author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Darryl Eugene Strey, Defendant-Appellant.
    Gen. Nos. 53,257-53,259. (Consolidated.)
    First District, First Division.
    December 19, 1969.
    Rehearing denied January 8, 1970.
    Philip S. Lieb and Phillip J. Rotche, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum, and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In three indictments defendant was charged with the salé and dispensing of narcotic drugs. On each indictment he pleaded guilty to the lesser charge of unlawful possession of narcotic drugs. A stipulation was entered into between the State, defendant and his counsel as to the facts and that the narcotic drug was marijuana. On each charge defendant was sentenced to two to four years, to be served concurrently.

On appeal defendant contends that he was not given a mitigation hearing, and that the three sentences should be vacated and the causes remanded to the trial court with directions that defendant be given an opportunity to offer evidence in mitigation prior to being resentenced, as provided for in chapter 38, § 1-7 (g).

The record shows that on April 16, 1968, the trial court admonished defendant Strey as to the significance and consequences of his change of plea from not guilty to guilty and, after a recess for a “conference,” the following took place:

THE COURT: Let the record show the defendant Strey has been advised of the consequences of his pleas of guilty to these three indictments and after being so advised persists in his plea. The pleas therefore will be accepted. There will be a finding of guilty in all three indictments as charged in the indictment.

After a recitation of the stipulated facts, the record shows the following:

MR. WARD: “In aggravation the defendants do not have any prior convictions of record. I would impress upon the Court the fact that the charge was sale of drugs and dispensing drugs, which carries the same penalty under the Code, ten to life. The State has accepted pleas on the lesser included offense of possession. Nonetheless the State must recommend, in the case of Mr. Strey recommend a term of years not less than two nor more than five in the Illinois State Penitentiary, Mr. Spietz, two to three years in the Illinois State Penitentiary, such terms to run concurrent.”
THE COURT: “Do you wish, Mr. Lucas [defendant’s counsel], to argue in mitigation on Thursday morning?”
MR. LUCAS: “Yes, Judge.”
THE COURT: “It was indicated in the conference Mr. Lucas wished time to argue in mitigation before sentencing.”
THE COURT: “I will withhold judgment on the finding and aggravation and sentencing until 9:30 Thursday morning, April 18th.”

On April 18th, the record shows the following:

THE CLERK: “People of the State of Illinois vs. Darryl Strey and Candice Spietz.”
THE COURT: “There has been a judgment on the finding. The only thing left is sentencing, hearing in aggravation and mitigation.”
MR. LUCAS: “If the Court please, I think I would like to have a conference.”
THE COURT: “You wish another conference?”
MR. LUCAS: “Yes.”

After a recess was taken, the record shows the following:

THE COURT: “Mr. State’s Attorney, sentence and aggravation and mitigation on Strey.”
MR. WARD: “Yes. I believe the State did put in its aggravation the last time.”
THE COURT: “What is the recommendation?”
MR. WARD: “My recommendation, to refresh the Court’s memory here on the defendant Strey, both primarily upon the fact that there are three indictments here, one for sale and two for dispensing, which as the Court is well aware is the same as sale under the statute, the sale is ten years to life, based upon this, your Honor, and based upon the fact that the State is accepting the plea on the possession charges on the indictments, the State is recommending .a term of years not less than two nor more than five in the Illinois State Penitentiary.”
THE COURT: “Both defendants have no record?”
MR. WARD: “As far as I can ascertain at this time, there is no record on either defendant.”
THE COURT: . . . “As far as Strey who has three indictments of dispensing narcotics or possession of narcotics, the sentence will be not less than two and not more than four years in the Illinois State Penitentiary.”

The court then proceeded to inform the defendants of their right of appeal from the judgment of the court and ordered that the sentences were to run concurrently. Subsequent to the foregoing a motion for a new trial on behalf of Strey was presented on May 15, 1968, and the hearing on that motion included the following:

THE COURT: “I don’t think it’s necessary. We did have a hearing in aggravation and mitigation. He was informed of his rights to a trial by jury. He was advised of the consequences of his plea. The plea of guilty appeared voluntarily made to me. The motion for a new trial and motion in arrest of judgment is denied.”

Defendant contends that the law of this state requires the trial court to grant a request for mitigation hearing and may not deny the defendant his right unless a specific waiver is expressed. He further argues that only an express waiver may be considered, and that the trial court may not infer waiver from collateral considerations.

Applying the foregoing principle to the instant case defendant argues, “On the date set for mitigation hearing, the record merely indicates the prosecutor’s advice to the court that the defendant had no prior criminal background. Without further comment from the defendant or his attorney, the court then immediately thereafter sentenced the defendant. The record is absent any evidence of the matters permitted in mitigation and required before intelligent sentence could be imposed.”

Defendant’s authorities to establish that the waiver of a mitigation hearing must be express and that inferential waivers are rejected include: People v. Spaulding, 75 Ill App2d 278, 220 NE2d 331 (1966); People v. Smith, 62 Ill App2d 73, 210 NE2d 574 (1965); People v. Harris, 66 Ill App2d 46, 213 NE2d 588 (1966); and People v. Sessions, 95 Ill App2d 17, 238 NE2d 94 (1968). In People v. Spaulding, it is said (p 281):

“It is clear to us that paragraph 1-7 (g) contemplates that a hearing in aggravation and mitigation is an essential part of the sentencing process. While it may be waived, it was not expressly waived in this case. Participation in a probation hearing is not a waiver of a hearing in mitigation and aggravation, for these involve separate areas of inquiry.”

In People v. Smith, supra, it is said (p 79):

“It should not be the responsibility of the trial court to initiate the inquiry or to insert material into the record so that a defendant may possibly benefit from it on appeal. The obligation to preserve matters in the record which are relied upon to reverse a judgment should remain with the party who seeks the reversal.”

And at page 80:

“The purpose of section 1-7 (g) is to require the trial court, when so requested, to receive evidence about the defendant’s life and record before pronouncing sentence upon him. The statute should be liberally applied and any motion or clear suggestion by the defendant pointing to this end should be regarded as a request that the court consider these factors before determining the defendant’s punishment. There is no particular formula for making the request. The phrase ‘a hearing in mitigation’ is not essential. . . .
“In the present case there was no evidence during the trial which would have made a mitigation hearing superfluous, and inasmuch as the motion for a presentence investigation was denied we believe the court should have asked the defendant if he had anything to present by way of mitigation. . . .
“We do not know whether the defendant has evidence to present in mitigation. We assume he has because his alternative prayer is that the cause be remanded for that purpose. But whether he has or not, he is entitled to a hearing and to a sentence which is based on that hearing as well as on the evidence of the case.”

In People v. Harris, supra, it is said (p 53):

“There was no evidence offered in mitigation or aggravation, nor does the record show that defendant was advised of his right to offer such evidence, or that he waived the right so to do.”

And on page 54:

“In the absence of a showing in the record that the defendant was advised of his right to offer evidence in mitigation, and upon being so advised, expressly waived that right, the defendant was entitled to offer such evidence and have it included in the record.”

In People v. Sessions, supra, it is said (p 27):

“Because the holding of a hearing in aggravation and mitigation is a mandatory procedure prior to the imposition of sentence, we hold that the State has the burden of showing that the defendant expressly and understandingly waived his right to such a hearing.”

From the foregoing, defendant argues, “absent an expressed waiver, and in light of the specific request for mitigation hearing, such hearing must be given, as had he had nothing to offer there would not be a request.”

