author: MR. JUSTICE STAMOS

text:
    Nick Karris, Plaintiff-Appellee, v. Norman Goldman, Administrator of the Estate of Nicholas George Michale, a/k/a Nick Michale, Deceased, Defendant-Appellant.
    Gen. No. 52,712.
    First District, Fourth Division.
    December 17, 1969.

      Vogel & Vogel, of Chicago (Robert C. Vogel and Robert Guritz, of counsel), for appellant.
    Leonard M. Ring, of Chicago, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff brought an action for personal injuries under the provisions of the Structural Work Act (Ill Rev Stats, c 48, §§ 60-69 (1957)). Nick Michale, the general contractor, was originally named as a defendant but on February 14, 1967, his death was suggested and Norman Goldman, Administrator, was substituted as the defendant.

Plaintiff recovered a verdict of $50,000. Defendant appeals contending:

(1) that the court erred in not directing a verdict for defendant and in refusing to grant defendants’ motion for a judgment notwithstanding the verdict since the evidence failed to establish a cause of action under the Structural Work Act; and

(2) that the court erred in admitting into evidence the testimony of a witness whose identity was not furnished in plaintiff’s answers to interrogatories.

EVIDENCE

James Shwatal, witness on behalf of plaintiff, testified to the facts of the accident. Plaintiff was employed during the summer as a bricklayer’s helper for a subcontractor at the time of the occurrence. Shwatal was also employed by the same subcontractor as plaintiff and they were engaged on June 4, 1959, in supplying brick and mortar to bricklayers who were erecting the walls of the structure. A scaffold was set up along the outer length of the wall for a distance of approximately fifty-five feet. The scaffold consisted of a series of tubular steel supports upon which wooden planks were laid. The planks were approximately a foot wide, twelve feet long and two inches thick. The scaffolding was arranged to provide two working levels or tiers. The lower level was five to six feet above the ground and consisted of five planks. The upper level was two to two and one-half feet higher than the first level and consisted of three planks.

Shwatal worked on the ground level and passed up bricks and mortar to plaintiff who worked on the lower tier and in turn would pass up the bricks and mortar to the upper tier to the bricklayers who were engaged in building the wall. Shwatal would lift a shovelful of mortar from a source at ground level and deposit it on a mortar plate situated on the lower level or tier and plaintiff would then scoop off mortar with his shovel from the mortar plate to a mortar plate on the upper tier or level. In the process of lifting a shovelful of mortar, plaintiff stepped on the mortar plate from which he was removing mortar and the plate tipped causing him to fall to the ground and sustain injuries. The mortar plate was made of flexible steel about three feet square and weighed from twenty to thirty pounds. Plaintiff stepped on that portion of the mortar plate which was overhanging the edge of the outermost plank of the platform by approximately eight inches.

It is noted that the upper level consisted of three planks, with the innermost next to the wall of the building and that the lower level consisted of five planks, with the innermost likewise next to the wall. Thus, the lower level, extended beyond the one above by a distance equal to the width of two planks or about two feet. It was on this extended portion of the lower level where the mortar plate was situated and where plaintiff worked.

Plaintiff’s wife, mother, brother and sister all testified to his general good health before the occurrence and his subsequent manifestation of epilepsy and injury to his shoulder. There also was testimony that plaintiff was a law student at the time of the accident and had later passed the bar examination. Plaintiff was barred from testifying by reason of the death of Nicholas Michale.

Defendant did not adduce any evidence, but rested after plaintiff’s case.

OPINION

Defendant initially contends that plaintiff does not have a cause of action under the Act and argues that there is no evidence that the scaffold was unsafe in its construction or erection, but was eminently sturdy. Defendant also argues that the placing of ordinary tools and equipment upon a stationary platform cannot logically or semantically be construed to constitute an operation of the scaffold, especially where tools and implements, as here, a mortar plate, are placed upon an otherwise sound and sturdy scaffold.

In support of his contention, defendant cites Spiezio v. Commonwealth Edison Co., 91 Ill App2d 392, 235 NE2d 323 (1968) and Thon v. Johnson, 30 Ill App2d 317,174 NE2d 400 (1961).

In Spiezio the court held that a steel column, which was a permanent part of the structure under the circumstances of that case, was by custom and use intended to be used as a scaffold, support or mechanical contrivance within paragraph 60 of the Act.

In Thon the court held that a cement form upon which plaintiff stood could not be considered to be a scaffold.

We fail to see the applicability of these cases to the instant case.

