author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Billie J. Curtis, Defendant-Appellant.
    Gen. No. 52,610.
    First District, Third Division.
    November 6, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Kenneth L. Gillis, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State's Attorney, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Billie J. Curtis, was charged with the crime of burglary. After a jury trial, defendant was found guilty and sentenced to the penitentiary for a period of two and a half to four years. Defendant appeals, contending first that a certain State’s instruction was erroneously given, and secondly, that he was not proved guilty of burglary beyond a reasonable doubt.

On November 27, 1966, at about 9:30 p. m., Officers Thomas Rowan and Morris Steward were in the vicinity of 1300 East 64th Street in the City of Chicago, pursuant to a burglary in progress call. They noticed two men, one of whom was later identified as defendant. Defendant was carrying twelve bags containing hats, while the other man, named Cox, was carrying nine bags containing hats and also a radio. Cox told the police that it was his merchandise, and that he was moving. The officers then went to Cox’s apartment, where they recovered other items which were later identified as being stolen. The officers took all of the recovered property to the police station, and it was identified by the owner of a cleaning establishment as property from his store.

James Manseles testified that he owned a cleaning and hat shop at 1403 East 63rd Street. On November 27, 1966, he left the store at about 4:30 p. m. He was called about 9:15 p. m. and was told that his shop had been burglarized. He went to the store and found the glass on the front door broken. At the police station, he identified the recovered property as his.

Defendant testified that on November 27, 1966, he was in the vicinity of 1300 East 63rd Street when a man stopped him on the street and asked him to help carry some packages. He had never seen the man before. When defendant first saw the other man, the latter was carrying “a radio, 18 hats, some clothes and things.”

Defendant’s first contention is that one of the State’s instructions was erroneously given to the jury. The disputed instruction reads as follows:

“The Court instructs the jury that the exclusive possession, shortly after the commission of burglary, of stolen property, the proceeds of the crime, if unexplained, may of itself raise an inference of guilt of the person having such possession, sufficient to authorize a conviction if the jury believes that such possession has been established beyond a reasonable doubt and in the absence of any other evidence of facts or circumstances in evidence which leave in the mind of the jury a reasonable doubt as to the guilt of such person.”

Defendant agrees with the principle that the recent, unexplained and exclusive possession of stolen property by an accused gives rise to an inference of guilt sufficient to sustain a conviction, People v. Franceschini, 20 Ill2d 126, 169 NE2d 244 (1960), but argues that the above instruction was coercive and amounted to directing a verdict because it assumed that defendant was in exclusive possession of the stolen property and had not ex> plained that possession.

On the issue of exclusive possession, in People v. Hurry, 385 Ill 486, 52 NE2d 173 (1944), pursuant to a confession made by defendant, stolen goods were found at his home. He denied possession of the stolen property, and on appeal claimed that an instruction similar to the one in the instant case was given erroneously. The court stated atp 493, that:

“The question of whether or not the defendant is in possession of stolen property is often a question of fact, and if the proof tends to establish such possession then such instruction may be given regardless of whether possession is denied or not.”

That holding is consistent with the general rule that an instruction, to be properly given, must be supported by some evidence, but not necessarily by undisputed evidence. People v. Cavaness, 21 Ill2d 46, 171 NE2d 56 (1960). Moreover, possession of stolen property, shared jointly with others, is sufficient to raise the inference. In People v. Reynolds, 27 Ill2d 523, 190 NE2d 301 (1963), the court held that where defendant was a passenger in an automobile containing stolen property in the back seat, the evidence established exclusive and joint possession sufficient to raise the inference of guilt.

In the case at bar, defendant was carrying several bags of stolen hats when stopped by the police. Defendant does not deny carrying those bags, and we cannot see how the element of exclusive possession is in dispute. Even if, under any theory, exclusive possession could be disputed, the instruction concerning it would be proper in accordance with the holding in People v. Hurry, supra.

On the issue of explained possession, defendant argues that, since he offered an explanation as to how he came into possession of the hats, the instruction was improper because it assumed that his possession had been unexplained.

However, in the People v. Carvin, 20 Ill2d 32, 169 NE2d 260 (1960), the court approved an instruction almost identical to the instruction in the instant case. In Garvin defendant explained his possession of the stolen property by testifying that the. watch allegedly stolen was his. The court held that the instruction was not misleading, and that the jury was free to believe defendant’s explanation that it was his watch.

In People v. Himstedt, 377 Ill 498, 37 NE2d 165 (1941), cited by defendant, the court held that an instruction on recent possession of stolen property was prejudicial because it ignored defendant’s explanation of why the goods were in his possession. But in Himstedt, the instruction provided that “. . . the recent and unexplained possession . . .” of stolen property raised the inference of guilt. Thus the instruction did ignore defendant’s explanation, since it assumed that the possession was unexplained. In the instant case, the instruction explicitly stated that the inference only attached if the possession of stolen property was unexplained. We find that the instruction in question sets forth the law as to recent possession of stolen property with sufficient accuracy, that it was not misleading or coercive to the jury, nor did it assume that possession of the stolen property was unexplained. The trial court did not err in giving the instruction.

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt, since the circumstantial evidence was not convincing and his explanation was reasonable.

The inference which arises from the recent, unexplained and exclusive possession of stolen property is, of itself, sufficient to sustain a finding of guilt. People v. Franceschini, supra. Defendant’s explanation of how he came into possession of that property creates an issue which the triers of fact must resolve. People v. Reynolds, supra; People v. Ray, 80 Ill App2d 310, 225 NE2d 467 (1967).

In the case at bar, defendant was arrested shortly after commission of the crime, carrying some of the stolen property, within a few blocks of the scene of the crime. Thus, the circumstantial evidence tending to show that defendant participated in the burglary was strong. Moreover, defendant’s explanation that he came upon a man able to carry a “radio, 18 hats, some clothes and things,” must have seemed as unreasonable to the jury as it does to us. The defendant was proved guilty beyond a reasonable doubt.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Samuel Lee Jackson, Defendant-Appellant.
    Gen. No. 53,485.
    First District, Third Division.
    November 6, 1969.

      David C. Boston, of Chicago (Jenner & Block, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Daniel W. Weil, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Samuel Jackson was found guilty by a jury of the sale and possession of narcotics. He was sentenced to life imprisonment for the sale and to a concurrent term of ten years to ten years and one day for the possession. Jackson had a prior conviction for a narcotics offense and the life imprisonment sentence imposed upon him was mandatory under Illinois law. Ill Rev Stats 1965, c 38, § 22-40.

Jackson sold heroin to John Genarella, a police informer, and Thomas Spanos, a police officer. They approached him in Genarella’s automobile as he was walking along Madison Street, Chicago, at 10:00 p. m., December 27, 1965. Genarella and Jackson were acquainted, and after greeting each other Genarella told him that he and his friend each had $20 and wanted to purchase narcotics. Jackson entered the car, told them where to drive and asked for the money. Spanos gave him $40 in marked bills. After being driven to two places and absences of five and forty minutes, he returned with heroin. He got in the car, told Genarella to drive away and handed Spanos a tinfoil wrapper containing the heroin. He asked where they were going and Genarella replied to his apartment to use the drug and Jackson asked to go along. Genarella drove to a prearranged place and parked the car. A police officer who was waiting approached and told Jackson he was under arrest. Jackson dropped a tinfoil package between his legs; it was recovered by the officer and identified as heroin. None of the marked bills were found on the defendant.

Jackson denied dropping any package in the car, but admitted selling the narcotics. His testimony in regard to the sale differed little from that of the State’s witnesses, however he explained that he was an addict and had used narcotics since 1949, except for several periods of time serving sentences in the penitentiary. He said that he used heroin twice a day but had had none for three days prior to his arrest; that he was ill because of withdrawal, and that tears were welling in his eyes and he was dabbing them when Genarella and Spanos approached him. He testified that Genarella too looked as if he were ill and in need of narcotics; that, after first refusing, he agreed to obtain heroin for them when Genarella said he could share in it; that he bought the heroin for his own use and for Genarella’s because of Genarella’s illness.

The defendant raises a number of issues on appeal. His central theme is that, as a narcotics addict, he should not be convicted for acts which were impelled by that addiction. Tangential contentions are that the trial court erred in not accepting instructions which set up narcotics addiction as a legal defense to the charges of sale and possession of narcotics; that he was the victim of entrapment because the police induced his offenses by preying upon his need for narcotic drugs, and that the trial court erred in not giving the jury instructions which espoused this concept.

A further contention related to his addiction is that the State failed to prove that he was sane at the time the offenses were committed; that he was legally insane at that time because he was suffering from a mental defeet caused by withdrawal symptoms, which so overwhelmed him that he did not have substantial capacity to appreciate the criminality of his conduct and made him incapable of conforming his conduct to the requirement's of the law.

It is also contended that certain trial errors were prejudicial, and that a sentence of life imprisonment for the sale of narcotics is cruel and unusual, in violation of the 8th and 14th Amendments of the Constitution of the United States and section 11 of Article II of the Constitution of Illinois.

The principal theory of Jackson’s defense is based on the cases of Robinson v. California, 370 US 660 (1962), and People v. Davis, 27 Ill2d 57, 188 NE2d 225 (1963). In Robinson the defendant was convicted under a State statute making it a criminal offense for a person to be addicted to the use of narcotics. The reviewing court characterized the statute as one making the “status” of addiction a criminal offense whether or not the addict had been guilty of antisocial behavior. The court held that a state could not punish an addict who had not committed some state prohibited act without violating the 8th and 14th Amendments of the United States Constitution. In People v. Davis the Illinois Supreme Court followed Robinson and held invalid statutory provisions making it a criminal offense to be under the influence of, or be addicted to, the unlawful use of drugs.