We think the guidelines to be applied here are expressed in People v. Nelson, 41 Ill2d 364, 243 NE2d 225 (1968), and People v. Novotny, 41 Ill2d 401, 244 NE2d 182 (1968). In People v. Nelson, it is said (pp 367-68):

“The statute with respect to hearings in mitigation and aggravation provides: Tor the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation and mitigation of the offense.’ (Ill Rev Stats 1965, chap 38, par 1-7 (g).) It will be noted that the use of the phrase ‘if any* contemplates the possibility of a waiver of hearing in mitigation by a defendant.
“The burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. We have held that it is incumbent on the defendant to request hearing, and failure to do so constitutes a waiver. (People v. Muniz, 31 I112d 130, 138.) After hearing the testimony of the sheriff’s chief investigator of bad conduct in jail and a statement by the prosecutor to the effect that the defendant was sentenced in 1962 to two years in Missouri, neither of whom was challenged, an attempt to show another charge pending was, upon objection, refused by the court. When defendant’s counsel was asked if he had any witnesses he replied that he did not and when asked if he had any comments he replied T have no comments, your honor.’ A hearing in mitigation and aggravation was had, defendant was given ample opportunity to be heard and his failure to take advantage of it constituted a waiver.”

In People v. Novotny, supra, which involved the question of defendant’s waiver of a jury trial, it is said (p 410):

“ ‘It is settled law that when an accused is present in court and represented by competent counsel, he is bound by the actions and concessions of counsel, and that even constitutional rights may be waived in the court of a trial.’ . . . Even though the result of this waiver may now be unsatisfactory to defendant, we do not agree that it can be said to be unconstitutional.”

The State argues that “upon looking at the record it becomes clear that the only thing said in mitigation or aggravation was that the defendant had no prior record. True, this was uttered by the State’s Attorney, but that does not change the nature of the statement. Obviously, it can only be considered mitigating. There can be no interpretation that could justify a reading of this as being aggravation.”

The State further argues that on the date of sentencing there was plenty of time for appellant’s counsel to make an argument in mitigation, and he chose not to do so, and whatever the reason for the silence “it is more than clear that appellant was in no way unfairly deprived of his right to a hearing.”

We think it is clear from the colloquy between court and counsel, previously set forth in detail, that the trial court continued the matter of the sentencing for two days to give defendant’s counsel “time to argue in mitigation and before sentencing.” When the hearing for that purpose was called on April 18, the trial court announced, “The only thing left is sentencing, hearing in aggravation and mitigation,” and defendant’s counsel then requested “another conference,” and a recess was taken for the purpose. When the hearing resumed the court again said, “Mr. State’s Attorney, sentence and aggravation and mitigation on Strey.” During this entire time defendant was present in court with his attorney, and both defendant and his attorney remained silent and made no offer of any evidence in mitigation. We hold that this was an express waiver by defendant of his right to be heard at the mitigation hearing. As said in People v. Nelson, supra (p 869):

“The defendant waived his right to be further heard at the mitigation hearing and it was neither neeessary nor appropriate to remand for further hearing. To hold otherwise would permit a defendant to stand silent and, if not pleased with his sentence, later invoke the aid of an appellate tribunal to secure a reduction in sentence. The propriety of the sentence must be based upon the present record. The sentence imposed was not excessive and it should not have been vacated.”

For the reasons given, the judgment of conviction is affirmed.

Affirmed.

ADESKO, P. J. and BURMAN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earnest Harris (Impleaded), Defendant-Appellant.
    Gen. No. 53,600. (Abstract of Decision.)
    First District, First Division.
    December 19, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by JUSTICE MUEPHY. Not to be published in full.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gilbert Hall (Impleaded), Defendant-Appellant.
    Gen. No. 53,616.
    First District, First Division.
    December 19, 1969.
    Rehearing denied January 8, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard F. Sprague, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

The defendant Gilbert Hall and his wife, Helen P. Hall, were jointly indicted for the murder of Fannie Walker. After Helen Hall’s trial was severed upon motion of her attorney, the case proceeded to trial against Gilbert Hall. Defendant was found guilty of voluntary manslaughter after a jury trial and was sentenced to a term of not less than eight nor more than twelve years in the penitentiary. On this appeal, the defendant has presented the following issues for review:

(1) Whether the State failed to prove the defendant guilty beyond a reasonable doubt;

(2) That error was committed when the jury was instructed upon and returned a verdict of voluntary manslaughter;

(3) Did the trial court err in refusing to allow defendant’s testimony regarding his state of mind at the time of the killing?; and

(4) Did a statement of the prosecutor made in his opening statement unduly prejudice the jury so that the defendant was prevented from receiving a fair and impartial trial?

After a careful review of the evidence in light of the issues presented, we will elaborate upon the evidence presented in the record which we feel is most pertinent to our decision.

The State introduced the testimony of Floyd McDonald, who was an eyewitness to the occurrence in question. The witness testified that on the evening of June 9, 1967, he had occasion to be at a Leader Cleaners, located at 4235 West Roosevelt Rd., in Chicago. He entered the store a few minutes before 7:00 p. m. and first observed the defendant’s wife, Helen P. Hall, standing behind the counter. He gave her some cleaning tickets and next observed the decedent, Fannie Walker, coming from the back of the store followed by the defendant who was carrying some dry-cleaned suits to the front of the cleaners. McDonald then stated that the decedent, as clerk of this store, picked up two bundles of his shirts and placed them on the counter. The decedent then walked toward the back of the store and soon returned toward the front with a gun in her hand, stating to the defendant and his wife, “Get you, get out.” According to McDonald, the defendant then ran from the store, reappearing in a few seconds with a gun in his. hand and said to the decedent, “Drop it, drop it.” The decedent responded by firing twice and defendant fired back. After the decedent slumped down behind the counter, the defendant took a purse and he and his wife ran out of the store. On cross-examination the witness insisted that no shots were fired by the decedent prior to the defendant’s reentry into the store and demand that she drop the gun.

The State next established the movements of the defendant and his wife for the remainder of that evening, through a Marie Murdock, who was visited by them that evening and where a purse, two guns and Mrs. Hall’s dress were left by them in this witness’ apartment. This witness further testified as to the police recovery of these objects. The arresting officer gave testimony as to defendant’s arrest on June 11, 1967, following a phone call from defendant’s mother. The officer further testified to certain inculpatory statements made by defendant during his interrogation while in custody.

Helen P. Hall, the coindictee with the defendant, was called by the State after the court and her attorney had advised her of her rights. This witness established that she went to the location in question in the company of the defendant on June 9, 1967, sometime before 7:00 p. m. that evening. She stated that they entered the store and the defendant conversed with a couple in the store for about five to ten minutes, whereupon the couple left and the only individuals remaining were the witness, defendant and the decedent. Mrs. Hall testified further that her husband told the decedent he had lost his cleaning ticket to some clothes he had left in the store; that Mrs. Walker went to look for the clothes and her husband followed her to the back of the premises; that she heard Mrs. Walker, scream and she then walked behind the counter and that Mr. McDonald then walked into the store and handed her some cleaning tickets which she handed to the decedent after the latter had returned to the front of the store followed by defendant. The decedent then searched for McDonald’s clothes and when the decedent returned to the counter she had a gun and told the defendant to leave the store. Then, according to Mrs. Hall, the defendant turned to leave and the deceased fired a shot, whereupon the defendant returned the fire from his own gun. After the decedent fell, the defendant left and then came back to the store, took the decedent’s gun from her hand and then took his wife, with her purse, and left the store. The witness then testified as to the occurrences after leaving the store with defendant and proceeding to one of their friend’s home and then to the Murdock apartment.

On cross-examination, Mrs. Hall recalled that she and her husband spoke with an individual for about five minutes in front of the cléaning store and they then proceeded into the store to speak to a couple whom defendant knew; that defendant and deceased looked for some clothes in the back of the store and that the scream of Mrs. Walker was not too loud; that when the deceased and defendant returned to the front of the store, Mr. McDonald was now present; that during this time the deceased did not ask either Mrs. Hall or defendant to leave the premises; that deceased returned to the back of the store and after coming up front, she had a gun and then told defendant to leave, and he turned toward the door. The deceased then fired five or six times at defendant. On redirect, the witness stated that defendant fired twice at the deceased.