In Schultz v. Ericsson, 264 Ill 156, 106 NE 236 (1914) the evidence revealed that a runway used by laborers to move their wheelbarrows was permitted to become cluttered with piles of bricks so as to narrow the passageway so that as the wheelbarrows were pushed and came abreast of each other, only three inches or so remained between them. There the plaintiff’s wheelbarrow had a protruding wire that became entangled in the wheelbarrow being propelled in the opposite direction and caused the plaintiff to lose his balance and fall.

The court in that case, at pages 167-168 said:

“Under these facts and circumstances as proven it might be fairly and reasonably have been found by the jury that the scaffold or runway on which appellee was required to work was permitted to become unsafe and of insufficient width to afford adequate protection to the men at work thereon, and that such condition was the proximate cause of appellee’s injury.”

At page 165 the court said:

“. . . and the employer cannot escape liability for a willful violation of the statute where he constructs an insufficient, unsafe and dangerous scaffold. . .

The obvious purpose of furnishing scaffolding was to provide platforms upon which plaintiff and his coworkers could engage in their work and to place thereupon equipment that was necessary in the performance of their assigned tasks. The sole test or criterion with which to determine whether the scaffold complies with the Act is not limited to its sturdiness or structural integrity, but it must also be of a size or dimension suitable for the anticipated equipment, tools or devices that are required to be placed thereon for the use of the workmen pursuing their assigned tasks,

It was a proper jury question to resolve whether the makeup of the platform and its dimension were sufficient and safe enough to accommodate plaintiff and the requisite equipment, and to provide sufficient space upon which plaintiff was to perform his task of shoveling. The jury could find, for instance, that the use of the mortar plate, which was 3 ft. square and weighed between 20 to 30 pounds with a portion thereof overhanging the outermost part of the scaffold, caused the scaffold to become insufficient, unsafe and dangerous.

We, therefore, hold that plaintiff had a cause of action within the provisions of the Act and the court properly denied defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

Defendant also contends that the testimony of the witness, Dr. Ellen Anderson should have been excluded, because her identity was not made known in plaintiff’s answers to interrogatories.

Plaintiff had advised defendant on January 30, 1967, in answers to interrogatories, that Dr. Frederic Gibbs would be a witness in behalf of plaintiff. At the time of trial however, Dr. Gibbs was out of the city and not available to testify, so Dr. Anderson, Dr. Gibbs’ partner and associate in the operation of an electroencephalographic laboratory, was permitted to testify to a test administered to plaintiff under Dr. Anderson’s direction and supervision on February 28,1967.

Dr. Anderson expressed an opinion that the tracings from the test showed manifestations of an abnormality, in that the brain waves were coming off at a different irregular rate than it is normally expected. The referring physician, Dr. Boshes, was advised that the test reflected an abnormal function of the brain of a type that can be epileptiform. Dr. Anderson also testified that plaintiff’s condition could last the rest of his life, but there could be improvement, but the witness was not sure.

Defendant’s interrogatories specifically requested the names and addresses of doctors who treated plaintiff. Dr. Anderson did not treat plaintiff, any more than a medical laboratory which responds to the treating physician’s request for examination and analysis of blood, urine or other specimens.

The case of Rosales v. Marquez, 55 Ill App2d 203, 204 NE2d 829 (1965), relied upon by defendant involved different facts from those of the case at bar. Plaintiff in that case on two separate occasions failed to answer interrogatories in violation of an order of court directing him to do so. In addition, the excluded witness was living within the city of Chicago rather than in Mexico as plaintiff related in his deposition.

Dr. Anderson’s first contact with plaintiff occurred a month after the answers were filed to the interrogatories. Supreme Court Rule 213 (e) provides:

“If a party makes an answer that is complete when made, he has no duty to supplement the answer to include information thereafter received, unless requested to do so by a timely supplemental interrogatory. ...”

No such request was made by defendant.

Nevertheless, we have examined the record to determine whether any harm has been done to defendant’s case. Rosales, supra.

Dr. Louis D. Boshes, whose practice is limited to neurology and psychiatry, testified on behalf of plaintiff that he initially saw plaintiff on October 1, 1963, when he sought to be managed for symptoms and to seek treatment for his epilepsy. Plaintiff advised him that he incurred a shoulder injury that was worsened by his seizures, having landed on his head and shoulder when he fell from the scaffold. Plaintiff consulted an orthopedic physician, who also testified on behalf of plaintiff, and administered treatment and performed surgery to plaintiff’s shoulder.

