assertion first.

The village points out that it is undisputed that plaintiff was precluded from bringing an action against it. Section 2(a) of the Contribution Act provides for contribution where “2 or more persons- are subject 'to liability in tort arising out of - the same injury ***.” (Ill. Rev. Stat. 1979, ch. 70, par. 302(a).) Citing American Automobile Insurance Co. v. City of Minneapolis (1961), 259 Minn. 294, 107 N.W.2d 320, the village argues that it cannot be liable for contribution because plaintiff’s failure to give the village noticé of his injuries precludes its being “subject to liability.” This argument has been rejected by the vast majority of courts which have considered the question. The rationale of these decisions is that “liability” is determined at the time of the injury out of which the right to contribution arises, and not at the time the action for contribution is brought (see, e.g., New Amsterdam Casualty Co. v. Holmes (1st Cir. 1970), 435 F.2d 1232, 1234; Keleket X-Ray Corp. v. United States (D.C. Cir. 1960), 275 F.2d 167, 169; Ainsworth v. Berg (1948), 253 Wis. 438, 444, 34 N.W.2d 790, 792; Zarrella v. Miller (1966), 100 R.I. 545, 548, 217 A.2d 673, 675; Security Fire Protection Co. v. City of Ripley (Tenn. App. 1980), 608 S.W.2d 874, 878; Markey v. Skog (1974), 129 N.J. Super. 192, 204, 322 A.2d 513, 519-20) or “that a tort defendant’s indemnity action against a governmental entity is separate and distinct from the injured plaintiff’s action against the governmental entity and is not barred by failure to file a timely claim measured from the time of the accident.” (People ex rel. Department of Transportation v. Superior Court (1980), 26 Cal. 3d 744, 754, 608 P.2d 673, 679, 163 Cal. Rptr. 585, 591; see cases collected therein (26 Cal. 3d 744, 752-55, 608 P.2d 673, 678-80, 163 Cal. Rptr. 585, 590-92); see also Horan, Contribution In Illinois: Skinner v. Reed-Prentice and Senate Bill 308, 61 Chi. B. Rec. 331, 332-33 (1980).) We agree with both these rationales and reject the contention that defendant is precluded from seeking contribution under the Contribution Act solely because, at the time he filed his third-party complaint for contribution, plaintiff was precluded from recovering from the village.

The village contends that the appellate court’s decision abrogates the protection granted by the notice requirements contained in sections 8 — 101 through 8 — 103 in any case in which there is a co-tortfeasor with the municipal tortfeasor. The village argues that while the appellate court purportedly balanced the competing public policies underlying the Contribution Act and the Tort Immunity Act, it failed to give adequate weight to the policies underlying the latter act.

Defendant contends that the notice provisions contained in the Tort Immunity Act apply only to the injured party and not to the party seeking indemnity or contribution. Defendant points out that the notice provisions of the Tort Immunity Act require information such as the extent of the injuries and the treating hospitals (see Ill. Rev. Stat. 1979, ch. 85, par. 8 — 102) that ordinarily would be known only to the injured party, and not to a codefendant of the municipality. Defendant argues that it would be inequitable to permit a plaintiff’s failure to give notice to a governmental entity covered by the Tort Immunity Act to bar a defendant’s right to contribution against such a governmental entity. Alternatively, defendant contends that the notice given on October 3, 1978, sufficiently complied with the requirements of section 8 — 102, and that, in any event, the third-party complaint, filed within four months of the filing of the original suit, constituted timely notice since defendant’s cause of action for contribution will not accrue until he pays a disproportionate share of his liability to the injured party.

We are of the opinion that the Tort Immunity Act’s notice provisions do not apply to an action for contribution. The General Assembly enacted the Local Governmental and Governmental Employees Tort Immunity Act as its second legislative response to this court’s decision in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11. (See generally Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U. HI. L.F. 919, 930-34; Baum, Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act, 1966 U. Ill. L.E 981.) The doctrine of contribution was recognized in this jurisdiction in 1977 when this court decided Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1. The rule adopted in Skinner was codified and clarified by the General Assembly in 1979 in the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). The Governmental Tort Immunity Act was enacted prior to our decision in Skinner and did not purport to deal with contribution actions.