In response to the State’s case, the defendant testified as the only witness for the defense. He testified that before entering the cleaning store on the night in question, he conversed with a man named Johnson about four doors from the store. After conversing for five to ten minutes, defendant stated he proceeded down the street until he saw a friend of his and his wife in the Leader Cleaners Store at 4235 West Roosevelt Rd.; that he and his wife entered to speak with them and noticed the deceased, who was behind the counter of the store. Defendant stated he had known Mrs. Walker for about two months; that he had been in the store on numerous occasions. The defendant then asked his friends if they would buy tickets to a talent show and asked the same question of Mrs. Walker. The defendant’s friend and his wife left after three to four minutes of conversation. Mrs. Walker responded that she would buy some tickets and then asked defendant to help bring some clothes to the front of the store. While in the back of the store, defendant noticed he had no tickets. The deceased then “started real loud” and told defendant he was always joking with her. Then defendant carried some clothes to the front of the store and noticed Mr. McDonald in the front of the store. The defendant’s wife handed Fannie Walker McDonald’s cleaning ticket and Mrs. Walker went to the back and picked up some clothes and returned to the front of the store with a gun in her hand, stating to the defendant to “Get out of here.” Defendant said he turned to leave and the deceased fired, whereupon he turned around and pulled out his gun, asking Mrs. Walker twice to put down her gun. The deceased responded with another shot at defendant, who then “lifted the gun up that I had, shut my eyes and shot up.” Defense counsel made several attempts to question defendant as to how he felt, thought and feared when he shot at the deceased. Objections to these questions were sustained with the court stating that defense counsel could not inquire into the defendant’s mental state. Defendant then stated he took the deceased’s gun, his wife’s purse and then fled the store with his wife. He further testified as to his whereabouts after leaving the store in substantially the same manner as his wife had previously testified.

On cross-examination, the defendant could only identify the individual he talked to on the street as Johnson and the person in the store as Johnnie, although the defendant claimed he knew the latter individual all of his life. He also stated he had run numerous errands for Mrs. Walker because she was a friend of his. Defendant further reiterated his story concerning the time when deceased returned with a gun pointed at him and the subsequent gunfire. He also maintained that he fired with the gun pointed up and his eyes closed; that when he looked at Mrs. Walker she was bleeding and that she subsequently slumped over onto the floor. The rest of his testimony corroborated the other witnesses as to the subsequent events of that evening.

In view of this evidence, the defendant contends that the State failed to sustain the burden of proving the defendant guilty beyond a reasonable doubt of the crime charged and that error was committed in allowing the jury to consider and return a voluntary manslaughter conviction. The defendant reasons that the State’s occurrence witnesses were inconsistent in their version of the shooting and that one of the witnesses corroborated the defendant’s testimony as to the events of June 9, 1967. Defendant’s theory is that the evidence presented could only justify a finding of guilty of murder or an acquittal based on self-defense and that the instructions given to the jury precipitated a compromise verdict in the jurors’ deliberations.

The State argues that any inconsistency presented by the evidence goes to the credibility of the witnesses, which should be left to the jury for decision. In this regard we are mindful of cases cited by the State which establish that the issue of self-defense is a jury question which should be respected by a reviewing court unless reasonable doubt exists. People v. Turner, 82 Ill App2d 10, 226 NE2d 667 (1967); People v. Owens, 73 Ill App2d 108, 219 NE2d 733 (1966). The State further argues, as the defendant has done, that the submission of a voluntary manslaughter issue to the jury depends upon the evidence presented. People v. McMurry, 64 Ill App2d 248, 212 NE2d 7 (1965); People v. Wheeler, 57 Ill App2d 452, 206 NE2d 729 (1965).

With these principles in mind and after extensive review of the evidence as presented, we conclude that reversible error was committed in the trial of this cause. Assuming the jury accepted the testimony of Floyd McDonald, this evidence shows that the defendant did not fire his gun until he had asked deceased to drop her weapon and he had been fired upon by the deceased. If defendant did in fact leave the store and quickly reappear with his weapon, this is not sufficient to show that he was the aggressor in this situation, because his wife had remained on the premises with a woman who was brandishing a revolver. On the other hand, if the jury accepted Mrs. Hall’s testimony, then the evidence would show that the decedent fired at defendant, who was obeying the order to leave and then turned with his gun and returned the fire. This was substantially the defendant’s version of the occurrence, only varying in that he fired after a second shot by the decedent and his requests that she drop her gun.

In our opinion this evidence sufficiently raised the defense of self-defense to the murder charge and that a reasonable doubt exists as to the State’s evidence in rebutting this defense. We agree with the defendant’s contention that the robbery motive which the State attempted to prove was without merit. The rule is that the judgment of conviction must be sustained on evidence which removes all reasonable doubt, as in People v. Coulson, 13 Ill2d 290, 149 NE2d 96 (1958), where the Supreme Court stated, at page 296:

“[T]he duty of this court [is] to examine the evidence in a criminal case, and if it is so improbable or unsatisfactory as to raise a serious doubt of defendant’s guilt the conviction will be reversed.”

See also People v. Sheppard, 402 Ill 347, 83 NE2d 587 (1949); People v. Tribbett, 41 Ill2d 267, 242 NE2d 249 (1968).

Furthermore, we are of the opinion that the court improperly submitted the issue of voluntary manslaughter to the jury, because the evidence cannot be considered as creating a heat of passion situation that justified such a verdict. People v. Smith, 404 111 350, 88 NE2d 834 (1949). This record presents a situation of either guilty of murder or a finding of innocence by reason of self-defense. The defendant’s contention that the jury reached a compromise verdict on voluntary manslaughter is well taken. We conclude that reversible error was committed in this regard. The applicable rule is that where a jury has been erroneously instructed as to voluntary manslaughter and has returned a verdict for that charge, the cause will be reversed without remand since the jury has acquitted defendant upon the murder charge. People v. Smith, supra; People v. Newman, 360 Ill 226, 195 NE 645 (1935); People v. McMurry, supra.

Based on our decision for reversal of this case, it is unnecessary to discuss the third and fourth issues raised by defendant. Therefore, we conclude that the judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

MURPHY and BURMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rhenette Cosby, Defendant-Appellant.
    Gen. No. 53,657.
    First District, First Division.
    December 19, 1969.
    Philip Michael Basvic, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and L. Michael Getty, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Rhenette Cosby, was found guilty in a bench trial of unlawful use of weapons and fined $50, having been charged with the violation of the Illinois Criminal Code of 1967, chapter 38, section 24-1 (a) (4) which provides:

“(a) A person commits the offense of unlawful use of weapons when he knowingly: .... (4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm. . . .”

On appeal the defendant contends: (1) That he was not proven guilty beyond all reasonable doubt; (2) That he cannot be convicted of unlawful use of weapons when the weapon is not concealed and when it is found in defendant’s fixed place of business; and (3) That the trial court committed prejudicial error when defendant was convicted of a crime for which he was not charged.

Defendant, a cab driver, was working for Hill Cab Company. The arresting officer observed the cab backing on Blackstone Street through an intersection at Marquette Ed., and stopped it at 6630 Blackstone Street in the City of Chicago. The driver had a valid driver’s license and his Vehicle Identification Number was in order. The second officer, while looking in the front seat of the cab, saw something protruding from underneath a leather coat or jacket belonging to the defendant, which appeared to the officer to be the butt end of a gun. The officer testified that he observed about a x of the butt end of a gun. The defendant was then arrested and charged with unlawful use of weapons and failing to register a firearm within ten days of purchase.