The distinction between the status of addiction and the criminal acts of an addict was made clear in the cases of Powell v. Texas, 392 US 514 (1968), and People v. Nettles, 34 Ill2d 52, 213 NE2d 536 (1966), cert denied 386 US 1008 (1967). In Powell a chronic alcoholic was convicted of the offense of being drunk in a public place. The Supreme Court stated that the State of Texas had not punished a mere status, as California did in Robinson v. California, but had convicted the defendant, not for being a chronic alcoholic, but for being drunk in public on a particular occasion. The court said that this was “. . . a far cry from convicting one for being an addict, being a chronic alcoholic, being ‘mentally ill, or a leper . . .’” and added that “The entire thrust of Robinson . . . is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing. . . .” In People v. Nettles the defendant argued that the Rlinois statute making possession of narcotics a criminal offense was unconstitutional when applied to a known narcotics addict. In rejecting this argument and upholding the statute, the court noted that Robinson v. California and People v. Davis ruled the statutes there in question invalid only insofar as they penalized the status or condition of addiction. The Powell and Nettles cases are controlling. Jackson is not being punished for being an addict; he was convicted and sentenced for the prohibited acts of selling and possessing narcotic drugs.

Our conclusion in reference to the defendant’s principal theory disposes of the issue concerning the rejected instructions expounding that theory. To a lesser extent, it is also dispositive of the question of entrapment and the refused instruction on that subject — issues which were founded, in part, on the collateral theory that the defendant’s addiction made the prospect of sharing in the narcotics so alluring that it was a compelling inducement to his conduct.

The contention that Jackson was entrapped as a matter of law is not tenable. The law of entrapment distinguishes between inducing a innocent man to do an unlawful act and merely affording him the opportunity or facility for committing the offense. People v. Gassaway, 65 Ill App2d 244, 212 NE2d 689 (1965). Bereft of the argument that his addiction created such an overwhelming craving for drugs that, as a matter of law, he was not responsible for his acts, the evidence disclosed no more than the ordinary narcotics transaction arranged by law enforcement officials with the aid of informers. Although these transactions border on entrapment and many aspects of them are repugnant, they are approved by the courts as a necessary police procedure to suppress illegal traffic in narcotic drugs.

The evidence of the State showed that Jackson readily acceded to the request that he procure narcotics. When asked by Genarella to purchase heroin, he wanted to know how much money he had. He made no suggestion that the heroin be shared until after he had delivered it to Spanos. Jackson knew where narcotics could be obtained, and when one source failed he found another. This does not indicate that he was induced into selling narcotics, but rather that he was willing to do so and, when afforded the opportunity, did not hesitate to commit a crime. Further, the evidence would indicate that he profited from the transaction. He did not testify that he received no commission as the middleman in the deal, and the fact that he had an additional packet of heroin in his possession suggests that he received this in lieu of money. If he did not, the possession of his own packet weakens his testimony that the reason he sold heroin to Genarella and Spanos was because he needed to share in it to ease his withdrawal pains.

The instruction given by the court on the subject of entrapment correctly set forth the law in Illinois. The refused instruction attempted to relate the law to the testimony and the theory of the defendant. The court was under no obligation to give more than one instruction on entrapment, and since the given instruction adequately covered the law, was fair to both sides and enabled the jury to accept either the defendant’s or the State’s version of the transaction, the court did not err in refusing the second one. People v. Horton, 4 Ill2d 176, 122 NE2d 214 (1954); People v. Lockett, 85 Ill App2d 410, 229 NE2d 386 (1967).

Likewise, the court did not err in instructing the jury that the use of informers is a legitimate enforcement procedure. This instruction is criticized as being incomplete and as informing the jury that all use of informers is proper. The instruction must be read in conjunction with the State’s instruction on entrapment which distinguished between the proper and improper use of informers. Particular instructions need not contain all the law on a given subject if the instructions as a whole fully and fairly cover the law. People v. Horton, 41 Ill2d 176, 122 NE2d 214 (1954).

The defendant argues that the State failed to prove beyond a reasonable doubt that he was sane at the time of the salé. A psychiatrist, who examined him for one and one-half hours nine months after the crime, testified that at the time of the offense Jackson was in. a post-addiction stage and that, based upon his addiction and his need for narcotics, he did not have the capacity to resist a request that he purchase heroin for his own use and the use of others. The doctor’s diagnosis was that Jackson had an emotionally unstable personality; that he used drugs as a tranquilizer and to bolster his feeling of inadequacy, and that his withdrawal symptoms amounted to a mental defect. The doctor concluded that he did not have substantial capacity to appreciate the criminality of his act or to conform his conduct to the requirements of the law. A psychiatrist for the State, who also examined Jackson nine months after the crime but for a shorter period of time, reached the opposite conclusion. He diagnosed the defendant as having a sociopathic personality disturbance, but he stated that a narcotics addict who had a personality disturbance and who had been without heroin for three days could appreciate the criminality of his conduct. The doctor conceded, however, that there could be situations in which a person addicted to heroin would be unable to resist the drug if it were made available to him.

A person is not criminally responsible for his conduct if at the time of the offense, as a result of a mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Ill Rev Stats 1965, c 38, § 6-2. When a defendant introduces evidence of insanity the State must prove him sane at the time of the offense beyond a reasonable doubt. The question is one of fact for the jury and the jury’s verdict will not be disturbed on review unless it leaves a reasonable doubt of the defendant’s responsibility or is so palpably against the weight of the evidence as to indicate that it was based on passion or prejudice. People v. Groves, 100 Ill App2d 171, 241 NE2d 622 (1968).

The evidence of the State was that the defendant’s appearance gave no indication that he was suffering from withdrawal symptoms. This, plus the total evidence surrounding the sale, the things he did and said, his attempt to conceal his own possession of heroin when he was apprehended, and the testimony of the State’s psychiatrist were sufficient to support the finding of sanity.

The defendant next contends that trial errors require reversal. The first of these was the refusal of the court to order a voir dire examination of Genarella under oath. Prior to the trial the defense attorneys were granted permission to speak to Genarella. When the State called him as its witness, the attorneys informed the court that he had refused to talk to them and requested a hearing. At this hearing, which was held outside the presence of the jury, Genarella was examined by both parties. Genarella said that he had been told by the State that he did not have to talk to the attorneys but that he had not been instructed to refuse to talk to them. The attorneys then moved for permission to examine Genarella outside of the presence of the jury under oath on the facts of the case and this was denied.

A defendant is entitled to a list of prosecution witnesses (Ill Rev Stats 1967, c 38, § 114-9), and he may contact these witnesses in the preparation of his case. The prosecuting attorney cannot direct witnesses not to speak to the defendant or his counsel or otherwise deprive them of a fair opportunity for an interview. However, witnesses are under no obligation to speak to the defense (People v. Mitchell, 16 Ill App2d 189, 147 NE2d 883 (1958)), and the prosecuting attorney may so inform them. Moreover, a trial court is without power, under these circmstances, to compel witnesses to answer questions. Ill Rev Stats 1965, c 38, § 114-13, provides that discovery procedures in criminal cases shall be in accordance with Supreme Court Rules. The Supreme Court has not adopted discovery rules in criminal cases, and a trial court may not act without such authorization. People v. Martin, 74 Ill App2d 431, 221 NE2d 13 (1966).

The defendant’s attorneys were afforded a fair opportunity to interview Genarella and were given a full hearing to determine if the State had acted improperly. The trial court was unable to do more, and correctly denied the defendant’s request.

The second alleged trial error is of more .merit. Genarella had been a police informer since 1959 and had testified for the police approximately 50 times. He received compensation for his assistance; in fact, the only employment he had during the entire year of 1964 — just the year before his transaction with Jackson — was as a special employee of the police department. In addition to money, he got leniency from the police for his own criminal offenses. He testified that he had not used narcotics for 13 or 14 months prior to the trial, but that he had been an addict for 15 years and would lie to get narcotics. The defendant’s attorneys wanted to show that he lied in court in a 1959 narcotics case, was found guilty of contempt and sentenced to six months in the county jail. In that case he had falsely identified the accused who, it was discovered, had been in jail at the time of the alleged offense. The court admonished the attorneys not to refer to the 1959 case but permitted them to make an offer of proof, which they did by introducing the transcript of the contempt hearing. The ruling of the court seems to have been based on the ground that contempt of court is not a provable offense for the purpose of impeaching credibility. A witness’ credibility may be attacked by showing that he has been convicted of a crime. Ill Rev Stats 1965, c 38, § 155-1. Infamous crimes are listed in section 124-1 of chapter 38 and perjury is one of them. But contempt of court for committing perjury is not a conviction for the crime of perjury and, from this limited point of view, the trial court properly restricted the cross-examination.

However, showing a witness’ interest, motive or bias is a proper means of impeachment and the widest latitude in cross-examination is allowed for this purpose. People v. Mason, 28 Ill2d 396, 192 NE2d 835 (1963); People v. Rainford, 58 Ill App2d 312, 208 NE2d 314 (1965). If a witness has an interest in the outcome of the case on trial, this interest can be shown. If he has a personal interest in the outcome of cases of the same type as the one on trial, we see no reason why this interest cannot be shown. Genarella had a personal and continuing interest in the prosecution of all the narcotics cases in which he was a witness. The length to which this professional informer would go in order to secure a conviction and remain in the good graces of the police was a proper line of inquiry. His being held in contempt of court for testifying falsely in another narcotics case where he was the informer, would have revealed to the jury the depth of his motive as well as the fallibility of his identifications.