From plaintiff’s initial visit to Dr. Boshes on October 1, 1963, to the time of trial on June 20, 1967, plaintiff had been treated for epilepsy. Dr. Boshes related that in his opinion there was a causal connection between plaintiff’s condition of grand mal epilepsy and the injury he sustained when he fell from the scaffold, but could not express an opinion as to whether the condition would continue, but that it was serious.

On February 28, 1967, Dr. Boshes arranged for plaintiff to have an electroencephalogram taken in the laboratory of Dr. Gibbs and Dr. Anderson. Dr. Boshes testified that this test is used in connection with epilepsy cases and is for diagnostic reasons and to determine whether or not there is an improvement.

It was apparent that Dr. Boshes relied upon his own personal examination and tests to ascertain plaintiff’s affliction and its severity; this diagnosis and attendant treatment was administered to plaintiff three and one-half years before the time of the test testified to by Dr. Anderson. Dr. Anderson’s testimony was cumulative and the results of the electroencephalogram made on February 28, 1967, were corroborative of Dr. Boshes’ clinical diagnosis.

We find the trial court did not abuse its discretion in permitting Dr. Anderson to testify.

Defendant raised the issue of excessive damages in its reply brief and argued that “while the verdict rendered was not of astounding proportions, it cannot be denied that a $50,000.00 award to a successful young lawyer, whose professional and social interests have not suffered, is excessive in law.” However, defendant did not allude to any evidence from which we can find that the verdict was excessive.

We affirm the j udgment.

Judgment affirmed.

DRUCKER, P. J. and LEIGHTON, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herman Davis and Lee Hayden (Impleaded), Defendants-Appellants.
    Gen. Nos. 53,849-54,000. (Consolidated.)
    First District, Fourth Division.
    December 17, 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 appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Burglary. Ill Rev Stats 1967, c 38, § 19-1.

JUDGMENT

After a trial by jury, defendants were found guilty of burglary and sentenced to terms of 3 to 5 years (Hayden) and 2 to 3 years (Davis).

CONTENTIONS RAISED ON APPEAL

1. The State failed to prove all the material allegations of the indictment, and the court erred in permitting additional testimony after both sides had rested their cases.

2. Defendants were not proven guilty beyond a reasonable doubt.

EVIDENCE

Bahij Abdallah, for the State:

He is a partner with three of his cousins in a grocery store business, known as Jack’s Food Mart, located at 1435 West 69th Street, Chicago. On Saturday, April 6, 1968, he closed the store at 11:00 a. m., locking both front and back doors. He returned at 9:00 a. m. on April 8 and saw that the back door had been broken in and all the merchandise from the stock room and back room had been taken out, with the meat cases thrown on the floor. The following were missing: $1,000 in currency, $300 worth of food stamps, $1,000 worth of meat, $1,700 worth of groceries, drugs and sundries, and $100 worth of butcher equipment. Some of the merchandise, amounting to $250 in value, was recovered by the police.

Frank Cacucci, for the State:

On April 8, 1968, he was a youth officer with the Chicago Police Department, and was patrolling with Officers Luke, O’Connor, and Fialla. They were directed by radio at 12:30 a. m. to investigate a burglary at Jack’s Food Store. He observed five persons, including defendant Hayden, “alighting from the rear of the store.”. They were running and, when they refused to stop, a warning shot was fired. Three of the five were immediately taken into custody, including Hayden. Another man, defendant Davis, was pulled out from underneath a car and arrested also. The witness had not seen Davis in the store. At the scene, he observed a sledge hammer up against the bent back door and two automobiles containing cigarettes, groceries, fresh meats, and paper bags.

James O’Connor, for the State:

He also was a police youth officer. At about 12:30 a. m. on April 8, 1968, he observed figures in Jack’s Food Store who fled to the rear of the store. They drove the squad car to the rear and saw five figures fleeing from the store. Three stopped when the warning shot was fired, and were arrested, among them defendant Hayden. One of the two who continued running fired back two shots, and the police fired four shots in return, but they got away. There were two cars at the rear of the store, a Mustang and a Chevrolet station wagon, both loaded with cigarettes, meat, and toiletry articles. Although it was nighttime, the lighting produced by the street lights was fair.

Robert Luke, for the State:

He also was a youth officer on the date of the occurrence. He saw both defendants after they had been put in custody; otherwise, his testimony was in general corroboration of that of the other officers.