At the trial defendant moved to suppress the evidence, which motion was denied. The trial court found defendant guilty of unlawful use of weapons and fined him $50, but dismissed the defendant as to failing to register the firearm.

Appellant contends that the weapon was not concealed. In support of this contention he cites People v. Niemoth, 322 Ill 51, 152 NE 537 (1926), which is inapplicable. In Niemoth, the arresting officer noticed an automobile parked alongside the curb. Niemoth was sitting in the front seat behind the steering wheel. The guns were found on the floor of his car in back of the front seat. The court said:

“The proof in this case does not show that the guns lying on the floor of the automobile were where the accused could have reached them without moving from his position in the front seat.”

Defendant also relies on People v. Liss, 406 Ill 419, 94 NE2d 320 (1950). In Liss defendant drove through a red light. The arresting officer found a gun beneath the front seat of the car, at about the middle thereof, six inches under the seat. The distance between the floor board and the bottom of the seat was about three inches. The court in Liss said:

“It is not sufficient to come under this statute that a defendant be in possession of a deadly weapon, but the weapon must be concealed and be readily available for use.”

The court further said, at page 424:

“We think a reasonable construction of this statute, as indicated in the Niemoth case, is that there must be concealment of the weapon, and it must be on or about the person; and it must be so placed that it may be used without appreciable change in the position of the owner. It requires no great wisdom to know it is impossible to reach a pistol under a front seat of a car without changing position at the wheel, and it is also necessary to bend forward to reach under the seat.”

It might be noted herein that although the Liss case does not apply to the instant case, there was a strong dissent of two of the justices of the Illinois Supreme Court.

In People v. Gant, 84 Ill App2d 208, 228 NE2d 582 (1967) defendant was arrested while riding with another man in the back seat of a cab. One of the arresting officers heard a thud from inside the cab. This officer on cross-examination contradicted his earlier statement and testified that he did not recall if the gun was in the defendant’s hand or whether he had only heard it drop to the floor. The defendant contended on appeal that there was no proof that he concealed a weapon “on or about his person.” The court said:

“That portion of the cross-examination of Officer Wright in the instant case, revealing that he was no longer sure that he saw the gun in the defendant’s hand, but that he merely heard a thud as he approached the vehicle, does not constitute evidence that it was defendant who dropped the gun to the floor or that he attempted to conceal the weapon. The evidence is not adequate to prove guilt beyond a reasonable doubt, and the judgment of conviction must be reversed.”

The factual situation in the instant case is similar to the case of People v. Accardi, 58 Ill App2d 364, 208 NE 2d 43 (1965). In this case the police officer, observing a parked car, pulled alongside and observed the defendant slumped over on the passenger side of the vehicle. The officer noticed a bulge in the defendant’s left rear pocket and above the bulge, a black metallic object which appeared to be the butt of a revolver. A motion to suppress was denied and defendant was found guilty of unlawful use of a weapon in violation of the same provision of the Criminal Code as in the instant case (Ill Rev Stats, c 38, § 24-l (a) (4)). In this case the court said:

“The gist of the crime under the statute is unlawful possession of a weapon. An offense was committed in the presence of the officer if he saw part of the revolver and the resulting arrest, search and seizure would be justified.”

The court further said:

“The trial court, being the trier of fact, was in a position to determine the credibility and weight to be accorded the officer’s testimony. No other witnesses were called, and we cannot say that the court’s judgment, in denying the motion to suppress, rested on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence. The trial court accepted the officer’s testimony that at the time here involved, he reasonably believed the object protruding from defendant’s pocket was the butt of a revolver or pistol. Under the circumstances presented in the record we find no basis for substituting our judgment for that of the trial court.”

Defendant’s contention that the weapon was found in his fixed place of business is totally without merit. Defendant does not direct our attention to any decisions of the courts in support of his contention. In our opinion “fixed place of business” means exactly what it says—a place that is stationary or permanent.

Finally, defendant maintains that he was convicted of a crime for which he was not charged. The record shows the finding of the court as follows:

“The Court finds the defendant guilty in the manner and form as charged in the complaint herein.”

For the above reasons, the judgment of the trial court is hereby affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    Roger Hulsebus, a Minor, by His Father and Next Friend, Robert Hulsebus, Plaintiff-Appellant, v. Joseph B. Russian and Arnold Thompson, Defendants-Appellees.
    Gen. No. 69-48.
    Second District.
    December 19, 1969.

      Reese, Schlueter & Ecklund, of Rockford, for appellant.
    Fearer & Nye, of Oregon, for appellees.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The plaintiff, a minor, brought suit against both defendants as a result of an automobile accident wherein he was injured while riding as a passenger in one of the three vehicles involved. The jury returned a verdict finding the defendant Thompson guilty and assessed damages in the sum of $25,000 but found the defendant Russian, not guilty. The trial court denied the plaintiff’s motion against the defendant Russian for a judgment n. o. v. or, in the alternative, a new trial. The plaintiff appeals from the order of denial only as it pertains to the defendant Russian. For the purpose of this appeal, defendant, as used herein, will refer to Joseph B. Russian.

The plaintiff requests this Court to reverse and remand this case for trial on damages only or, in the alternative, a new trial. To support his request, the plaintiff claims that (1) the defendant was guilty of negligence as a matter of law, and (2) the trial court committed error by a) .refusing certain instructions, b) allowing improper instructions, c) improperly excluding certain photographs from introduction into evidence, d) sustaining certain objections to plaintiff’s closing argument, and e) miscellaneous errors.

The defendant testified that he and his wife were driving southbound on Main Street just outside of Rockford, Illinois, looking for a dog kennel; that he had never been inside the kennel before but had passed it on prior occasions and was looking for the gravel driveway entrance; that the pavement was wet; that about two miles from the scene of the accident, he noticed the Thompson vehicle behind him, also traveling southbound on the two-lane highway and that the Thompson vehicle was closing the distance between their two vehicles. Defendant stated that, as he rounded a curve before the accident scene, he let up on the gas and started to slow down; that he put his right turn signal on and applied his brakes hard, at which time the back of his vehicle began to “fishtail”; that he released the brakes and steered to the right-hand side of the road in an attempt to get out of the way of the Thompson vehicle; that he was struck in the rear and pushed off the road into a ditch; that, prior to the impact, he had let up on the brakes and straightened his wheels; and that his wife warned him that an impact was imminent.

Thompson testified that he was traveling about 40 to 45 miles per hour and was five- to seven-car lengths behind the defendant’s vehicle; that as he rounded the curve, he noticed the defendant’s car fishtailing and its brake lights going on and then off, but that he saw no turn signal; that he immediately applied his power brakes hard, his wheels locked and he then started pumping his brakes; that his ear started to swerve towards the northbound lane so he let up on his brakes and turned his wheel; that he knew an impact with the defendant’s vehicle was imminent so he sought to hit bumpers with it; that as he approached the rear of the defendant’s vehicle, it fishtailed to the right; that he overtook it along the side; that when the rear end of defendant’s vehicle came back, its left rear fender hit plaintiff’s right fender and that his vehicle traveled into the opposite lane and struck the Jarrett vehicle which was traveling northbound. Roger Hulsebus was a passenger in the right front seat of the Jarrett vehicle.

The jury received testimony from four doctors, a deputy sheriff, a state trooper who came to the scene of the accident, a resident of the neighborhood who went to the scene after the accident, another person who came upon the scene, the wives of both of the defendants, driver Jarrett, two passengers of the Jarrett vehicle, the plaintiff, his mother and both defendants. Photographs of the scene, the vehicles and of the plaintiff’s injuries were also introduced. No purpose will be served by repeating the testimony of each witness. Contrary to plaintiff’s position, however, there is conflict among the witnesses about the details of the occurrence.