Forbidding cross-examination on this subject is claimed to be prejudicial error. The ruling was erroneous but we do not find it prejudicial. Genarella testified that Jackson sold heroin to him and Spanos; Jackson admitted the sale. Genarella’s testimony about the details of the sale was corroborated by Spanos and in many material respects by Jackson himself. Jackson’s defense was that his narcotics addiction compelled the sale, that he was temporarily deranged because of not having narcotics for several days and that he was entrapped into making the sale by purchasers who took advantage of his withdrawal symptoms and obvious need for drugs. Genarella gave no testimony on these subjects. He was not questioned on either direct or cross-examination concerning Jackson’s outward symptoms or physical appearance. Spanos testified that Jackson showed no signs of withdrawal; Genarella did not. And as to the charge of possessing narcotics, Genarella’s testimony contributed little if anything to the State’s case. Both he and Jackson were ordered out of the auto by the arresting officer; both were ordered to face the car and put their hands upon it. Genarella’s view of what took place was restricted; he did not testify that Jackson dropped a tinfoil package to the floor of the car or that the officer recovered such a package. He said that he saw a police officer pick up something but he added, “I don’t know what it was.” Since Genarella’s testimony as to the sale was corroborated by Spanos and Jackson himself, since it had no bearing on Jackson’s addiction or sanity or craving for drugs, and since his testimony was of minor importance to the charge of possession, the damage to the defense by the prohibition of cross-examination was minimal.

It is further contended that the State committed reversible error in its closing argument. Again, we agree that error was committed but we do not find it reversible. During the closing argument the defendant’s attorney in discussing the verdict forms, said if the jury found Jackson not guilty by reason of insanity and that he had not recovered his sanity,

“ [He] will be sent to a psychiatric institution. He will be sent to a mental institution and will not be released from the mental institution until there is a further determination of his competency, a further Court hearing on that competency.”

In his closing argument the prosecutor rejoined:

“You heard Dr. Haines testify. He is the psychiatrist there. Within a week, the defendant will have a writ of habeas corpus out and Dr. Haines on the stand.”

The court sustained an objection to the comment and ordered it stricken. The assistant State’s attorney shortly thereafter said:

“The only way you can cut this out [i. e. traffic in narcotics] is to get the people who would sell it. I wish we had Herbie [Officer Spanos testified that Jackson informed him he had purchased the heroin from ‘Herbie’] here who got it for the defendant .... We don’t have Herbie, but we have the defendant .... There can be no reasonable doubt in your minds after having heard this testimony and the evidence in this case that this defendant is guilty as charged. And any sympathy exercised in hoping that the man will be sent away and cured will be a waste of time because he will be out in a week.”

The court overruled an objection that the reference to Herbie was not proper rebuttal argument but sustained the objection to the prosecutor’s final comment.

During its deliberation the jury sent two questions to the trial judge. The first was:

“Your Honor, the question arises whether or not the defendant would receive the same kind of treatment in jail as in the hospital.”

The second read:

“If found guilty would or could a plea of clemency be considered? Such as being sent to a sanitarium or hospital for a time determined by the Court or until such a time as the defendant is considered by said hospital that he is qualified to return to society and then only on probation, as an example?”

The court responded that any action subsequent to the jury’s verdict would be determined by the law and by the court’s decision.

It is the defendant’s contention that the reference to Herbie was outside the scope of the defense argument; that the comments on the quick release of the defendant, if the jury found him not guilty by reason of insanity and that he was still insane, were prejudicial; and that the questions asked by the jury indicated that it was influenced by the State’s argument.

The reference to the person who supplied narcotics to Jackson was not improper. It was based on the evidence and fair inferences from the evidence and the defense was not harmed by being unable to reply. The propriety of arguing that a defendant will be discharged quickly and prematurely from a mental institution if found insane appears to be a new question in Illinois. Such comments have been held improper in some other states. See e. g., People v. Sorenson, 231 Cal App 2d 88, 41 Cal Rptr 657 (1964); State v. Johnson (Mo), 267 SW2d 642 (1954). In Illinois, an analogous argument that an accused if found guilty, may be granted probation rather than imprisoned, has been held prejudicial. People v. Burgard, 377 Ill 322, 36 NE2d 558 (1944). The prosecutor was attempting to respond to the borderline remarks of the defense but in doing so he went too far. The defense argument did not open the door to speculation about the defendant’s filing habeas corpus proceedings, that the State would not have adequate time to treat him, or that his confinement in a mental institution would only be of a week’s duration. Improper argument, however, requires reversal only when it appears that substantial prejudice has occurred to the defendant. People v. Brooks, 52 Ill App2d 473, 202 NE2d 265 (1964). The questions asked by the jury do not show that they were prompted by a fear of the defendant’s premature discharge. They could have been stimulated by the argument in behalf of the defendant as much as by the argument of the State. Although the prosecutor’s comments should not have been made, they were minimized by the court’s sustaining the objections to them, striking them from the record and instructing the jury to disregard them. Under all the facts and circumstances of this case it does not appear that the brief comments could have been a material factor in the verdict reached by the jury.

Complaint is made of another phase of the prosecutor’s argument. In commenting on the psychiatrist’s testimony that Jackson took heroin as a tranquilizer, he said:

“As to why he takes it, well, he wants it ... . This man takes it as a tranquilizer but everybody else takes it for enjoyment. . . . This is a new test, ladies and gentlemen. A man who is sexually aroused and grabs a woman and rapes her. He is insane. He wanted a woman so he grabbed her and took her. . . .”

The court overruled an objection to this argument. The defendant reasons that the jurors were likely to surmise from this that he was a potential sex criminal. The cornment did not carry such an implication; it was directed to the defendant’s voluntary action and it could not have misled the jury into thinking that he had or was likely to commit a sex crime. In its context it did not prejudice the defendant and was not improper.

Next to be considered is the defendant’s argument that his sentence of life imprisonment is cruel and unusual in violation of the Federal Constitution, disproportionate to the nature of the offense in violation of the Illinois Constitution, and incompatible with the penalties for more serious offenses. The sentence was imposed under the statute (Ill Rev Stats 1965, c 38, § 22-40) which provided a sentence of ten years to life for the illegal sale of narcotics, and life imprisonment if the defendant has been convicted previously of an offense under the Rlinois Uniform Narcotic Drug Act. Jackson had a prior conviction for possessing narcotics and the life sentence was mandatory. The same constitutional argument was rejected in People v. Gonzales, 25 Ill2d 235, 184 NE2d 833 (1962), cert denied 372 US 923 (1963), in reference to the minimum punishment of ten years for a first offender. The court stated:

“It may be that there are more effective techniques for the control and elimination of the narcotics traffic than a solution that takes the form of penalties of increasing severity. . . . Nevertheless, having in mind the deadly toll that is exacted by the narcotics traffic, we cannot say that the penalty fixed in this case is ‘disproportionate to the nature of the offense.’ ”

Illinois courts have upheld high penalties for a number of criminal offenses against constitutional attack. For murder, sentences of death and of imprisonment for 199 years have been sustained. People v. Chesnas, 325 Ill 361, 156 NE 372 (1927); People v. Pace, 362 Ill 224, 198 NE 319 (1935); People v. Grant, 385 Ill 61, 52 NE2d 261 (1943), cert denied 323 US 743 (1944). For rape, sentences of imprisonment for life, for 199 years and for 99 years have been upheld. People v. Mundro, 326 Ill 324, 157 NE 167 (1927); People v. Dixon, 400 Ill 449, 81 NE2d 257 (1948); People v. Fog, 385 Ill 389, 52 NE 2d 699 (1944), cert denied 327 US 811 (1945).

The penalty for the sale of narcotics subsequent to a prior offense is severe. It is the highest statutory punishment in Illinois for a recidivist offender. But illegal distribution of narcotics is widespread. It has many evils. One of these — the resort to crime to obtain money to buy drugs — is graphically exposed in the present case. Genarella testified that during the 15 years of his addiction he spent from $5 to $20 a day for drugs. He frankly admitted that he obtained much of the money by stealing. Jackson testified that he spent from $20 to $30 a day for drugs. His criminal record included penitentiary sentences for attempted armed robbery and confidence game. One of the purposes of the statute is an attempt to stem collateral crimes by imposing severe penalties upon those who sell narcotics. This and the other laudable purposes of the statute should not be interfered with unless the punishment is “cruel,” “degrading,” or “so wholly disproportioned to the offense committed as to shock the moral sense of the community” (People ex rel. Bradley v. The Illinois State Reformatory, 148 Ill 413, 36 NE 76 (1894)) or “so disproportionate to the offense that it shocks the conscience of reasonable men” (People v. Landers, 329 Ill 453, 160 NE 836 (1928)). The statutory penalty is none of these; nor can it be said to be an unusual punishment or disproportionate to the nature of the offense.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur. .


author: ALLOY, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Robinson, Defendant-Appellant.
    Gen. No. 67-99.
    Third District.
    November 7, 1969.

      L. Park Davis, of Joliet, for appellant.
    Louis Bertani, State’s Attorney, and Harry D. Leinenweber, Special Prosecutor, of Joliet, for appellee.
   ALLOY, J.

Appellant Willie Robinson, following an indictment for murder, was found guilty of voluntary manslaughter. He was sentenced to an indeterminate term for the crime of voluntary manslaughter for not less than one year nor more than 20 years in the Illinois State Penitentiary, with a minimum fixed at 10 years and a maximum at 14 years. The sole question presented for review in this Court is whether the sentence imposed by the Court is excessive and should be reduced.