The Tort Immunity Act provides that notice be given by “any person who is about to commence any civil action for damages on account of [an] injury ***.” As noted before, much of the information required by section 8 — 102 would ordinarily be available only to the injured party. Moreover, to require that a defendant who brings a contribution action against a governmental entity give notice containing the information required by the statute within one year after its cause of action for contribution accrues would be of questionable value. Obviously, one of the purposes of the notice provision is to allow the governmental entity the opportunity to investigate the scene of the occurrence to determine if it was, in fact, liable and to preserve any pertinent evidence in order to defend against a potential claim. This purpose would obviously not be furthered by requiring a co-tortfeasor to give notice after its cause of action for contribution accrues, since this oftentimes could be years after the accident has occurred.

If, as the village asserts, the policies underlying the two acts must be compared to determine which policies should prevail (see Horan, Contribution in Illinois: Skinner v. Reed-Prentice and Senate Bill 308, 61 Chi. B. Rec. 331, 332 (1980); Note, Contribution Among Joint Tortfeasors When One Tortfeasor Enjoys a Special Defense Against Action By the Injured Party, 52 Cornell L.Q. 407, 413 (1967); Note, Contribution Among Negligent Tortfeasors: The New Rule and Beyond, 55 Neb. L. Rev. 383, 396 (1976)) we agree with the appellate court that the policies underlying the Contribution Act should prevail.

In Skinner v. Reed-Prentice Division Package Machin ery Co. (1977), 70 Ill. 2d 1, 13, this court noted the central policy underlying the right to contribution:

“We agree with Dean Prosser that ‘[t]here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiffs whim or spite, or his collusion with the other wrongdoer, while the latter goes scot free.’ Prosser, Torts sec. 50, at 307 (4th ed. 1971).”

This same “obvious lack of sense and justice” would arise if a codefendant were precluded from seeking contribution from a governmental entity because of the plaintiff’s failure to give timely notice pursuant to section 8 — 102. Accord, People ex rel. Department of Transportation v. Superior Court (1980), 26 Cal. 3d 744, 760-61, 608 P.2d 673, 684, 163 Cal. Rptr. 585, 596; Olsen v. Jones (Iowa 1973), 209 N.W.2d 64, 65; Royal Car Wash Co. v. Mayor & Council (Del. 1968), 240 A.2d 144, 145-46; Keleket X-Ray Corp. v. United States (D.C. Cir. 1960), 275 F.2d 167, 169.

On the other hand, the loss of protection to the village if the notice provisions are held inapplicable is insignificant when compared to defendant’s total loss of his right to contribution if plaintiff’s failure to give timely notice were held to bar defendant’s claim.

It is possible that, as the result of our holding that notice was not required, governmental entities will lose some of the protection afforded by the Tort Immunity Act. We are of the opinion, however, that the lost protection will not be as serious or extensive as envisaged by the village or by amicus. There is merit to the argument that the protections granted by the notice provisions in tort immunity acts are necessary because a governmental entity, unlike a private entity, cannot ordinarily avoid the risks created by its activities by simply ceasing to engage in those activities. (Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U. Ill. L.F. 919, 923; Baum, Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act, 1966 U. Ill. L.F. 981, 986.) Timely notice allows the governmental entity the opportunity to examine the location of the occurrence at an early date so that conditions do not change and evidence does not become stale, to plan its budget in light of prospective liabilities, to settle claims and avoid costly civil litigation, and to correct the alleged defective condition so that future injuries and liabilities may be avoided. (Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 293; King v. Johnson (1970), 47 Ill. 2d 247, 250-51; People ex rel. Department of Transportation v. Superior Court (1980), 26 Cal. 3d 744, 766, 608 P.2d 673, 687, 163 Cal. Rptr. 585, 599 (Clark, J., dissenting); Corboy, Shielding the Plaintiffs Achilles Heel: Tort Claim Notices to Governmental Entities, 28 De Paul L. Rev. 609, 612 (1979).) In view of the fact that under the provisions of section 8 — 102 a governmental entity need not be given notice for almost a year after the occurrence it can hardly be contended that the statute necessarily assures an opportunity to conduct an inspection immediately after the injury is sustained. We are of the opinion that failing to apply the notice requirements to a defendant seeking contribution from a governmental entity will not result in disaster for those entities.