The plaintiff argues that the trial court, as a matter of law, should have ruled that the defendant was guilty of negligence based upon the evidence in the case. To do so the court would have had to invoke the Pedrick rule (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967)) which is:

.. In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

From our review of the record, we are unable to find that the trial court erred in its decision on this point.

Plaintiff contends that the trial court erred by refusing to give the following instruction:

“The defendant, Russian, admits that he endeavored to slow his car down on Route Two in the southbound lane, immediately prior to the collision between his car and the Thompson vehicle, and he further admits that the Thompson vehicle and the Jarrett vehicle, in which the plaintiff was riding, were in the northbound lane of traffic; but the defendant, Russian, denies that his acts or omissions to act constitute negligence.”

A similar instruction as it applied to the defendant Thompson was also refused. We fail to see the significance of the plaintiff’s position relative to the refusal of such an instruction, which applied only to Thompson, since the jury found against Thompson and, further, no appeal was taken from that portion of the case.

As the instruction applied to the defendant herein, the record discloses that the location of the accident and the deceleration of the defendant’s vehicle immediately prior to the collision did not become an issue in the case. First, the defendant’s answer admitted these facts and, second, the testimony of the defendant established these same factors. In addition, while Thompson was being examined under section 60 relative to the location of the accident, plaintiff’s counsel volunteered that “it is admitted in the pleadings” to which Thompson’s attorney replied, “Well, that’s all that’s necessary.” With this background, we are of the opinion that the trial court’s refusal of these instructions did not create prejudicial error.

Both the defendant and Thompson offered instructions to the effect that if the jury decided in their favor on the question of liability, it would have no occasion to consider the question of damages. Such instructions were given and the plaintiff argues, “that a duplication on this issue served to affect the jury in terms of their proper assessment of damages.” No citation of authority has been supplied and we find no basis for such conclusion. In addition, no objections were raised during the conference on instructions and such are, therefore, not well taken when interposed for the first time on review. Saunders v. Schultz, 20 Ill2d 301, 314, 170 NE2d 163 (1960); Hitt v. Langel, 93 Ill App2d 386, 394-395, 236 NE2d 118 (1968).

At the conference on jury instructions the defendant tendered Instruction Number 12 (not found in IPI) which read:

“The Court instructs the jury that you may, in considering the nature and extent of the plaintiff’s injury or damages, consider together with all the other facts and evidence whether or not the plaintiff did or did not avail himself of the use of seat belts and if he did not avail himself of the use of seat belts in the automobile in which he was riding what effect this had or might have had on the nature and extent of his injuries or damages.”

No objection was made at the time. However, the following morning before the jury was charged, plaintiff’s attorney objected to the giving of this instruction. The basis for the objection was that it singled out conduct on the part of the plaintiff for consideration by the jury and it inferred to the jury that the plaintiff was guilty of some degree of carelessness as a matter of law.

The trial court overruled the objection and gave the instruction as set out above.

This Court previously considered a similar issue raised in a trial regarding the use or nonuse of a seat belt. Mount v. McClellan, 91 Ill App2d 1, 5, 234 NE2d 329 (1968). In the opinion, this Court stated that whether a person has or has not availed himself of the use of seat belts would have no relevancy in determining the cause of an accident but:

“The use, or nonuse of seat belts, and expert testimony, if any, in relation thereto, is a circumstance which the trier of facts may consider, together with all other facts in evidence, in arriving at its conclusion as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain.”

It is argued that the instruction is calculated to infer some degree of carelessness on the part of the plaintiff. The instruction specifically relates to the effect that the use or nonuse of the seatbelt might have had “on the nature and extent of his injuries or damages.” Since the defendant was found not guilty on the question of liability, there would be no occasion for the jury to even consider this instruction.

Before commencing trial, color photographs, marked exhibits 1 through 4, were offered into evidence and, after objection by defendant as to exhibit 1, the trial court refused its admission. Exhibit 1 is a photograph, taken in the operating room, showing plaintiff’s head with a rubber and metal pipelike device inserted between his lips, his eyes closed and his face covered with what appears to be blood and dark mucus-type substance. By anyone’s description, the photograph discloses a gory and hideous sight.

The plaintiff maintains that the exhibit was necessary in order for the treating physician to testify as to his treatment. The record discloses that the doctor testified from his operating report, dictated by him, in great detail concerning the torn condition of the nose, the surrounding tissue and his efforts at reconstructing the nose. The balance of the photographs, showing the face with scars after healing, were admitted. We are of the opinion that the trial court properly exercised its discretion by excluding this exhibit from the evidence as being likely to enflame and prejudice the jury. This is especially so considering the detailed medical testimony describing the injury received. In any event, we fail to see what bearing the exhibit would have on the question of the defendant’s liability since he was found not guilty by the jury.

During closing argument by plaintiff’s counsel the following transpired:

“. . . remember this that when you get the instructions of the Court you are not entitled to allocate blame. It doesn’t make any difference if someone was five percent negligent and say Russian was ninety-five or that Thompson was ninety-five and Russian was five percent. They are both guilty.”
MR. MAYNARD: “If the Court please, I think that statement of counsel is misleading. I object to it.”
THE COURT: “I would sustain the objection.”
MR. MAYNARD: “The jury has the right to pick and choose between these defendants.”
THE COURT: “I think your argument is comparative negligence.”
MR. REESE: “That’s what I’m saying, that is not the law. They cannot compare the negligence, your Honor.
“You are not entitled to compare negligence of these two people, of these two defendants. You cannot compare the negligence.
“The verdict if you find that either one of them were negligent you are entitled to return a verdict against both of them.”
MR. MAYNARD: “Now wait a minute, that isn’t correct. I object to that.
MR. REESE: “If you find that both of them were negligent you are entitled to recover and return a verdict against both of them. You cannot take the negligence of one and compare as to the negligence of the other. . . .”

It is contended here that the statement by Thompson’s counsel, “. . . the jury has the right to pick and choose between these defendants,” along with the court’s comment, “. . . I think your argument is comparative negligence,” confused the jury on the point of whether it could hold one or both of the defendants liable regardless of the degree of negligence (if any) of each.

We cannot adhere to the plaintiff’s reasoning on this point. Confusion, if it in fact existed, was caused by the plaintiff himself. More important, the record discloses that the trial court, by its instructions properly informed the jury on the law where there is more than one defendant involved.

The plaintiff has categorized its final point as “miscellaneous” errors committed by the trial court. We find no substance in such alleged errors as they apply to the defendant herein.

For the reasons heretofore stated, the judgment of the trial court is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Sara M. Welch, Plaintiff-Appellee, v. Paulson’s Enterprises, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 69-70.
    Second District.
    December 19, 1969.
    Rehearing denied January 28, 1970.

      O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellant.
    Reid, Ochsenschlager, Murphy & Hupp, and George P. Lindner, of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff, Sara Welch, was awarded damages of $5,000 in a jury trial in the Circuit Court of Kane County for injuries suffered by her as a result of a fall as she left the defendant’s place of business.

On July 20, 1965, the plaintiff, then a widow 52 years of age, had been shopping with a woman friend and stopped at a tavern and restaurant operated by the defendant at the intersection of Douglas and Highland Avenues in Elgin. The two women entered the tavern at approximately 7:30 p. m. by way of an entrance on Highland and sat at a table near the bar, where they had two drinks each. The bar was crowded and dimly lit and they decided to eat at another restaurant.