The Supreme Court of this State in People v. Smith, 14 Ill2d 95, 150 NE2d 815, referring to the standards to be employed by courts of review in determining whether or not to reduce a sentence, stated specifically that, where the sentence is within the limits prescribed by the legislature, the court of review should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of Section 11 of Article II of the Illinois Constitution which requires that all penalties shall be proportioned to the nature of the offense. The court also indicated that, in passing sentence upon a criminal who is found guilty, the trial judge is invested with the judicial discretion within the limits fixed by law and it is only where that discretion has been abused or when a defendant has been materially prejudiced by the procedure which the courts adopt in conducting the inquiry that a court of review will interfere with a judgment pronounced.

It is noted that, in the case before us, the penalty itself is within the limits prescribed by the legislature. By the terms of chapter 38, § 9-2 (c), 1967 Ill Rev Stats, it is provided that a person convicted of voluntary manslaughter shall be imprisoned in the penitentiary from one to 20 years. The sentence in the cause before us recites such indeterminate sentence but specifies the minimum at 10 years and the maximum is fixed at 14 years. Therefore, the sentence imposed in the case before us is clearly within the limits prescribed by the legislature.

In determining whether the sentence constituted a departure from fundamental law or its spirit and purpose or is so manifestly excessive as to be violative of the due process provision of the Illinois Constitution, we must look to the facts of the case. In the cause before us, the record discloses that defendant and a friend, after drinking alcoholic beverages, attempted to hitchhike to Aurora, Illinois, from Joliet, at 1:00 a. m. on the morning of June 19, 1968. It was disclosed that while these persons were attempting to hitchhike the defendant saw the decedent coming out of the rear of a restaurant and walking toward his automobile in the back of the parking lot. Defendant and his companion then ran across the street and shouted and whistled at the decedent and advanced toward him and his automobile in the parking lot. When the defendant approached the decedent he was struck by the decedent in the face with ah iron-lug wrench. Defendant then wrestled with the decedent and was finally able to push him down and, as he did so, decedent struck his head against the concrete retaining bumper. Defendant at this time also picked up a rock or brick. Decedent’s head wounds were later found to have dirt on the wounds. There was evidence that defendant struck the decedent in the head “two or three times” even though his companion asked him not to strike the decedent. Defendant and his companion then ran from the scene and were later apprehended by the police. Defendant denied striking decedent with a rock or brick.

The trial court, as the trier of facts, found from the evidence that the defendant had actually tried to hitchhike a ride but that decedent thought he was to be victimized at that hour of the morning. The court found that the act of decedent in striking defendant with the lug wrench amounted to a serious provocation, but in view of the size and age of the victim, the beating given to him by defendant was unjustified. The court further found that the presence of black earth in the wounds on the top of the head of the decedent compelled a conclusion that defendant struck decedent on the head with a rock or brick and that there was no evidence of self defense.

On appeal in this cause, defendant cites People v. Mitchell, 73 Ill App2d 35, 220 NE2d 19. In that case, the Appellate Court reduced a sentence of 25 years in the penitentiary for the crime of murder to a sentence of 14 years. In that case it was disclosed that defendant and decedent had been fighting; that the decedent had actually started the fight; was armed with a knife, and had cut defendant in the back. The evidence also disclosed that at the time the defendant killed the decedent, the decedent was attempting to flee in a car and that defendant had chased and shot him. The primary issue before the court of review was whether defendant should have been found guilty of murder or voluntary manslaughter. The Appellate Court felt that this was a question of fact for the trier of fact to determine and that it ought not to be disturbed. It is obvious from such case that the Appellate Court reduced the sentence because of the circumstance that defendant was found guilty of murder. While there are similarities in the Mitchell case factually to the instant case, we do not believe that it is a precedent justifying a reduction of the sentence in the cause before us.

In the case of People v. Millet, 60 Ill App2d 22, 208 NE2d 670, defendant Millet was convicted of voluntary manslaughter and sentenced to a term of not less than 8 nor more than 16 years in the penitentiary. In that case decedent had been a former boyfriend of a Katherine King. Defendant had replaced decedent as the lady’s boyfriend. Two months before the homicide, the decedent and defendant had an argument in Katherine’s kitchen in which decedent allegedly wielded a butcher knife and chased defendant from the premises. The day of the homicide the decedent appeared at Katherine’s apartment in an intoxicated condition. She left her apartment and entered a friend’s apartment in the same building, leaving decedent on the front porch. Shortly thereafter defendant arrived with three male companions. They entered the apartment where Katherine was present, without incident. Decedent then attempted to enter the apartment at this time seeking to use the bathroom. He was not permitted to do so and later crossed the street in front of the apartment toward his automobile. Shortly thereafter, defendant and his three companions and Katherine left the apartment. Defendant testified that, as he turned to go toward his own automobile, decedent called to him that he wanted to see defendant. Defendant told decedent that he did not want any trouble with him and not to bother him. Decedent lifted the trunk cover of his automobile and told defendant he was going to kill him. Defendant warned decedent not to take anything from the trunk. Defendant then drew his gun and fired three times, killing decedent. An examination of the trunk of decedent’s car showed that it was loaded with tools, but contained no guns. In the Millet case the defendant contended that his sentence had been too severe. The Appellate Court refused to modify the sentence, stating there was an insufficient basis for interference under the record presented and that in its opinion the sentence was not unduly severe.

In the case of People v. Miller, 33 Ill2d 439, 211 NE2d 708, the Supreme Court likewise refused to reduce the term of not less than 14 years nor more than 20 years in the penitentiary for the crime of voluntary manslaughter. In that case, defendant had called the police and notified them of the death of a prostitute who had died of strangulation at his hands. According to the defendant, the prostitute had deliberately attempted to overcharge him and, when he objected, had threatened to inform his wife. Defendant testified that he only intended to frighten the decedent by putting his hands on her throat and shaking her. He denied any intention of killing her. On the basis of our review of the cases referred to, and other precedents in this State, and in view of the fact that the sentence was in line with sentences previously upheld by Appellate Courts and the Supreme Court of this State, we do not believe we would be justified in reducing the sentence. As stated in People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503 (at pages 98-99):

“On appeal, it is only under rare and unusual circumstances that a reviewing court will interfere with the discretion of a trial judge in the imposition of a sentence. The Appellate Court, in reviewing a trial court’s discretion in fixing punishment, will make allowance for the trial court’s opportunity of observing witnesses and hearing them testify. The imposition of sentence is peculiarly within the discretion of the trial court, and unless clearly abused, the reviewing court will not interfere therewith. Accordingly, 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.”

It is further contended that the procedure adopted by the trial court in conducting the inquiries required by the Criminal Code prior to sentencing prejudiced the defendant. It is specifically stated that the trial court was prejudicially influenced by a certain paragraph of the probation officer’s report, by the listing in the probation officer’s report, of various times the defendant was questioned by police, and by testimony of the police officers at the hearing on mitigation and aggravation. The record discloses that at the probation hearing, the trial court received a written report from the county probation officer. A certain portion of that report was objected to by defendant and the same was ordered stricken without objection from the State. The court stated specifically:

“Paragraph four of the probation officer’s report is stricken from the record in the report, and the court will add that the contents of paragraph four are not considered by the court and will not be considered by the court for any purposes whatsoever in relation to the final disposition of this case . . . and without getting involved in an argument on human psychology, I will say I am confident I can and will disregard anything in connection with paragraph four of the report in arriving at the final disposition of the case.”

At the hearing on aggravation and mitigation, the only evidence submitted was that on behalf of the People and consisted of the testimony of two Joliet police officers. They testified that they were well acquainted with defendant and their testimony was confined to the moral character and life of the defendant as they knew it from first hand information. They testified as to defendant’s opinion of police officers, the defendant’s family, and the propensity to make violent statements. They did not testify about any criminal charges made against defendant which were not sustained by convictions. This was specifically pointed up in the record. There was no evidence submitted on behalf of defendant.

On appeal in this Court, defendant relies on the case of People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498, to support his contention of material prejudice by the probation report and the hearing on aggravation and mitigation. In the Grigsby case, the Appellate Court reduced a sentence of not less than 5 nor more than 15 years in the penitentiary for the crime of burglary, to a sentence of not less than 2 nor more than 5 years. In that case the prosecution presented testimony of a police officer at the probation hearing to the effect that defendant was involved in an investigation regarding a holdup which had occurred after the date of the offense for which defendant had been convicted. This was objected to, in part, on the basis that the witness had no personal knowledge about the holdup or defendant’s involvement. The prosecution prior to the denial of probation had filed with the trial court a motion to increase bail because of the assertion that defendant had been charged with aggravated battery and attempted murder. Subsequently, both charges were dismissed for lack of probable cause. Defendant moved for a change of venue prior to sentencing because of adverse publicity, but such motion was denied. The prosecution then moved that the evidence heard at the probation hearing be considered by way of mitigation and aggravation. Defendant objected and neither the People nor the defendant produced any other evidence. On appeal, the prosecution filed a motion suggesting diminution of the record, which motion the Appellate Court thought was motivated by the desire of the prosecution to prejudice the Appellate Court. The court stated specifically there (at page 192) that the court was unable in that case to state that the prosecutor had fulfilled his duty toward either the defendant or the court. The court also pointed out that bond was increased on charges on which the defendant had not been convicted and that the people brought to the attention of the court and kept before the court the impression that the defendant was an habitual felon. It was not supported by the record. The prosecution, also, over objection, produced evidence as to details of a crime allegedly committed, after the plea of guilty in the cause before it, in a neighboring county and, thus, invited the court also to take the matter into consideration as aggravation in the instant case. The Appellate Court indicated that the trial court gave credence to the ungrounded allegations, as reflected by the trial court’s action on defendant’s bond which was increased while defendant was being held on a $15,000 bond.