Herman Davis, on his own behalf:

He had been playing pool until 12:00 or 12:30 a. m. on April 8, 1968, and was walking home when he heard lots of noise near 69th and Bishop. He proceeded toward the area from which the noise was coming, to see what was “going on.” He saw looting going on in the store and heard someone in there say, “Hurry up.” He just “glanced around,” saw that somebody had put stuff in the car trunk, and then police jumped out, said “police,” and started shooting. He dived to the ground and crawled under a station wagon. The police found him with a flashlight and pulled him out.

He had been with defendant Hayden that night at the poolroom and walked with him to the store. He was never in the store. He next saw Hayden at the police station.

Lee Hayden, on his own behalf:

He was employed as a bellman at the Seneca Hotel on the date in question. He was with Herman Davis at a poolroom during the evening, and they left together. He was going to work. When they reached the store, he followed Davis to the end of the building, when the police appeared, started shooting, and eventually arrested him.

He was never in Jack’s Food Store. The people were in the store when he was arrested and he did not know any of them except Davis. Since the arrest, he saw Davis only once, and that was in court.

OPINION

Defendants first contend that the State failed to prove all the material allegations of the indictment since there was inadequate proof of the complete ownership of Jack’s Food Market. The parties agree that it was necessary to establish ownership to support a conviction for burglary. People v. Jamison, 92 Ill App2d 28, 235 NE2d 849. Bahij Abdallah testified that “we have a grocery store,” identifying “we” as “four cousins (he and three others) and all partners in that same location.” After all witnesses had testified and both sides had rested their cases, defendants’ attorney informed the court that the State had failed to prove its case by not showing the names of all the partners of Jack’s Food Mart. After hearing argument of counsel, the court, over defense objection, gave leave to the State to reopen its case for the sole purpose of showing who the three cousins were. Bahij Abdallah then took the stand and named his partners.

Defendants argue that by permitting this additional testimony, the court abused its discretion and deprived defendants of a fair trial. Both parties have noted in their briefs that permission to introduce additional testimony after a party has rested its case is “altogether a matter of discretion.” City of Sandwich v. Dolan, 141 Ill 430, 441, 31 NE 416; People v. Franceschini, 20 Ill2d 126, 169 NE2d 244. In a recent case substantially similar on its facts, People v. Cross, 40 Ill2d 85, 90, 237 NE2d 437 the court stated:

Proof of the corporate ownership was a formal matter and could not have taken the defendant by surprise. We find no prejudicial error in the ruling of the trial court permitting the reopening of the case.

In the instant case, that the State had inadvertently omitted proof of the partnership identity was evidenced by Abdallah’s reference to his partners on initial direct examination, and his identification of them as his cousins. As in Cross, supra, the added proof supplying their names was merely a formality, and under these circumstances we find that the discretion exercised by the trial court was not abused.

Defendants contend further, however, that the effect of allowing such testimony is prejudicial when, as in the instant case, the trier of fact is a jury rather than a judge. See People v. Wiemers, 225 Ill 17, 80 NE 45. Although there are obvious differences existing between these two types of criminal trials, the distinction is without significance in the context of this case, and the argument advanced by defendants appears vacuous. It should be noted that Cross also involved a jury trial; yet the trial court was held to have been free of error in reopening the case to permit further testimony of a similar nature.

Defendants next contend they were not proven guilty beyond a reasonable doubt. This point, too, is without merit. Defendants, by their own testimony, were placed together at the scene of the crime, but have attempted to justify or explain their presence, while denying participation. They must tell a reasonable story or be judged by its improbabilities. People v. Davis, 27 Ill2d 33, at 37, 188 NE2d 43. In the instant case, three police officers also testified to defendants’ presence, two of whom saw Hayden leaving the store. While Hayden testified that he was never in the store, it is not our function to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury in determining credibility of the witnesses. We find, therefore, that the conviction as to Hayden should be affirmed.

Defendant Davis was not found nor seen within the building, yet he admitted that he and Hayden had been together all evening and that he had accompanied Hayden to the scene of the burglary. An analogous sitúatian in People v. Clark, 30 Ill2d 67, 72, 195 NE2d 157 was treated in the following manner: See also People v. Nugara, 39 Ill2d 482, 236 NE2d 693. The circumstances surrounding Davis’ arrest, including his accompanying Hayden and his hiding under one of the automobiles which was loaded with loot, constitute sufficient evidence to justify the jury’s verdict.

While mere presence or negative acquiescence is not sufficient to constitute a person a principal to a crime, one may aid and abet without actively participating in the overt act, and if the proof shows he was present at the crime without disapproving or opposing it, the trier of fact may competently consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the criminal act, lent his countenance and approval, and was thereby aiding and abetting the crime.