Contrary to the contentions of the village and amicus, we conclude that our decision here does not permit the injured plaintiff to recover indirectly from the governmental entity although he is precluded from directly recovering from it. A similar argument was considered in People ex rel. Department of Transportation v. Superior Court. The Supreme Court of California noted that the plaintiff would still be barred from recovering directly from the governmental defendant, and if he failed to prove that the nongovernmental defendant was liable, or if that defendant were insolvent, the plaintiff would be able to recover nothing, either directly or indirectly, from the governmental defendant. Moreover, the doctrine of joint and several liability allows the plaintiff to recover fully for his injuries from the nongovernmental defendant whether or not that defendant can recover from the governmental defendant. As this court has recently reaffirmed the viability of the doctrine of joint and several liability (Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104), plaintiff gains nothing if defendant is permitted to recover contribution from the village. See People ex rel. Department of Transportation v. Superior Court (1980), 26 Cal. 3d 744, 761, 608 P.2d 673, 684, 163 Cal. Rptr. 585, 596.

The village, in its reply brief, argues that defendant’s public policy argument is in reality an argument that the application of the doctrine of joint and several liability in this case is inequitable. The village notes that this issue has been raised in Coney v. J. L. G. Industries, Inc. (1983), 97 Ill. 2d 104, and that if this court “modifies the concept of joint and several liability so that ‘no entity will pay more than its determined share’ of a common liability,” the question of whether McBride will be forced to pay more than his fair share due to the failures of plaintiff to give timely notice will be rendered moot. Subsequent to the submission of briefs in this case, this court decided Coney v. J. L. G. Industries, Inc., and, as previously noted, declined to modify the doctrine of joint and several liability.

Because we hold that the notice provisions contained in the Tort Immunity Act are inapplicable to a defendant seeking contribution from a governmental entity covered by the Act, we need not reach the question whether the notice sent to the village by defendant’s insurer constituted sufficient notice under section 8 — 102 of the Act.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.


author: JUSTICE CLARK

text:
    (No. 56901.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES CAFFREY, Appellee.

      Opinion filed October 4, 1983.

      Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Michael B. Weinstein, Assistant Attorney General, of Chicago, and Michael E. Shabat, Joan S. Cherry and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
    Patrick A. Tuite, of Chicago, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Defendant, Charles Caffrey, was arrested on January 5, 1982, and charged with violation of the Illinois statute outlawing syndicated gambling (Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1). The defendant was accused of accepting numerous bets on the results of football and basketball games. An offer of proof at a pretrial hearing established that all of the bets were placed on the afternoon and early evening of the day of the arrest. An indictment was returned on January 29, 1982. The circuit court of Cook County granted defendant’s motion to dismiss on the grounds that the syndicated-gambling statute was unconstitutionally vague. A direct appeal to this court was taken pursuant to Illinois Supreme Court Rule 302(a) (87 Ill. 2d R. 302(a)).

The circuit court held that section 28 — 1.1 was unconstitutionally vague because the statute does not fix any time limit for the accumulation of bets. Section 28— 1.1(b) defines “syndicated gambling” as engaging in the business of bookmaking. Section 28 — 1.1(d) provides in pertinent part:

“A person engages in bookmaking when he receives or accepts more than five bets or wagers upon the result of any trials or contests of skill, *** chance, casualty unknown or contingent event whatsoever, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid to such bookmaker on account thereof shall exceed $2,000. Bookmaking is the receiving or accepting of such bets or wagers regardless of the form or manner in which the bookmaker records them.” Ill. Rev. Stat. 1981, ch. 38, par. 28—1.1(d).

Two issues are presented’ on appeal: (1) whether the circuit court erred in allowing the defendant to challenge the constitutionality of a statute based on the application of a hypothetical situation; (2) whether the syndicated-gambling statute is unconstitutionally vague.