In the cause before us, the prosecution did not in any manner attempt to prejudice the trial judge and no such charge is made by defendant. While matters concerning various arrests on which there was no finding of guilty should not be received in evidence at a hearing in aggravation and mitigation, as stated by the courts in People v. Drewniak, 105 Ill App2d 37, 245 NE2d 102 and People v. Bradford, 23 Ill2d 30, 177 NE2d 139, it is presumed, on a hearing in aggravation and mitigation, that the court will disregard any incompetent evidence when determining the degree of punishment. No reversal or reduction of sentence is justified on the basis of the record relating to such matters in the cause before us. The trial court observed defendant during the trial and heard all of the witnesses and, therefore, was in a better position to determine the degree of punishment than is a court of review as has been stated by many courts of this State (People v. Taylor, 33 Ill2d 417, 211 NE2d 673).

In view of the record, therefore, we do not feel that we would be justified in modifying or reducing the sentence in the instant case. The judgment of the Circuit Court of Will County will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and RYAN, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Jessie L. Williams, Defendant-Appellee.
    Gen. No. 68-81.
    Third District.
    November 10, 1969.

      Ronald E. Boyer, Assistant State’s Attorney of Iroquois County, of Watseka, for appellant.
    Robert L. Dannehl, Bell, Smith & Dannehl, of Watseka, and Kenneth R. Shorts, of Waukegan, for appellee.
   ALLOY, J.

This cause is before us on an appeal by the People of the State of Illinois, from a ruling of the trial court granting motion of defendant, Jessie L. Williams, to suppress a blood test. Defendant Williams was charged with driving while under the influence of intoxicating liquor as defined in Section 47 of the Uniform Act Regulating Traffic on Highways (1967 Ill Rev Stats, c 95%, § 144). Section 47 was adopted in 1967 by act of the legislature and the section made a number of changes in the former statute with regard to the offense of driving while intoxicated. Section 47(c) provided:

“Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while driving or in the actual physical control of a vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by a chemical analysis of his breath, blood, urine, saliva, or other bodily substance is admissible, as provided hereinafter in this paragraph (c) and the result of any such analysis shall give rise to the following presumptions

The section later specifies that if there was less than .05% of alcohol in the blood, it is presumed that there was no intoxication; if over .05% and less than .10%, such evidence can be considered with other evidence of intoxication, but there is no presumption; if there was over .10% of alcohol in the blood, intoxication is presumed. The portion of Section 47 (c) which is the basis of the problem causing this appeal provides:

“Evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided for in Section 47.1 of this Act, whose bodily substance was so analyzed.
“The foregoing provisions of this paragraph (c) shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not defendant was under the influence of intoxicating liquor.”

In Section 47 (d) there is a provision for standards to be used in making blood or breath tests. In Section 47 (e) it is provided that when a person was not capable of refusing to take a test under Section 47.1 of the Act, only a physician should administer the test when such test was requested by a law officer. Section 47 (g) provided for furnishing the test results to the person submitting to the test. Section 47 (h) provided that it was not possible to introduce evidence of a refusal to take the test under Section 47.1 in a similar criminal proceeding, but it should be presented at a hearing to suspend a driver’s license. Section 47 (i) established the penalties.

The legislature, however, did not pass Section 47.1 referred to in the above Section 47. The record discloses various bills passed through the Illinois Senate and the Illinois House, and as such bills passed, the Senate passed Section 47 referred to, apparently on the assumption that the Illinois House was going to pass 47.1. On that same day, however, the House failed to pass Section 47.1. The record shows that Section 47.1 contained the implied consent provisions requiring that anyone using the Illinois Highways impliedly consented to taking the blood test if so requested. Section 47 was, however, passed by the Senate with the reference to Section 47.1 and was never modified or amended to delete the references to Section 47.1.

Defendant in the cause before us demanded a jury trial and after the jury was selected, but before any evidence was offered, defendant moved to suppress any evidence of a blood test which he alleged would be offered into evidence by the State. Defendant argued that under Section 47(c) of the Statute there was reference to a blood test being made “with the consent of the person as provided for in Section 47.1 of this Act.” Defendant argues that since 47.1 was not passed, this made section 47(c) invalid. In the cause before us, so far as the record discloses, defendant has made no contention that his consent was obtained fraudulently or that he had not consented to the test, but he argues solely that any evidence of a blood test should be suppressed on the basis of the contended invalidity of Section 47(c) (by reason of the reference to 47.1 which was never passed). No procedural questions are raised as to the propriety of the motion and the trial court granted defendant’s motion to suppress the blood tests, stating that Section 47 provided that in order for evidence of a blood test to be admitted, such test had to be made with the consent of the person under Section 47.1, and due to the fact that there was no Section 47.1, there was no way the court could interpret Section 47. As indicated previously, the State has appealed this ruling by the trial judge and the cause below was continued until disposition of such issue in this Court.

On appeal in this Court, the State contends that the trial court should have denied the motion to suppress the evidence of the blood test since the legislative history of Section 47 discloses that the provision designated as Section 47.1 was erroneously and inadvertently omitted from the act in the process of amendment. It is contended that the legislature had no intention to define or restrict the means by which a person’s consent was to be obtained, but that, on the contrary, the legislature was attempting to adopt in Section 47.1 an implied consent doctrine whereby a person impliedly consented to a chemical test by the fact that he chose to use the State highways. It is contended that since the implied consent doctrine was not adopted, and although the legislature neglected to delete the references to Section 47.1 from Section 47, the trial court should have adopted the rule of statutory construction which required that such words referring to Section 47.1 should be disregarded and treated as surplusage. The consequence would be that treating the words as surplusage would make the provision completely sensible and leave the word “consent” to be interpreted in its ordinary common-law meaning.

The basic question, therefore, is whether it was the intention of the legislature to pass Section 47, which dealt with driving while intoxicated, only in the event that Section 47.1 was also passed, or whether the reference to Section 47.1 was of such character that it can be treated as surplusage. In People ex rel. Roan v. Wilson, 405 Ill 122, 127-8, 90 NE2d 224, the Supreme Court of this State outlined certain rules relating to statutory construction which are applicable where the court said:

“The primary aim of statutory construction is to ascertain the legislative intent by examining not only the language employed, but the evil to be remedied and the end to be obtained. (Schoellkopf v. DeVry, 366 Ill 29.) Rules of interpretation are resorted to for the purpose of resolving ambiguities, and the entire section and act must be read together and so construed as to make it harmonious and consistent in all its parts. (Wells Brothers Co. v. Industrial Com., 285 Ill 647.) This court is bound to give meaning to each word, clause and sentence. (People ex rel. Cameron v. Flynn, 265 Ill 414.) The section must be interpreted according to its intent and meaning, and reasonably, so as to accomplish its general object. (People ex rel. Akin v. Kipley, 171 Ill 44.) In interpreting statutes, words are presumed to be used in their ordinary meaning, and it is proper, in case of ambiguity, to consider the context to determine the meaning in which they are used. (Board of Education v. Morgan, 316 Ill 143.) Further, it is the province of the legislature to enact the laws and that of the courts to construe them.”

As we look to the legislative history of Section 47, we conclude that such inquiry makes apparent the intention of the legislature to enact Section 47 into law irrespective of whether Section 47.1 was adopted or not. Section 47 was first passed in 1961. The 1961 act provided (in 47(b)) that upon a trial, evidence of a blood or breath test was admissible and the statute set forth several presumptions based upon the percent of alcohol in the blood. It provided that if less than .05% was found there was no indication of alcoholic intoxication, that between .05% and .15% there was no presumption of such intoxication, and that if over .15% it was presumed that the person concerned was intoxicated. The 1967 Act amended and revised Section 47 by changing the percentages from .15% to .10% and Section 47 was also expanded to provide more expressly how the tests were to be administered. Section 47.1 which was proposed, dealt with implied consent, but there is no indication that such provision was so closely associated with the basic provisions of Section 47, that there was a legislative intent that Section 47 should not be passed or become effective in the event Section 47.1 failed to pass. We note that the provisions of Section 47 under the 1961 Act are substantially the same provisions as Section 47 under the 1967 amended Act. The chief changes are the lower alcohol percentages in the 1967 statute and a change in the procedure for taking tests. The 1961 Act had been in operation for six years and there is nothing to show the legislature intended to revoke the provisions embodied in the former Section 47 simply because the additional Section 47.1, (which dealt only with implied consent), was not incorporated in the Act. Section 47, as passed in 1967, could be treated as a complete Act which provided for penalties for certain violations. As a consequence, we believe that the reference in Section 47 to Section 47.1 may be regarded as surplusage.

In Klein v. Department of Registration and Education, 412 Ill 75, 105 NE2d 758, the court was concerned with the question of legality of the Hlinois Optometric Practice Act passed in 1951. In that Act reference was made to a “scheme or plan” in which performance of optometric service would be taken with another person, firm or corporation known to be advertising in a manner contrary to the provisions of the Act, etc. It was contended that the words "scheme or plan” were so vague that the reference was not capable of clarification and thus rendered the entire act invalid. The Supreme Court stated (at Page 86):

"The words ‘scheme or plan’ may, however, be omitted from the provision without affecting its meaning, which is to prevent a registered optometrist from practicing optometry in conjunction with another person, firm or corporation known to be advertising in a manner contrary to the provisions of the Illinois Optometric Practice Act, or otherwise violating the laws of the State of Illinois concerning the practice of optometry. If the main intent of the statute can be collected from the statute, words may be modified or altered, declared surplusage or even supplied so as to obviate any repugnancy or inconsistency with the legislative intent. (People ex rel. Simpson v. Funkhouser, 385 Ill 396.) By treating the words ‘scheme or plan’ as surplusage in this case, the intent of the legislature may validly be given effect.”