As they began to leave, the friend returned to the table for her sweater and the plaintiff went on ahead through an exit on Douglas Street. The Douglas exit is through an inner door into a foyer or hallway and then through an outer door out to the street. There was no artificial lighting in the foyer but there was an octagonal window in the outer door. Immediately beyond the outer door was a step down to the sidewalk level. The intersection itself is in the business section of town and was well lighted. As the plaintiff stepped through the outer door onto the step she fell down, face first, onto the sidewalk and suffered serious and painful injuries.

The complaint, filed on July 19, 1967, alleged that the defendant had “negligently permitted one of the exits to be and remain improperly lit and negligently failed to warn patrons leaving the premises, including the plaintiff, of certain steps in said dimly lit area . . . .” After the trial, the complaint was amended by leave of court to include the additional allegation that the defendant “negligently permitted a step at its west entrance and exit-way to become and/or remain in a defective condition. . . .”

The defendant moved for a directed verdict at the close of the evidence for the plaintiff and again at the close of all the evidence. Both motions were denied and the jury returned with a verdict in favor of the plaintiff and assessed her damages in the sum of $5,000. On appeal, the defendant maintains that the cause should not have been submitted to the jury since there was insufficient evidence of negligence or that the negligence, if any, was the proximate cause of the plaintiff’s injuries.

It is undisputed that the owner or operator of of a restaurant or tavern is not an insurer of his customers’ safety but must exercise reasonable care to keep the premises in a safe condition. Donoho v. O’Connell’s, Inc., 13 Ill2d 113, 118, 148 NE2d 434. The liability of the defendant for the plaintiff’s injuries could only be predicated, therefore, on its proven negligence. Lubin v. Goldblatt Bros., Inc., 37 Ill App2d 437, 441, 186 NE2d 64; Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 473, 173 NE2d 443.

For the most part, the evidence introduced at the trial was uncontradicted. The defendant admits that there were no warning signs at the Douglas exit and that the foyer had no artificial light. The plaintiff admits that Douglas Street itself was “well lighted.” In her complaint, the plaintiff claims that the defendant was negligent in its failure to light the foyer or to warn patrons of the step beyond the outer door. The plaintiff testified on direct examination as follows:

“Mr. Lindner: Q. All right, so you opened the first door and then entered this little cubicle area that you told us about, right?
“A. Right.
“Q. Could you describe to the jury what the lighting was like in this cubicle area between the two doors?
“A. I would say it was dimly lighted.
“Q. And what did you do after you go into that area? What was your next move?
“A. Opened the other door.
“Q. And before you opened that door, did you see any signs of any warning whatsoever on that door?
“A. No, I didn’t.
“Q. And can you tell us what you did then as you opened the second door?
“A. As I opened the door there was a little threshold there, I would say maybe there was that much step (indicating). I stepped out on to the step, but —It was pretty light outside there with the street lights and everything.
“Q. All right. And did you then step out onto the outside step ?
“A. Yes.”

On cross-examination, she testified:

“Q. I understand. But you testified to the jury, there is no doubt that that doorway outside was well lighted?
“A. Outside, yes. In fact, very brightly.
“Q. And you saw the step when you stepped on it?
“A. Well, I don’t know. I opened the door.
“Q. And you saw the step ?
“A. I—
“Q. And stepped?
“A. I didn’t know the step was rough, I guess.
“Q. I didn’t ask you that, Mrs. Welch. You did see the step and you stepped on it, isn’t that right ma’am?
“A. Yes.
“Q. Isn’t that right?”

Even if the failure to light the foyer or provide warning of the step was negligence on the part of the defendant, it is clear that it was not the proximate cause of the plaintiff’s fall since she had passed through the foyer, and saw the threshold and stepped out onto it before she fell. Therefore, the plaintiff failed to maintain her cause of action on either of those two points.

The complaint further alleged that the defendant was negligent in that it permitted the step “to become and/or remain in a defective condition when it knew, or reasonably should have known, that to allow such step to remain in such a defective and rough condition would cause harm to the plaintiff and others using said entrance and exitway.”

The plaintiff was the only witness to testify as to the condition of the step. She stated as follows on direct examination:

“Q. What did you notice when your foot hit that step?
“A. I was at the step and it seemed to me sort of rough; I felt my foot slip.
“Mr. Puckett: I object.
“The Court: What is the objection?
“Mr. Puckett: I object, it’s a conclusion of the witness.
“Mr. Lindner: Judge, she can tell how it felt on her foot as she slipped.
“The Court: Overruled.
“Mr. Lindner: Q. Will you tell us what happened then, Mrs. Welch?
“A. Well, it just felt like my foot slipped and my ankle turned and down I went, face first.”

On cross-examination, the. plaintiff further testified:

“Q. And it’s your feeling now that your foot slipped?
“A. Right.
“Q. All right. Is it also a fact that you thought that your ankle turned at that time ?
“A. Well, it just seemed like it, yes.
“Q. All right. And down you went?
“A. That is right.”

The testimony that the step “seemed . . . sort of rough” or was “rough” was not, in our opinion, sufficient to establish that it was defective or unsafe. Thus, after considering all the evidence in the case at bar, in the aspect most favorable to the plaintiff, we find that this evidence so overwhelmingly favors the defendant that no contrary verdict based on this evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504.

Under the circumstances, we agree with the defendant that it was improper to submit the cause to the jury and therefore remand it to the trial court with directions to vacate the judgment and to enter judgment notwithstanding the verdict in favor of the defendant.

Reversed and remanded with directions.

DAVIS and SEIDENFELD, JJ., concur.


author: MR, JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James G. Jones, Defendant-Appellant.
    Gen. No. 53,599.
    First District, First Division.
    December 19, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR, JUSTICE MURPHY

delivered the opinion of the court.

Defendant Jones and Earnest Harris were jointly indicted on May 17, 1968, for the offense of burglary, in violation of chapter 38, § 19-1, Ill Rev Stats 1967. The Public Defender was appointed counsel for both defendants. When the case came on for trial on August 14, 1968, Harris pleaded guilty, and the trial proceeded as to Jones. A jury found Jones guilty, and he appeals contending (1) the court erred in denying him the right to produce an alibi witness pursuant to a notice given to the State, and (2) the sentence imposed on him is too severe and should be reduced.

The trial record shows that on May 8, 1968, Gervacio Torres was the owner of a grocery store at 1301 West Madison Street, Chicago. When he arrived at the store at about 7:00 a. m. that morning, he found the store burglarized, police there, and groceries, meats and cigarettes taken. The burglars had entered the store through a hole cut in the wall of an adjoining building at 1303 West Madison, used by the Bee Bindery Company as a storeroom.

At about 6:30 a. m. on May 8, Allen Stamps and Doc Little arrived for work at the Bee Bindery plant at 15 South Throop Street. They saw several strange men at the rear of 1301 and going in the back door of 1303. They knew the men were not employees of the Bee Bindery Company, and they flagged a squad car. As they talked to Officer Carlo, Earnest Harris came along carrying a box filled with meats and cigarettes. Officer Carlo arrested Harris and motioned to another police car to go to the rear of the building, where Officer John Harris observed defendant Jones coming down the rear sidewalk carrying another box containing meats and cigarettes. The defendant’s shoes and trousers were covered with a white dust. After Jones was arrested the police entered 1303 through the rear door. Immediately beyond the doorway there was a one and one-half by two-feet hole in the plaster wall, and there was plaster dust on the floor. The hole led into the grocery store at 1301.

Officer Harris testified that he arrested defendant Jones at the rear of the building; Officer Carlo testified that he saw the defendant at the rear of the building; and the witness Little stated that a person was arrested in the rear.

Defendant Jones testified and denied any involvement in the offense. He stated that he lived at 1307 West Madison Street with John Brown and his wife Lisa, and was standing on the corner of Madison and Throop waiting for a bus when he was arrested. In the course of his testimony Jones gave various residential addresses, and that the address where he lived was really 1308 and he made a mistake when he said 1307. He said he had plaster powder on his trouser legs because he worked with plastic powder at his place of work.