Defendant urges this court to invalidate the syndicated-gambling statute because the statute could be applied to certain hypothetical situations in a fashion that would violate the fifth and fourteenth amendments to the United States Constitution (due process guarantees of the fifth amendment made applicable to the States by the fourteenth amendment), as well as article I, section 2, of the Illinois Constitution (Illinois’ constitutional guarantee of due process). (U.S. Const, amends. V, XIV; Ill. Const. 1970, art. I, sec. 2). Defendant argues that an individual could have accepted a bet on the 1945 World Series and taken subsequent bets on sporting events in 1955, 1965, 1975 and 1980, and be found guilty of syndicated gambling under the terms of section 28 — 1.1. We find this argument to be without merit, and hold that the statute, as applied to this defendant, gives adequate constitutional protection. The mere possibility that a situation could arise in the future that would raise more serious constitutional questions cannot be used by this defendant to escape criminal prosecution. (People v. Holder (1983), 96 Ill. 2d 444.) The Supreme Court has noted:

“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma (1973), 413 U.S. 601, 610, 37 L. Ed. 2d 830, 839, 93 S. Ct. 2908, 2915.

Section 28 — 1.1 has been applied to other defendants without violating constitutional guarantees of due process. In People v. Greenman (1976), 38 Ill. App. 3d 734, the court affirmed the conviction of an individual who had accepted 16 bets totaling more than $3,200 in the course of one day. The court reasoned that the absence of a time limit on accepting bets could not be used as a valid defense, since the defendant’s conduct was clearly within the proscription of the statute. It is possible to conjure up situations so remote and unique as to render nearly every statute violative of constitutional protections but that is not a valid reason to end the criminal prosecution of a defendant whose conduct clearly falls within the bounds set by section 28-1.1.

We turn to the second issue presented in this appeal. Defendant urges this court to invalidate the syndicated-gambling statute on the grounds that the statute is unconstitutionally vague on its face. A criminal statute violates the requirement of due process if it fails to give adequate notice as to what action or conduct is proscribed. (People v. Vandiver (1971), 51 Ill. 2d 525.) No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. (Lanzetta v. New Jersey (1939), 306 U.S. 451, 453, 83 L. Ed. 888, 890, 59 S. Ct. 618, 619.) This court has consistently held that the United States and Illinois constitutions do not require impossible levels of specificity in penal statutes, but only that the statute convey sufficiently definite warnings that can be understood when measured by common understanding and practices (People v. Dednam (1973), 55 Ill. 2d 565, 567-68). Statutory words are presumed to have their ordinary and popularly understood meanings. (People v. Schwartz (1976), 64 Ill. 2d 275, 280.) Justice Marshall has noted: “Condemned to the use of words, we can never expect mathematical certainty from our language.” (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294, 2300.) Finally, statutes enjoy a presumption of constitutionality. Livingston v. Ogilvie (1969), 43 Ill. 2d 9, 12; United States v. Cohen Grocery Co. (1921), 255 U.S. 81, 92-93, 65 L. Ed. 516, 522, 41 S. Ct. 298, 301.

Defendant attacks the constitutionality of section 28— 1.1 on three levels: first, he argues that the definition of “bookmaking” is so vague that it gives no clear warning of the proscribed conduct. However, a careful reading of the statute indicates that this contention is unwarranted. Section 28 — 1.1 gives a precise description of the number of bets and dollar value of such bets that constitute felonious activity in Illinois. The words contained in the syndicated gambling statute are sufficiently definite and are subject to reasonable interpretation by persons of ordinary intelligence. This is all that is constitutionally required. (United States v. Harriss (1954), 347 U.S. 612, 617, 98 L. Ed. 989, 996, 74 S. Ct. 808, 812.) Defendant provides examples of Illinois statutes that have been invalidated for vague terminology. While our appellate court has struck down statutes that made it a crime to have “small quantities” of drugs (People v. McPherson (1978), 65 Ill. App. 3d 772), or to “visit” a gambling house (City of Peoria v. McMorrow (1980), 87 Ill. App. 3d 524), the statute being challenged in the case at bar is far more specific. Section 28 — 1.1 does not prohibit “small quantities” of bets, but provides a threshold level of five bets totaling more than $2,000.

Second, defendant submits that the comparable Federal law (18 U.S.C. sec. 1955 (1970)) and New York’s syndicated gambling statute (N.Y. Penal Law sec. 225.10 (1980)) contain time limits in gambling violations that are not found in the Illinois statute. Defendant maintains that such time limits are essential to prevent the aggregation of small bets over a lifetime to produce a felony. However, the fact that there may be borderline cases with a degree of uncertainty does not render the statute unconstitutional as to conduct about which no uncertainty exists. People v. Witzkowski (1972), 53 Ill. 2d 216, 219.