We feel, as did the court in the Klein case referred to, that if the intent of the legislature is clear from a reading of the statute, then certain words in the statute which are inconsistent with, repugnant, or unnecessary to the express intent of the Act may be regarded as surplusage. We feel that the reference to Section 47.1 in the statute should have been treated as surplusage.

We are aware of the rule of statutory construction that the court should give meaning to each word, clause and sentence in a statute, but such rule of construction cannot be applicable to the situation in the case before us where reference is made to another portion of a statute which was not enacted into law by the legis¡ature. The only manner in which reference to Section 47.1 could be given any meaning would be to say that the passage of Section 47 was conditioned upon Section 47.1, which we have indicated was obviously not the legislative intent. As the Supreme Court noted in Moran v. Katsinas, 16 Ill2d 169,157 NE2d 38, at 175:

“The legislature is not to be presumed to have intended to enact an ineffective law.”

It is obvious that the contention of the defendant in this cause, which was accepted by the trial court, would make Section 47 which was passed in 1967, totally ineffective. This was obviously not the intention of the legislature.

Defendant contends that the rule of legislative construction that requires a criminal statute to be construed strictly in favor of the accused and against the State would have application in the cause before us. We do not agree with such interpretation. In the cause before us the question is whether 47.1 is to be treated as surplusage or whether such reference should operate to render Section 47 inoperative or invalid. The theory behind the rule of strict statutory construction favoring a defendant in criminal cases is to safeguard the rights of the accused and not to defeat the objective intent of the legislature (People v. Kirkrand, 397 Ill 588, 74 NE2d 813). In the instant case, the rights of defendant are safeguarded by finding that Section 47 is valid even though Section 47.1 was not passed. Under Section 47, defendant cannot be forced to submit to a blood test without his consent. Section 47 of the 1967 Act refers to defendant’s consent under Section 47.1, and since there is no Section 47.1, the question of consent then becomes one which must be determined under the common law. In People v. Knutson, 17 Ill App2d 251, 147 NE2d 461 (which case was decided before the 1961 amendment of Section 47) the court held that evidence of an intoximeter test which was taken by force or by deceit practiced on the defendant, would not be admitted in evidence. In such case, the question of the consent which was required from defendant was left to the common law. The court also in that case stated that evidence of defendant’s refusal to take the intoximeter test was also not admissible. Consequently, under our determination that Section 47 of the 1967 Act is valid, the question of consent by the defendant must be determined under authority of such cases as the Knutson case and the rights of a defendant are clearly safeguarded.

Another contention which is advanced is that the court would be legislating in the field if Section 47.1 was held to be surplusage. This contention is untenable. The court is merely stating that Section 47 is a valid statutory enactment without the passage of Section 47.1. It is saying simply that Section 47.1 is not essential for an interpretation of Section 47. The court is not setting up statutory requirements for consent. The question of consent is left for common-law interpretation. No words are actually being supplied by the court but the sole effect of this decision is to eliminate some of the words in the Statute, which obviously have no effect, and which were not intended by the legislature to be a basic condition for the operation of Section 47 as a whole. It is also contended that if the reference to Section 47.1 was an oversight, the legislature can correct such oversight at its next session. We agree that this is so but believe that the court should give recognition to Section 47 by omitting references to Section 47.1 which were inadvertently included. If we were to conclude otherwise, the State of Illinois would be left without any statute covering this matter until the legislature has an opportunity to meet again to correct what may have been a clerical error.

We, therefore, conclude that the order of the Circuit Court of Iroquois County was improper in not treating the reference to Section 47.1 as surplusage. The order of the Circuit Court of Iroquois County allowing the defendant’s motion to suppress evidence of any blood test of defendant was in error. Such order is reversed and this cause is remanded to the trial court with directions to vacate the order allowing the motion to suppress herein referred to and to proceed in such cause in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

STOUDER, P. J. and RYAN, J., concur.


author: JUSTICE McNAMARA.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Steven Mitchell, Defendant-Appellant.
    Gen. Nos. 53,228, 53,229 (Impleaded). (Abstract of Decision.)
    First District, Third Division.
    November 6, 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 (Kenneth L. Gillis, Special Assistant State’s Attorney and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE McNAMARA.

Not to be published in full.


author: STOUDER, P. J.

text:
    Helen D. Cole, Plaintiff-Respondent-Appellant, v. Terry D. Cole, Sr., Defendant-Petitioner-Appellee.
    Gen. No. 69-45.
    Third District.
    November 10, 1969.
    Mathis, Slavens, Parsons, and Hatcher, of Peoria . (James G. Hatcher and J. Michael Mathis, of counsel), for appellant.
    Bruce R. Becker, of Peoria, for appellee.
   STOUDER, P. J.

In June, 1967, the Circuit Court of Peoria County entered a decree of divorce in favor of Helen Cole, Plaintiff-Appellant, and against Terry Cole, Sr., DefendantAppellee. Plaintiff was granted the custody of the two minor children of the marriage (ages five and six at the time of the decree) and defendant was granted visitation rights every Sunday. In this action, commenced in August, 1968, Defendant seeks a modification of the custodial provision of the decree asking that custody of the minor children be awarded to him. The trial court granted the modification sought and it is from such order that plaintiff has appealed.

. Plaintiff argues that the order of the court is against the law and the facts as a matter of law and that she was denied a fair trial by the erroneous admission of prejudicial evidence.

Subsequent to their divorce and prior to the latter part of July, 1968, a reasonably satisfactory relationship existed between the plaintiff and defendant insofar as the care and custody of the minor children was concerned. In a written stipulation which was entered into between the parties prior to the hearing on the modification petition, the plaintiff admitted that for some time prior to July, 1968, she had carried on an adulterous relationship with one Harold Stafford. Stafford was at the time married and living with his family. The Staffords had been friends of the Cole’s prior to the divorce. According to the stipulation, the affair was carried on in secret, the parties meeting at the plaintiff’s house during the daytime while the children were at school or late at night after they had gone to bed.

In the latter part of July, 1968, plaintiff admitted confronting Mr. & Mrs. Stafford with the demand that Mr. Stafford choose between his wife and the plaintiff. The confrontation did not resolve the issue and plaintiff’s subsequent efforts to terminate the affair were opposed by Stafford. At this time plaintiff told defendant that Stafford was bothering her and defendant’s inquiries as a result thereof brought to light the relationship between plaintiff and Stafford. The unresolved problems between plaintiff and Stafford led to an incident on August 14, 1968, which apparently precipitated the filing of this petition for modification and about which there is some controversy.

On the evening of August 14, 1968, plaintiff called defendant asking him to take good care of the children. Plaintiff also admitted calling Mrs. Stafford telling her that Mr. Stafford would be sorry for what he had done. Mrs. Stafford and Mr. Cole, being apprehensive, went to the plaintiff’s residence where they found her lying on a sofa somewhat groggy and sleepy. The children were there with their mother and were described by defendant as “distraught.” Defendant testified that he called the hospital but no physician was asked to come or did, in fact, come. Plaintiff made and drank coffee and her alertness returned. Later a purported suicide note was discovered in the kitchen.

Plaintiff testified that she had taken several bufferin or excedrin pills, that she had not tried and did not intend to commit suicide, but that as a response to Mr. Stafford’s threats of suicide, she had tried to scare people.

Defendant also endeavored to show that plaintiff committed adultery with one Galetti. The only evidence purporting to support such charge is the testimony of Galetti himself and that of Stafford. It is the court’s rulings on the testimony of these witnesses that plaintiff contends were erroneous and prejudicial.

Galetti was subpoenaed by defendant and after an unsuccessful effort to quash said subpoena, Galetti took the stand. After a few questions identifying the witness, defendant moved that Galetti be made a court’s witness pursuant to Supreme Court Rule 238 (c 110A, § 238, Ill Rev Stats 1967), and subject to cross-examination. After objection by plaintiff the court stated, “Well I cannot see it is prejudicial to anyone to make him a court witness, so I grant the motion.”

Plaintiff argues the court erred first in declaring Galetti to be a court’s witness and second in permitting questioning of Galetti as if upon cross-examinatian. Defendant claims that the trial court’s action is authorized by and in accord with Supreme Court Rule 238 (c 110A, § 238, Ill Rev Stats 1967). Defendant offers little support for this claim, but instead argues that whether the trial court erred or not is immaterial since the issues were determined by the court sitting without a jury.

Chapter 110A, § 238, Ill Rev Stats 1967, provides: “If the court determines that a witness is hostile or unwilling, he may be examined by the party calling him as if under cross-examination. The party calling an occurrence witness, upon the showing that he called the witness in good faith and is surprised by his testimony, may impeach the witness by proof of prior inconsistent statements.” It requires only a brief examination of Rule 238 to ascertain that the Rule has nothing to do with making a witness a court’s witness. The rule specifically refers to “. . . by the party calling him . . .” and “. . . the party calling an occurrence witness . . .” and not to a witness called by the court. The Drafting Committee comment to this Rule in Smith-Hurd Annotated Statutes, 1967, states “This rule is new. It extends the provision of section 60 of the Civil Practice Act authorizing cross-examination to any witness who proves hostile or unwilling and the provision authorizing impeachment by prior inconsistent statements to any occurrence witness who surprises the party calling him by testimony on a material matter that is inconsistent with a prior statement made by him. . . .”