Earnest Harris, the codefendant, testified for the defendant and denied knowing Jones and denied that Jones participated in the burglary. He said he saw Jones waiting for a bus.

Conviction statements as to Harris and Jones were admitted in evidence and read to the jury. Jones was found guilty of burglary in October, 1960. Harris had been convicted of auto larceny and auto theft.

Initially considered is defendant’s contention that the trial court committed prejudicial error in excluding the testimony of defendant’s alibi witness. The record shows that on June 8, 1968, about two months prior to the trial on August 14, 1968, the State filed a notice requesting the defendants to “file and serve upon the prosecuting attorney a notice in writing of his intention to assert the defense of alibi,” pursuant to chapter 38, § 114-14, which provides that whenever a defendant proposes to offer in his defense “testimony to establish an alibi, such defendant shall, not less than 5 days before the trial of such cause, file and serve upon the prosecuting attorney a notice in writing of his intention to assert such alibi.”

On August 12, 1968, counsel for defendant gave notice to the State that Mr. John Brown of 1305 West Madison “may or may not be called” as a witness for the defense. At the trial on August 14, the court sustained a motion of the State which objected to the testimony of the alibi witness because the notice of the alibi witness was filed too late. The reason assigned by the State was that it did not have ample time to investigate because the address of the alibi witness “happens to be a laundromat and not a residence.”

On appeal defendant contends that the court “could have postponed the hearing for another day or two for the State to make its investigation. Instead he was denied the opportunity to produce his alibi witness. The evidence of this witness might well have been of great importance to the defendant and might even have saved him from being convicted. We view the court’s action as highly arbitrary and prejudicial to the defendant and resulted in denying the defendant a fair trial and deprived him of his constitutional rights.”

Defendant asserts that a short extension was feasible and “in line with the practice in this case of continuing the case at least 7 times before it came to trial on August 14. . . . After granting all these continuances one more would not have in any manner interfered with the administration of Justice. Not one of the 7 continuances was requested by the Defendant.”

On this point defendant’s authorities include: Brady v. Maryland, 373 US 83 (1963), where the court said (P 87):

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Bradley v. State, 227 Ind 181, 84 NE2d 580 (1949), where it is said (p 583):

“In other words, in this situation appellant, Bradley’s right to prove alibi remained unchanged and unaffected by the statute. Denying him the right to introduce this evidence, under the situation existing, constitutes reversible error.”

State v. Thayer, 124 Ohio St 1, 176 NE 656 (1931), where the evidence offered tending to establish defendant’s alibi was rejected by the court for the reason of failing to give a statutory 3-day notice. There it is said in a concurring opinion (p 659):

“The operative effect of the statute therefore as applied in this case deprived defendant of his rights under the due process provisions of the Constitution.”

After examining the provisions of section 114-14, we conclude that this section confers upon the trial court a broad discretion as to its application, and its rulings in this regard should not be upset on review unless there has been a plain abuse of discretion. Under the circumstances portrayed in this record, we find that the trial court did not abuse its discretion in sustaining the motion of the State.

Considered next is defendant’s contention that the sentence imposed on defendant Jones was too severe and should be reduced. Harris pleaded guilty and was sentenced to the penitentiary for a term of 6 to 12 years. After defendant Jones was found guilty, the same judge sentenced him to the penitentiary for a term of 10 to 20 years. Defendant argues that he was a tool and die set up man and ran his own machine; that his only conviction was in 1960; that Mr. Torres suffered no real loss; and a sentence of 10 to 20 years in the instant case was too severe for the offense involved.

In objecting to the reduction of defendant’s sentence, the State notes that it has been held repeatedly that “the authority given reviewing courts to reduce sentences imposed by trial judges ‘should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.'” People v. Caldwell, 39 Ill2d 346, 356, 236 NE 2d 706 (1968).

The State argues that “in the case at bar, the Common-Law Record indicates that the trial court heard such testimony regarding the aggravation and mitigation of the sentence. Such testimony, however, cannot be found in the Abstract or the Record. Thus, the Record shows nothing to infer that the sentence was excessive or that the trial court’s determination was unsound. In fact, the only information concerning the defendant Jones to be found is that he is thirty-four years old and that he had a prior conviction for burglary. There is nothing to illuminate his background, family, or personal history except his age and prior conviction which was shown in rebuttal. These factors hardly indicate that he is a bright rehabilitation prospect. From what the record contains, the sentence of ten to twenty years in the penitentiary was not too severe. Because of the absence of the defendant’s background, the reviewing court is not able to even consider whether the sentence was truly excessive. It is essential that an appellate court so empowered to reduce a sentence ‘have knowledge of the defendant’s moral character, life, family, occupation, and criminal record.’ People v. Evrard, 55 Ill App2d 270, 275 (1965). Without such information, reviewing courts are asked to make decisions in a vacuum. ‘The burden of presenting an adequate abstract and record rested upon the defendant and we are limited to the record of the trial court.’ People v. Smice, 79 Ill App2d 348, 354 (1967), and People ex rel. Coats v. Sain, 24 Ill2d 248, 250 (1962). The defendant failed to prepare for review a sufficient record of the trial court proceedings and so prevented this court from considering his contention.”

In general, we agree with the foregoing pronouncements. However, we are not persuaded that defendant’s failure to include in this record the details of the “mitigation and aggravation” hearing precludes this court in this case from considering defendant’s contention that his sentence was excessive. We do agree that our consideration of this issue is limited to the instant record in this court, and we take judicial notice of People v. Harris, 118 Ill App2d 159, 254 NE2d 837, a companion appeal by codefendant Harris, who was jointly indicted with defendant. With these limitations in mind we have considered defendant’s contention that his sentence is excessive.

Recently in People v. Nelson, 41 Ill2d 364, 368, 243 NE2d 225 (1968), our Supreme Court reviewed the right of the reviewing courts of Illinois to reduce punishment at the appellate level in this state after “a careful examination of the record to see if a case is a proper one for reduction,” and we have so examined the instant record.

The offense of burglary, of which both Harris and Jones stand guilty, was participated in by both and to the same extent. Both had criminal records, somewhat the same. Harris, who pleaded guilty, received a sentence of six to twelve years, and Jones, who exercised his right to a jury trial, was sentenced to ten to twenty years by the same judge. It seems to be a reasonable inference that Jones was penalized for exercising his constitutional rights.

We recognize that not every offense in a like category calls for an identical punishment. There may be a proper variation in sentences as between different offenders, depending upon the circumstances of the individual case. As a general rule, where the punishment for the offense is fixed by statute, that imposed in the sentence must conform thereto, and a sentence which conforms to statutory regulations is proper. Before an Appellate Court will interfere, it must be manifest from the record that the sentence is excessive and not justified by any reasonable view which might be taken of the record. (People v. Hobbs, 56 Ill App2d 93, 99, 205 NE2d 503 (1965).) Disparity of sentences between defendants does not, of itself, warrant the use of the power to. reduce a punishment imposed by the trial court. People v. Thompson, 36 Ill2d 478, 482, 224 NE2d 264 (1967).

With the foregoing principles in mind, and although defendant’s sentence is within the statutory range, we have concluded, after considering the nature of the offense and the attendant facts and circumstances here, that it is manifest from the instant record that the sentence is excessive and not justified by any reasonable view which might be taken of the record, and it calls for the exercise of the power to “reduce the punishment imposed by the trial court.” (Illinois Supreme Court Rule 615 (b) (4).) We believe fundamental fairness in sentencing requires a reduction of defendant’s sentence to the same as that of codefendant Harris.