The Federal statute does provide a time limit but does not indicate a minimum number of bets. It appears that the Illinois statute meets constitutional guarantees of due process although it is not identical to the Federal statute in all respects. This court has upheld reasonable attempts by the State legislature to delineate the limits of criminal conduct. In People v. Raby (1968), 40 Ill. 2d 392, this court rejected a challenge that an Illinois criminal statute was invalid by reason of vagueness. The court noted: “It is true that section 26—1(a) does not attempt to particularize all of the myriad kinds of conduct that may fall within the statute. The legislature deliberately chose to frame the provision in general terms, prompted by the futility of an effort to anticipate and enumerate all of the methods of disrupting public order that fertile minds might devise.” 40 Ill. 2d 392, 396.

Finally, defendant argues that one section of the syndicated-gambling statute provides a time limit, whereas the section that the defendant was charged under does not. Section 28 — l.l(cX2) provides, in pertinent part:

“A person ‘operates a policy game’ when he knowingly uses any premises or property for the purpose of receiving or knowingly does receive *** written ‘policy game’ records, made or used over any period of time ***.” Ill. Rev. Stat. 1981, ch. 38, par. 28 — 1.1(c)(2).

Defendant argues that subsection (d) of the syndicated-gambling statute is invalid because it does not designate the time limit for the five bets, whereas subsection (c) states that a “policy game” can be detected “over any period of time.” However, subsection (c) does not provide for a time limit. “Any period of time” does not limit the time frame of the offense. In support of his contention, defendant cites State v. Baker (La. 1978), 359 So. 2d 110. In Baker, the Supreme Court of Louisiana invalidated a State statute that allowed aggregation of worthless checks in order to meet a statutory minimum for a felony charge. The court held the statute unconstitutionally vague because it was uncertain in meaning and allowed for arbitrary enforcement. Although the factual situation in Baker is somewhat similar to the instant case, we are not persuaded that this view should be followed in Hlinois. The overwhelming body of judicial opinion from courts in Illinois, as well as the United States Supreme Court, indicates that a statute should not be held void due to vagueness unless the intent of the legislature cannot be inferred from the face of the statute. As this court noted in City of Rockford v. Grayned (1970), 46 Ill. 2d 492, 494: “While the ordinance may be susceptible to unconstitutional application, its constitutionality does not depend on conjectured misapplication.”

We therefore conclude that section 28 — 1.1 is not unconstitutional on its face or as applied to this defendant. The judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: JUSTICE WARD

text:
    (No. 57134.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RANDY RINK, Appellant.

      Opinion filed October 4, 1983.

      G. Joseph Weller, Deputy Defender, of the Office of the State Appellate Defender, of Elgin (Marilyn Martin, of Chicago, of counsel), for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko, Deputy Director, and Marshall Stevens, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for the People.
   JUSTICE WARD

delivered the opinion of the court:

This direct appeal from a judgment of the circuit court of Du Page County was brought by the defendant, Rándy Rink, under Rule 603 (73 Ill. 2d R. 603). The circuit court held section 104 — 28(a) of “An Act to add Sections *** 104 — 10 through 104 — 29 to *** the ‘Code of Criminal Procedure of 1963’ ***” (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 28(a)) (hereafter referred to as the Act) to be unconstitutional. The Act became effective on December 28, 1979, and sets out a comprehensive scheme of procedures for defendants charged with a crime who are unfit to stand trial or to plead. The section held to be invalid established procedures in cases of defendants such as Randy Rink, who, before the effective date of the Act, had been found to be unfit.

The defendant was indicted on December 17, 1970, for the murder of his father, and for aggravated battery upon his mother. On February 10, 1971, he was found by a jury to be mentally unfit to stand trial. Pursuant to the then-effective provisions of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 104 — 3, repealed by Pub. Act 77 — 2097, sec. 8 — 5—1 (eff. Jan. 1, 1973), 1972 Ill. Laws 836), he was committed to the Department of Mental Health for the duration of his condition. He has since been in the custody of that department and its successor, the Department of Mental Health and Developmental Disabilities (hereafter the Department).