While the erroneous application of Rule 238 may not have been in and of itself prejudicial, it appears that it did constitute an initial step in the creation of a prejudicial climate. Defendant’s counsel continued to question Galetti, now purportedly a court’s witness being cross-examined. The questioning elicited the testimony that Galetti was married, that he knew plaintiff socially, that he had been out with her but that the witness had not had intercourse with her. (The prior testimony of plaintiff called as an adverse witness under section 60 by defendant, was to the same effect, with the addition that plaintiff indicated that after she learned Galetti was married she had nothing more to do with him.) Galetti was also asked about two meetings with defendant and with respect to one meeting was asked the following question, “and did you in fact admit to Terry Cole on that occasion that you had had intercourse with Helen B. Cole prior to that time?” The plaintiff’s objection to the question was overruled and the witness answered, “I did not.” Any admission of Galetti’s was hearsay so far as plaintiff is concerned. The question was proper for impeachment if and only if its admission was conditioned upon the presentation of other evidence making such issue relevant. Since, in fact, defendant did not testify to any such admission by Galetti we are left to what amounts to impeachment by innuendo.

After Galetti had concluded his testimony, Stafford was called to the stand by defendant. During his testimony he was questioned concerning alleged conversations which he (Stafford) had with Galetti. When plaintiff objected that such conversation was hearsay so far as the plaintiff was concerned, defendant initially claimed that such conversation was admissible for the purpose of impeaching plaintiff. Realizing that such an argument was untenable, defendant then claimed that the conversation was admissible for the purpose of impeaching Galetti and thereupon the court overruled the objection. Unfortunately, so far as the propriety of the ruling is concerned, no proper foundation was laid concerning any conversations between Galetti and Stafford, consequently there was nothing in Galetti’s testimony that could have been impeached by said questions. Again we have improper impeachment or impeachment by innuendo.

In holding as we do that the court permitted improper evidence of impeachment, the prejudice resulting therefrom might well have deprived plaintiff of a fair trial. Of more significance is the effect of the impeachment evidence, whether proper or improper. Since Galetti and plaintiff both denied any improper conduct, the only evidence to the contrary in support of the charge against plaintiff was that relating to the hearsay admissions of Galetti. Even if Galetti had made the admissions attributed to him they nevertheless were appropriate only to discredit Galetti’s testimony and had no independent probative value in supporting the charge against plaintiff.

Notwithstanding the fact that competent evidence is lacking to support the defendant’s charges relating to the Galetti affair, the court’s findings indicate that it considered the charges as proved, a conclusion with which we cannot agree. Where the result is based to some indeterminable extent on erroneous findings or premises, then the propriety of the result cannnot be sustained. Under such circumstances we cannot determine whether the court properly applied the rules as set forth in Nye v. Nye, 411 Ill 408, 105 NE2d 300 and Hahn v. Hahn, 69 Ill App2d 302, 216 NE2d 229.

For the foregoing reasons the order modifying the decree of divorce is reversed and the cause is remanded with directions that plaintiff be granted a new trial.

Decree reversed and remanded with directions.

ALLOY and RYAN, JJ., concur.


author: MR. JUSTICE MURPHY ADESKO, P. J., BURMAN, J.,

text:
    Alfonso Carlisi, d/b/a Al’s Place, Plaintiff-Appellant, v. Illinois Liquor Control Commission, Defendant-Appellee.
    Gen. No. 52,899.
    First District, First Division.
    November 10, 1969.
    BURMAN, J., dissenting.
    Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellant.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an administrative review action in which the Circuit Court affirmed the revocation of plaintiff’s State retail liquor license by the Illinois Liquor Control Commission, on the ground that plaintiff was not a resident of the municipality in which the licensed premises were located. On appeal the determinative issue is whether the findings of the Commission were contrary to the manifest weight of the evidence presented.

Plaintiff was issued a retail liquor license effective July 1, 1967, for premises located at 3500 South Laramie Avenue, Cicero, Illinois. On October 27, 1967, the Rlinois Liquor Control Commission issued a citation and notice of hearing to the plaintiff, charging him with the violation of the following provision of the Illinois Liquor Control Act (Ill Rev Stats 1965, c 43) :

“120. Persons ineligible to license.] § 2. No license of any kind issued by the State Commission or any local commission shall be issued to:
“(1) A person who is not a resident of the city, village or county in which the premises covered by the license are located; except in case of railroad or boat licenses.”

After a hearing and on December 14, 1967, the Commission entered an order which included the following:

“This Commission having heard and considered the evidence, both oral and documentary, in support of the allegations contained in said Citation and Notice of Hearing, a copy of which was duly served upon the respondent licensee, at the hearing held at Chicago, Illinois, on December 12, A. D. 1967, and the respondent licensee having been represented by counsel and this Commission being fully advised, FINDS:
“That the evidence adduced at the hearing supported the charge contained in Citation and Notice of Hearing that the licensee did not in fact reside in Cicero, Illinois; whereas his application for a State Retail Liquor License states that he lived at 3500 South Laramie Avenue, Cicero, Illinois; whereas in fact, he resides at 5837 Maple, Berkeley, Illinois.
“IT IS THEREFORE ORDERED that the State Retail Liquor License No. R-11905 issued to ALFONSO CARLISI, d/b/a Al’s Place, at the aforesaid address, be and the same is hereby REVOKED.”

On December 28, 1967, a final order was entered by the Commission denying plaintiff’s application for a rehearing.

In support of the charges the Commission’s evidence included Exhibits 1, 2 and 3, which were received into evidence over the objection of plaintiff. Exhibit 1 is a certification from the Village Clerk of the Village of Berkeley, Illinois, of a 1967 vehicle license tag issued in the name of Alfonso Carlisi, with the address of 5837 Maple Avenue, Berkeley, Illinois; Exhibit 2 is a certified copy of a voter’s registration card in the name of Alfonso Carlisi, the address is 5837 Maple, Berkeley, Illinois, and it is certified by the Village Clerk on October 23, 1967; Exhibit 3 is a certified copy of a water bill in the name of Alfonso Carlisi, with the address 5837 Maple Avenue, Berkeley, Illinois, and bearing dates from January 1, 1967, through September 1, 1967, and certified on October 23,1967.

A witness for the Commission, an agent of the Federal Bureau of Investigation, identified the Commission’s Exhibit 5, purporting to be a certified copy of an application for a 1967 automobile license in the name of Alfonso Carlisi, 5837 Maple Avenue, Berkeley, for a 1966 Chrysler. He further testified that in the course of his official duties he visited the premises at 3500 South Laramie, Cicero, on November 13, 1967. He was accompanied by a special agent of the FBI. He visited and examined the premises in the early afternoon between 1:00 and 2:00 p. m. He described the premises at length.

On cross-examination this witness stated that he had walked from the barroom portion into the banquet area about ten feet and looked around. He then walked into the interior section. This was the extent of his examination of the premises. He didn’t recall whether there were kitchen facilities in the place. He also didn’t recall seeing any stairway going downstairs as well as upstairs.

Another FBI agent testified that he knew plaintiff but, in attempting to identify him, identified a Mr. Tornabene as Mr. Carlisi. He had interviewed a man who identified himself as Alfonso Carlisi back in 1966.

Plaintiff was called as a witness by the Commission. He identified his application for the license and stated: “I live at 3500 South Laramie.” He was familiar with the address 5837 Maple Street, Berkeley, Illinois, “because my family live there. They have lived there since we bought the place three or four years ago.” He had been the licensee of the Starlight Inn in Cicero for thirteen years. At 3500 South Laramie he rents the whole first floor and has a room off the dining room in the same building.

Plaintiff further testified that for "the thirteen years he had been a liquor licensee, he has “never been called before the Commission or any Board with reference to the manner in which I have operated it.” During the years 1964, 1965, 1966 and the beginning of 1967, he was residing at the Tomabene home, going to his family abode in Berkeley on Sunday morning. He would not return to the tavern at any time on Sunday. While he was the licensee at 3500 South Laramie Avenue, he resided there six nights a week. He had a room off the dining room. There was also a kitchen. He then identified photos taken of the living premises, which were admitted into evidence.

Plaintiff also offered the testimony of the following witnesses:

(1) George Sedler, a neighbor, who said that he knew plaintiff and occasionally went to the tavern for lunch and in the evening after work. He had occasion to be in the dining area. There is a stairway going down out of the dining area that leads to a bedroom. He knew that plaintiff occupied that bedroom during the months he was a patron. He had seen plaintiff going down there.
(2) Richard Beckwett, a realtor, who testified that he had been to the tavern about three times a week for the past five and one-half months. He had seen the physical layout of the premises on the first floor of the building. There is a stairway leading down to a room that contains a dresser, metal chest, bed and cabinet.
(3) Mrs. Mary Tornabene, who testified that plaintiff is her husband’s first cousin, and that she knew plaintiff and his wife quite well. Plaintiff had lived in her home during 1964,1965 and 1966 in a room upstairs.
(4) Mrs. Emily Carlisi, who testified that she was plaintiff’s wife and they had been married 29 years. They have two daughters and a son. The older daughter was 28, the younger daughter 12, and the son was 23. She said that “in all the years that I have lived in Berkeley, my husband has lived with me and my son and my daughters on Sunday. He was only home on Sunday because of his business. The Starlight Tavern was closed on Sundays. The one he has now is not closed on Sundays.” She had occasion to visit the premises at 3500 South Laramie Avenue. Her husband occupies the room “at the bottom of the stairs off of the dining room. These living facilities are not very good, but they are enough for a man to get by on. He has a bed, a nightstand, I think this lamp and a rug. There are two bathrooms.” On cross-examination she testified her husband came home “after he closed Saturdays which would be early [Sunday] morning.” He would stay home on Sundays.

Plaintiff asserts that he was a bona fide resident in Cicero and argues that both his bodily presence and his intention of residing in the tavern as a residence were undisputed in the record, and by living on the premises he has complied with the purposes of the statute in that he is always exposed and available to the local police in Cicero.