For the reasons given, defendant’s conviction of burglary is affirmed and defendant’s sentence is reduced to a minimum of six years and a maximum of twelve years in the Illinois State Penitentiary. As modified, the judgment of the Circuit Court is affirmed.

Judgment, affirmed as modified.

ADESKO, P. J. and BURMAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Shir Apodaca, Defendant-Appellee.
    Gen. No. 53,928.
    First District, First Division.
    December 19, 1969.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    No brief for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendant was indicted for the offense of armed robbery. Prior to trial defendant’s motion to suppress was sustained, and the State appeals from that order. The question presented is the reasonableness of a search and seizure made without a search warrant.

The only witness at the hearing was Police Officer Thomas Glynn. He testified that during the early morning hours of January 23, 1966, he was notified that William Brown, a cab driver, was robbed near 5820 South Prairie. Officer Glynn and Ms partner arrived on the scene at approximately 1:20 a. m. They received a description from the victim and noticed that he was in his stocking feet. They observed two sets of footprints in the snow alongside the cab and followed them to an alley near 5849 South LaSalle. One set of footprints was made by shoes with a star on each heel, and the other set was made by a person in stocking feet. At 5829 South LaSalle the footprints made by the person in stocking feet went back in the direction of the robbery scene, and the starred footprints led to the north entrance of a two-flat building at 5849 South LaSalle Street.

The officers arrived at the building about 2:00 a. m. and called Sergeant McCarthy to the scene. The officers knocked on the door and were met by an occupant, Mrs. Green. They told her they were police officers checking an abandoned car and asked to speak to her husband. She replied that her boyfriend was there and took the officers upstairs, where they observed defendant sleeping on a couch. Defendant matched the description given by the cab driver as a male negro, 23 to 27, 5 feet, 9 inches tall, 175 pounds, a crew cut, and wearing a dark blue or black coat and horn-rimmed glasses. The officers observed a pair of shoes alongside the couch with a star on the heel, horn-rimmed glasses were on the end table a few feet away, and a gun was recovered from a jacket on a nearby table. Defendant was questioned and acknowledged that the shoes, glasses and jacket belonged to him. It is this evidence, together with $9 that was found, that was suppressed.

The State contends that the trial court erroneously held that the police officers lacked probable cause to enter the building where defendant was placed under arrest. It notes that the arrest was made within fifty minutes of the commission of the offense, after the police officers had traced footprints in the snow from the scene of the robbery to the building where defendant was found. It also notes that defendant’s footprints stood out due to a star on the heel of each shoe and were accompanied most of the way by the stocking footprints of the cab driver. Among the authorities in point are Warden v. Hayden, 387 US 294 (1967); People v. Adams, 36 Ill2d 492, 224 NE2d 252 (1967); and People v. Macias, 39 Ill2d 208, 234 NE2d 783 (1968).

In Warden v. Hayden, the police were informed that an armed robbery had occurred and that the suspect had entered a certain house. Minutes later they arrived at the house and were told by the defendant’s wife that she had no objection to their searching the premises. The officers arrested the defendant in an upstairs bedroom when it became clear that he was the only man in the house. Weapons, ammunition and clothing were found. In holding that these items were properly admitted into evidence, the court stated (p 298):

“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for. per sons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.”

In People v. Adams, supra, police officers, acting on information from several taxicab drivers who had seen a fatal stabbing, found a trail of blood from defendant’s parked automobile to his apartment. The wife of a defendant voluntarily opened the apartment door for the police, and the defendant appeared before the officers showing evidence of blood and wounds. Two knives were seized and later introduced into evidence. In holding that probable cause was established and the search reasonable, the court said (p 495):

“The claim that Mrs. Adams opened the door only because the officers allegedly threatened to push it in is hardly credible in view of her statement that she was trying at the time to reach the police by telephone. The officers made a lawful arrest of defendant, and their subsequent search for weapons used in the crime was authorized as reasonably necessary and as reasonably incidental to the arrest. The constitution does not prohibit all searches but only those which are unreasonable. The question of what is a reasonable search following a valid arrest depends on the surrounding facts and circumstances.”

In People v. Macias, it is said (p 213):

“Defendant contends the police did not have probable cause to arrest him for the jewelry store robbery nor did they have a right to enter his home by alleged trickery and arrest him without a warrant for a crime committed nearly four months previously.
“We have held that the test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime; that it is something less than evidence that would result in conviction and may be founded on hearsay evidence; that it is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act.”

And at page 214:

“Defendant next contends that the method of entry vitiated the lawfulness of the arrest even if it was based on probable cause. When the officers reached Macias’s home they were admitted by his young son and to allay his fears they told him they were gas inspectors and asked if they might wait for his father’s return. The officers testified that about 20 minutes later when they heard defendant coming up the steps they arrested him on the back porch.
“Defendant’s theory is that even conceding the existence of probable cause, he is constitutionally protected against police entry of his home unless the officers first announce their authority and purpose, and that to gain entrance by trickery is equivalent to breaking in. This argument assumes in this instance that the arrest resulted from the entrance but the facts indicate otherwise. . . . But assuming otherwise, the question is what means may an officer use to gain entrance to a house to make a lawful arrest. We are not aware of any Illinois cases specifically in point nor has counsel cited any. However, section 107-5 (d) of the Code of Criminal Procedure (Ill Rev Stats 1965, Chap 38, par 107-5 (d)) provides: ‘All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.’ ”

And at page 215:

“This same question has been considered in Ker v. State of California, 195 Cal App2d 246, 15 Cal Rptr 767, and affirmed in the United States Supreme Court, 374 US 23, 10 L Ed2d 726, 83 S Ct 1623. This was a case in which officers had probable cause to believe that defendant was in unlawful possession of narcotics. They obtained a key to defendant’s apartment from the manager, entered without knowledge of defendant, arrested him and seized various items of narcotics. The California Penal Code, section 844, authorizes breaking in to make a lawful arrest but requires that the officers first give notice of authority and purpose. The California court held the noncompliance with the statute was justified to prevent the destruction of contraband. The United States Supreme Court (374 US at 39, 10 L Ed2d at 741) in affirming quoted with approval from People v. Maddox, 46 Cal2d 301, 306, 294 P2d 6, 9, to the effect that: ‘It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844. Moreover, since the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer’s peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. . . . Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance.’
“Applying such reasoning to the facts before us we find that the officers had just reason to believe that they were dealing with a man who had . engaged in a violent armed robbery in which one policeman had been shot and three hostages taken as prisoners and threatened with death, that their mission could be perilous, that defendant may already have heard the radio news of his codefendant’s arrest and his arrest could be frustrated by further flight. We therefore hold that under the exigent circumstances of this case the officers’ method of entry was not unreasonable under either State or Federal constitutions.”

In the instant case the police officers were confronted with a situation where a robbery had taken place a short time before they arrived on the scene. The officers reasonably assumed that the footprints in the snow were those of the robber, and they were in “hot pursuit” of him. From the “total atmosphere of the case,” an urgency of time existed and prompt action was required. (United States v. Rabinowitz, 339 US 56, 65-66 (1950); People v. Panozzo, 48 Ill App2d 385, 390-91, 199 NE2d 259 (1964).) The officers acted reasonably when they entered the house without using force to search for a man of the description they had been given and for weapons which had been used in the robbery and which might be used against them. Through diligence and prompt action they found and arrested defendant, who matched the assailant’s description. Therefore, we hold that under the “exigent circumstances of this case,” the officers’ method of entry, the defendant’s arrest, and the subsequent search were based on probable cause and not unreasonable under either the State or Federal Constitutions. (39 Ill2d 208, 234 NE2d 783 (1968).) We conclude the trial court was in error in sustaining the defendant’s motion to suppress.

The order of the trial court is reversed, and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded with directions.

ADESKO, P. J. and BURMAN, J., concur.