As stated, the Act sets out a comprehensive scheme of procedures for criminal defendants who are found unfit to stand trial or to plead. In providing for those defendants who, prior to the effective date of the Act, were found to be unfit, section 104 — 27 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 27) requires that, within 180 days of the effective date of the Act, the Department compile a report for the courts as to each unfit defendant in its custody on the effective date of the Act. Section 104 — 28 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 28), part (a) of which was the provision held unconstitutional by the circuit court here, provides:

“(a) Upon reviewing the report, the court shall determine whether the defendant has been in the custody of the [Department] for a period of time equal to the length of time that the defendant would have been required to serve, less good time, before becoming eligible for parole or mandatory supervised release had he been convicted of the most serious offense charged and had he received the maximum sentence therefor. If the court so finds, it shall dismiss the charges against the defendant. If the defendant has not been committed pursuant to the Mental Health and Developmental Disabilities Code [Ill. Rev. Stat. 1979, ch. 911/2, par. 1 — 100 et seq.], the court shall order him discharged or shall order a hearing to be conducted forthwith pursuant to the provisions of the Code. ***
(b) If the court finds that a defendant has been in the custody of the [Department] for a period less than that specified in paragraph (a) of this Section, the court shall conduct a hearing *** to redetermine the issue of the defendant’s fitness to stand trial or to plead. If the defendant is fit, the matter shall be set for trial. If the court finds that the defendant is unfit, it shall proceed pursuant to Section 104 — 20 or 104 — 23 [which apply to those found unfit under the Act, and which are explained below], provided that a defendant who is still unfit and who has been in the custody of the [Department] for a period of more than one year from the date of the finding of unfitness shall be immediately subject to the provisions of Section 104 — 23.” (Emphasis added.).

Section 104 — 20 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 20) provides for periodic hearings to inform the court of the progress of defendants who are undergoing treatment. Section 104 — 23 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 23), on the other hand, concerns the defendants who remain unfit one year after the initial finding of unfitness, or about whom the court has determined that there is no substantial probability of attaining fitness, within a year of the finding of unfitness.

One of the dispositions provided for in section 104 — 23 is a “discharge hearing.” This hearing may be requested by the defendant at any time, or by the State where the defendant has remained unfit for a year after the original finding of unfitness or where it has been found that there is no substantial probability that the defendant will attain fitness within a year of the finding of unfitness. The details of the hearing are set out in section 104 — 25 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 25). Its purpose is “to determine the sufficiency of the evidence” of the defendant’s guilt of the crimes with which he is charged. If the evidence presented at the hearing fails to establish the defendant’s guilt beyond a reasonable doubt, or if he is found not guilty by reason of insanity, the court is to enter a judgment of acquittal. If the State sustains its burden, however, the defendant may be remanded for a period of treatment longer than the one-year period from the finding of unfitness provided for in section 104 — 23. If the State sustains its burden upon a charge of murder, the treatment period may be extended up to five years.

Pursuant to the foregoing provisions, the Department prepared a report on Randy Rink. The report stated that the defendant had been at Chester Mental Health Center for the past nine years. The circuit court of Du Page County then conducted a hearing and determined that the defendant had not been in the custody of the Department for a period of time equal to the length of time that he would have been required to serve, minus good time, before becoming eligible for parole- or mandatory supervised release, had the defendant been convicted of murder and received the maximum sentence. Too, the court found that the defendant was still unfit and that there was no substantial probability that he would become fit within a year.

Acting on requests by the defendant and the State, a discharge hearing was held. The court found that the State had proved that the defendant was sane at the time and was guilty of murder beyond a reasonable doubt. The court found, too, that the defendant was in need of treatment, and the defendant was remanded to Chester Mental Health Center for five years of treatment.

The defendant’s motion for a new trial was denied. The defendant then moved that his “sentence” of five years of treatment be reconsidered. The court denied the motion to reconsider and at the same time, without specifying reasons, held that section 104 — 28(a) was unconstitutional. In holding so, the court appears to have accepted an argument of the State that the provision in the section for dismissal of charges was in violation of the principle of the separation of powers.

The constitutionality of section 104 — 28(a) is the principal issue here. The State contends that the circuit court correctly held the section unconstitutional, because the section is, in effect, a legislative grant of amnesty that encroaches upon the executive branch’s power to pardon. Too, the State says that the section unconstitutionally trespasses upon and interferes with the State’s Attorney’s power to charge the commission of crimes.