Plaintiff contends that his “documentary and unequivocal testimony that he resided on the premises was more than sufficient to offset the Commission’s case that he resided elsewhere,” and that the law enforcement officials “could not disprove that he actually lived on the premises.” Plaintiff states that the term “residence” has no fixed meaning in Illinois. Plaintiff cites Hughes v. Illinois Public Aid Commission, 2 Ill2d 374, 118 NE2d 14 (1954), where it is said (p 380):

“ ‘Residence’ has no fixed, exact meaning in the law, but may have a variety of meanings dependent upon the context in connection with which it is employed as well as the subject matter involved and the purposes of such subject matter. . . . Two elements are necessary to create a residence, (1) bodily presence in that place and (2) the intention of remaining in that place; neither alone is sufficient to create a legal ‘residence.’ ”

And at p 381:

“This court, as well as the legislature, has regarded ‘residence’ as being one’s permanent home. In discussing ‘residence’ as used in the election laws, in Coffey v. Board of Election Com’rs, 375 111 385, 387, we said: ‘It is established that a permanent abode is necessary to constitute a residence within the contemplation of the pertinent constitutional and statutory provisions. ... A real and not an imaginary abode occupied as his home or dwelling, we have held, is essential to satisfy the residential qualifications prescribed by law.’ ”

Plaintiff also cites Stein v. County Board of School Trustees, 85 Ill App2d 251, 229 NE2d 165 (1967), and Noble v. Illinois Liquor Control Commission, 24 Ill App2d 444, 160 NE2d 688 (Abst) (1959). In Noble, the tavern owner had lived on the premises, and his wife lived in Winnetka. The licensee died and his widow was issued a license on the condition she move to the Village of Northfield, where the tavern was located. The police tried unsuccessfully to reach her in Winnetka. At one time prior to renewal of her license, she rented a room for four weeks in Northfield. The court held that “she has not established a bona fide residence in the village, but was only seeking to effect some temporary compliance with the law.”

The Commission argues that “assuming the plaintiff had established that he was domiciled in Cicero, which we assert he did not, we submit that that fact alone would not establish his residence in Cicero and would not bring him within compliance with the provisions of chapter 43, section 120, subsection (1), Illinois Revised Statutes 1967. There is a difference between residency and domicile.” Authorities cited include Schultz v. Chicago City Bank and Trust Co., 384 Ill 148, 51 NE2d 140 (1943); Auler v. Melrose, 102 F Supp 28 (1952); and Baker v. Keck, 13 F Supp 486 (1936).

In Schultz v. Chicago City Bank & Trust Co., the issue was whether a decedent had been domiciled at the time of his death in California or Illinois, even though he had been living in California at the time of his death. In deciding that he was domiciled in Illinois and therefore his will should be probated there, the court said (p 156):

“In considering appellees’ contention that there was a change of decedent’s domicile, we must bear in mind that residence and domicile are not synonymous and that there is a distinction between the two. . . . The domicile of a citizen may be in one State or Territory and his actual residence in another. .. . The domicile is the place where a person lives and has his true, permanent home, to which, whenever he is absent, he has an intention of returning, the question of a person’s domicile being largely one of intent. . . . An essential element in the acquisition of a new domicile is the abandonment of the former one. The facts of actual removal and actual residence in the new locality without the intention there to remain avail nothing.”

The Commission also cites Holt v. Hendee, 248 Ill 288, 93 NE 749 (1910), where the question of residency and domicile would determine whether the appellant, George Holt, was subject to Illinois personal property taxes. The appellant claimed that he had established a domicile and residency in California. There the court said (p 296):

“On the question of domicile less weight will be given to the party’s declaration than to his acts. . . . Applying these rules to the case at bar, we are of the opinion that the acts of appellant and the . circumstances shown by the evidence wholly disprove his statements that he changed his place of residence to San Diego County, California, in 1904 and has ever since been a resident of that county.”

The authorities cited by both sides demonstrate the difficulty of assigning a fixed meaning to the term “residence” as used in the Liquor Control Act (c 43, § 120). We think the guidelines to be used here are set forth in Fenyes v. State Employees’ Retirement System, 17 Ill2d 106, 160 NE2d 810 (1959), where it is said (p 111):

“Under the Administrative Review Act, the findings of the administrative agency on questions of fact are prima facie correct. They may be reviewed to determine if they are supported by the evidence, but they can be set aside only if against the manifest weight of the evidence. Kellogg Switchboard and Supply Corp. v. Department of Revenue, 14 Ill2d 434; Logan v. Civil Service Com., 3 Ill2d 81; Drezner v. Civil Service Com., 398 Ill 219.
“The judicial function of the reviewing court in such case is comparable to that presented where such court is called upon to determine an issue at law as to whether there is competent evidence to support the judgment of the lower court, and when there is evidence to support the findings of the administrative agency, its decision will be affirmed.”

In sum, it was the province of the Commission to weigh the probabilities, judge the credibility of plaintiff’s witnesses and determine whether their testimony was worthy of belief, or to determine whether plaintiff’s evidence, if believable, was sufficient to demonstrate that he was a bona fide resident of Cicero, as examined in the light of the evidence of the Commission to the contrary. There must be more than the existence of conflicting testimony to warrant the conclusion that a finding of fact is erroneous. In order for the decision of an administrative agency to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly evident. See Legones v. License Appeal Commission, 100 Ill App2d 394, 403, 241 NE2d 499 (1968).

After reviewing this record, we conclude the findings of the Commission are based on competent and substantial evidence and as an opposite conclusion to the findings of the Commission is not clearly evident, we will not substitute our judgment for that of the Liquor Commission.

For the reasons given, the judgment of the Circuit Court is affirmed.

Affirmed.

ADESKO, P. J.,

concurs.

BURMAN, J.,

dissenting:

I cannot agree with the conclusion of the majority of the court that there is sufficient evidence to support the revocation of plaintiff’s retail liquor license.

Plaintiff had been a tavern licensee at 30th Place in Cicero for thirteen years before becoming a licensee of the 3500 South Laramie premises on July 1st of 1967. It is undisputed that during those years he had never been charged with any violations by the Commission.

On October 27, 1967, the Commission charged him with fraud in obtaining the 1967 license in that he stated in his application that his residence was at 3500 South Laramie Avenue, Cicero, Illinois, the address of his tavern, whereas information came to the Commission that he resides at 5837 Maple, Berkeley, Illinois.

The sole question is whether the plaintiff, licensee, resided on the licensed premises during the months of July to November, 1967. Plaintiff testified that he resides in the 3500 South Laramie premises, but also maintains a home for his family in Berkeley, Illinois. A neighbor who has been a patron in the tavern during the months in question, testified that there is a kitchen on the premises and he had eaten there. He said there is a bedroom downstairs which plaintiff occupied. A realtor who had been a frequent patron of the tavern, testified that there is a kitchen in the premises and a bedroom downstairs in which there is a bed, a dresser, a clothes closet cabinet and a nightstand.

Emily Carlisi, plaintiff’s wife, testified that her three children, two daughters and a son, reside with her at the Berkeley address, and that they have resided there for the past five years, and that her husband came home only on Sundays during those years. She stated that there were kitchen facilities in the tavern and that her daughter worked there as a cook. She testified further, that her husband occupies a bedroom in the tavern premises, has a bed, a nightstand, a lamp and a rug which she characterized as not very good, but enough for a man to get by on.

Alfonso Carlisi testified that he was fifty-four years of age and had been in the tavern business for twenty-five years. He said that he had resided in the Tornabene residence at 3641 53rd Street in Cicero during the years 1964, 1965, 1966 and the beginning of 1967, which was corroborated by Mrs. Mary Tornabene, and that he went home on Sundays. He testified that he resided six nights a week in the tavern premises at 3500 South Laramie. Photographs of a stairway going downstairs, a bed, a clothes wardrobe, a dresser in a room downstairs, were produced as exhibits.

The only person who directly testified that plaintiff did not live in the tavern premises, was an FBI agent. He testified that he examined the tavern premises on one occasion and based on that examination he was of the opinion that there were no living quarters on the premises. On cross-examination he testified that he couldn’t recall whether there were any kitchen facilities on the premises and when asked whether he made a detailed examination of what the premises actually consisted of, he replied, “no sir, I just went through.”

Q. “The answer is ‘no’ is that right?”

A. “That’s right.”

In my opinion, the evidence before the Commission does not support its order and is clearly against the manifest weight of the evidence. As stated in Hughes v. Illinois Public Aid Commission, 2 Ill2d 374, 380, 118 NE2d 14. “Residence has no fixed, exact meaning in the law, but may have a variety of meanings dependent upon the context in connection with which it is employed, as well as the subject matter involved and the purposes of such subject matter. Two elements are necessary to create a residence, (1) bodily presence in that place and (2) the intention of remaining in that place; neither alone is sufficient to create a legal residence.”

In evaluating the intent of the Dram Shop Act in relation to residence, the obvious and controlling consideration must be personal responsibility. To insure that responsibility, the licensee must not only be physically available, but he must be available to the local police. There was no evidence whatsoever that any police authorities or any other municipal departments had occasion to go to the tavern premises at nighttime and found that the plaintiff was not residing there. The evidence overwhelmingly shows that the plaintiff intended to personally reside in Cicero, Illinois, as his permanent residence, but he also maintained a separate home for his family in Berkeley, Illinois. See Garrison v. Garrison, 107 Ill App2d 311, 246 NE2d 9.

For the reasons indicated I am of the opinion that the judgment of the Circuit Court should be reversed.