The State’s argument is founded on its assumption, which apparently the trial court also acted on, that the dismissal required under the statute is to be a dismissal with prejudice. The State in oral argument before us acknowledged, though, that it would also be reasonable to interpret the section of the Act as providing for dismissal of charges with leave to reinstate. That interpretation would be constitutional, the State says. We judge that section 104 — 28(a) does, in fact, provide for a dismissal with leave to reinstate.

The fundamental in statutory construction is to ascertain the intention of the legislature and then to give effect to it. (In re Griffin (1982), 92 Ill. 2d 48, 52; People v. Beam (1979), 74 Ill. 2d 240, 242.) Here, the intent of the legislature is not clear from the language of the Act, which is, of course, the best source for determining legislative intent. (Schutzenhofer v. Granite City Steel Co. (1982), 93 Ill. 2d 208, 211-12; People v. Brown (1982), 92 Ill. 2d 248, 255.) The section does not state whether the dismissal is to be with prejudice or with leave to reinstate. In other places in the Act where the legislature mandates the dismissal of charges, it specifies whether the dismissal is with prejudice or with leave to reinstate. Ill. Rev. Stat., 1980 Supp., ch. 38, pars. 104-23(b)(2),(3), 104-25(f)(2).

Attempting to determine the intendment of the legislature in section 104 — 28(a) by considering it in relation to other provisions of the Act also does not yield an answer. One may speculate that the dismissal called for in section 104 — 28(a) was to be a final disposition of the charges against those found to have been unfit before the Act became effective. This would not be congruent, though, with the Act’s provisions for those found unfit after the effective date of the Act. In the cases of those defendants committed to the Department pursuant to a hearing under the Mental Health and Developmental Disabilities Code, the Act expressly requires that the criminal charges are to be dismissed with leave to reinstate. Ill. Rev. Stat., 1980 Supp., ch. 38, pars. 104—23(b)(3), 104—25(f)(2).

The legislature’s intent was manifested, however, through an amendment to the Act, which was approved and became effective on September 24, 1981 (“An Act in relation to the fitness of criminal defendants to stand trial” (Pub. Act 82—577, 1981 Ill. Laws 2883)). In that amendment, the legislature amended section 104 — 28(a) to provide expressly that the dismissal would be with leave to reinstate. Ill. Rev. Stat. 1981, ch. 38, par. 104 — 28(a).

An amendment to a statute is an appropriate source for determining the legislative intent. (People v. Bratcher (1976), 63 Ill. 2d 534, 543; People v. Scott (1974), 57 Ill. 2d 353, 358.) The amendment here was enacted shortly after the circuit court’s pronouncement of unconstitutionality. We have held in an analogous situation that if an amendment is enacted soon after there were controversies as to the interpretation of the statute it amends, it is logical and reasonable to regard the amendment as a legislative interpretation of the original statute. (Gill v. Miller (1983), 94 Ill. 2d 52, 58, quoting 1A A. Sutherland, Statutory Construction sec. 22.31 (4th ed. 1972).) (Of course, the legislature, after a final judicial interpretation of legislative intent, cannot effect a change in that construction by a later declaration of what it did intend (In re Marriage of Cohn (1982), 93 Ill. 2d 190, 203; Illinois Bell Telephone Co. v. Fair Employment Practices Com. (1980), 81 Ill. 2d 136, 142; Roth v. Yackley (1979), 77 Ill. 2d 423, 428-29).) We are not unmindful that, in general, penal statutes are to be strictly construed in favor of the accused (People v. Isaacs (1967), 37 Ill. 2d 205, 215), but “they must not be construed so rigidly as to defeat the intent of the legislature.” People v. Bratcher (1976), 63 Ill. 2d 534, 543.

As we stated above, the State has no constitutional objection to that construction. There is a suggestion faintly advanced in the State’s brief that such an interpretation could nevertheless be invalid as an interference with the State’s Attorney’s authority to charge the commission of crimes, but there is no merit to such a position. No decision is cited by the State in which a statute was held unconstitutional on that ground. We do not perceive how the statute here would be any more vulnerable in this regard than a statute of limitations or a speedy-trial statute. The circuit court erred in holding the provision to be unconstitutional.

Apart from the question of constitutionality, the defendant has raised several other questions relating to the discharge hearing and the disposition of his cause. As to the hearing, he claims that the evidence was insufficient to show him sane and guilty of the offense beyond a reasonable doubt. The record rejects the claim. The evidence was overwhelming that the defendant stabbed his father to death and injured his mother when she intervened in the straggle between the defendant and her husband. As to sanity, there was competent, expert testimony that the defendant could not be considered insane on the night of the killing. Moreover, all of the testimony regarding the defendant’s behavior on that night, namely testimony by the defendant’s mother and police officers, was that the defendant was coherent, able to communicate clearly, and understood what was happening. These witnesses testified that except for the altercation with his father, the cause of which is unknown, the defendant exhibited no unusual behavior on that night. The decision of the finder of fact on the issue of the defendant’s sanity will not be reversed unless the determination made is so improbable or unsatisfactory as to raise a reasonable doubt of its correctness. People v. Carlson (1980), 79 Ill. 2d 564, 580; People v. Ward (1975), 61 Ill. 2d 559, 568.

The defendant claims, too, that there were several evidentiary errors at the hearing. Three of the claims involve statements of the prosecutor in closing argument that the defendant says were misrepresentations of the evidence. While those statements appear to have been legitimate argument and not misrepresentations of evidence, we need not decide the defendant’s claims. He did not object to any of the statements and thus waived the questions. By failing to object in a timely manner in the trial court, a defendant waives any irregularities in the argument of the prosecutor (People v. Lewis (1981), 88 Ill. 2d 129, 149; People v. Dukett (1974), 56 Ill. 2d 432, 442) or errors in the admission of evidence (People v. Carraro (1979), 77 Ill. 2d 75, 81; People v. Linus (1971), 48 Ill. 2d 349, 354).

Another matter complained of is that the State’s expert witness was permitted to state that the defendant’s expert’s opinion as to sanity was not based upon medically accepted practice. This question, too, was waived. Though the defense objected to the line of questioning, the ground of objection was that the questions focused upon the defense psychiatrist’s examination report rather than on the opinion he had given in his testimony at the hearing. It is axiomatic that when a specific objection is made all other grounds of objection are waived. People v. Williams (1983), 97 Ill. 2d 252, 288; E. Cleary & M. Graham, Illinois Evidence sec. 103.2, at 6 (3d ed. 1979).

At the conclusion of the hearing, as we have stated, the circuit court found that the State had proved the defendant sane and guilty of murder beyond a reasonable doubt. Both sides agree that the discharge hearing provided for in the concerned section is to be an “innocence only” hearing, that is to say, a proceeding to determine only whether to enter a judgment of acquittal, not to make a determination of guilt. The question of guilt is to be deferred until the defendant is fit to stand trial. This is clear from the language of section 104 — 25 of the Act. Because the court here, in its judgment, made an express finding of the defendant’s guilt, we remand the cause with directions to vacate the finding and to modify the judgment in conformity with the Act.

As a final contention, the defendant says, as he did in his motion to reconsider his “sentence,” that considering the years he has been in custody, the five-year term of extended treatment exceeds the maximum term permitted under the Act. Section 104—25(f)(5) of the Act (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 25(f)(5)) provides: “In no event may the treatment period be extended to exceed the maximum sentence to which the defendant would have been subject had he or she been convicted in a criminal proceeding.” The argument is grounded upon a calculation as to when the defendant would have been eligible for parole had he been convicted of murder and sentenced and, apparently, his opinion that parole eligibility marks the maximum allowable term of custody and treatment.

We need not interpret the meaning of section 104— 25(f)(5) in this respect. The State, mindful of the due process concerns regarding the confinement of unfit defendants discussed in Jackson v. Indiana (1972), 406 U.S. 715, 32 L. Ed. 2d 435, 92 S. Ct. 1845, agrees with the defendant’s claim that he has now been in custody for an excessive time under the Act and recommends that he be released and that a hearing be conducted regarding commitment under the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1979, ch. 911/2, par. 1—100 et seq.). Accordingly, we direct the circuit court, on remand, to vacate the order for extended treatment and to enter an order in keeping with the State’s suggestion.

For the reasons given, the judgment of the circuit court holding section 104 — 28(a) of the Act unconstitutional is reversed, and the cause is remanded with the directions set out herein.

Reversed and remanded, with directions.