Defendants also claim that they were prejudiced by their in-court identification without having been identified at a pretrial lineup. This argument must fall in a case such as this where the defendants were arrested at the scene of the crime.

The judgments of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J. and LEIGHTON, J„ concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Appellee, v. Samuel Gilmore, Appellant.
    Gen. No. 54,129.
    First District, Fourth Division.
    December 17, 1969.

      Sam Adam and Edward Marvin Genson, of Chicago, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Springfield (James B. Zagel, Assistant Attorney General, Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from his conviction for murder. He was found guilty by a jury and was sentenced to a term of fourteen to seventeen years. Defendant first appealed to the Illinois Supreme Court contending that the introduction of records of prior convictions for impeachment purposes violated his constitutional rights and that the prosecution’s final argument was unfair and prejudicial. The Illinois Supreme Court found that “ [n] either claim presents a substantial constitutional question, and on the Court’s own motion the cause is transferred to the Appellate Court for the First District.”

The defendant raises these same points on appeal in this court.

The defendant does not challenge the sufficiency of the evidence, and the facts may be briefly summarized. On October 18, 1965, at approximately 10:00 p. m. in the vicinity of Leavitt and Madison Streets in Chicago, Willie Harris was shot and killed by the defendant. Joe Lewis Phillips, a cousin of the deceased, was an eyewitness to the event. He observed the deceased drinking while he waited for him in his car. The defendant and a female passenger then drove up in the defendant’s car. The deceased and the defendant had an argument. Ultimately the defendant shot the deceased who was unarmed and moving away from the defendant. The defendant ran to his car, but before he could pull away, the police stopped him and placed him under arrest.

Three police officers also testified for the State. One of the arresting officers found two revolvers under defendant’s car, one of which was the murder weapon. He also found an open knife approximately five or seven minutes after the shooting, lying on the curb fifteen feet from the deceased. Between the deceased and where the knife was found is a paper stand. A crowd had gathered after the shooting. The wife of the deceased testified that this was not her husband’s knife.

A second police officer testified that when he arrived upon the scene, he observed Harris lying face down holding a lighted cigarette in his right hand. He took the cigarette out of his hand so he wouldn’t burn himself.

The third officer was present at the hospital where Harris was taken after the shooting. He observed a nurse remove a closed knife from a pocket of the deceased’s jacket. He further testified as an expert witness that one bullet was fired from the murder weapon while a second shell had misfired.

Leon Jones testified for the defense. He knew both the defendant and the deceased. On the night in question he saw the deceased standing in a restaurant located on the corner of Leavitt and Madison arguing with the defendant. He asked the deceased to refrain and led him by the arm into the street. The deceased then pushed him into a paper stand. He did not see deceased do anything and returned to the restaurant. Both the defendant and the deceased were sober.

A police detective, testifying for the defense, stated that the defendant was a police informant. On the night in question the defendant was told to look for a specific person who was wanted by the police. The defendant subsequently notified the police upon seeing the wanted man. The defendant had been seen in the company of other city and federal police officers.

Helen Gowdy testified for the defense. She is a narcotic addict and a police informant. She had used narcotics on the morning of October 18. She heard the deceased accuse the defendant of informing on his friend. The deceased was the aggressor in the argument and was threatening the defendant with a knife before the defendant shot him.

The defendant testified that he had provided information leading to the arrest of the deceased’s friend and that the deceased had demanded bond money for his partner. When he refused to provide the money, the deceased threatened him with a knife. He shouted a warning but the deceased continued to advance with the knife in his hand. He finally shot the deceased. He denied attempting to shoot the deceased twice.

On rebuttal the State offered into evidence the defendant’s 1953 conviction for “armed robbery” and his 1954 conviction for the sale of narcotics. These were introduced for the purpose of impeaching the defendant’s credibility.

The defendant contends that the court erred in allowing evidence of defendant’s prior convictions to be presented to the jury. When the defendant elects to take the stand to testify, he will be treated like any other witness, and a prior conviction may be properly used for impeachment of his credibility. People v. Williams, 17 Ill2d 193, 161 NE2d 295; People v. Lacey, 24 Ill2d 607, 182 NE2d 730; and People v. Wright, 72 Ill App2d 150, 218 NE2d 798. There is also a statutory provision authorizing the State to introduce a defendant’s prior conviction into evidence for the purpose of his impeachment. Ill Rev Stats 1965, c 38, § 155-1:

No person shall be disqualified as a witness in any criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility.

The defendant argues that this statute vests the trial court with the discretion to exclude prior convictions and that the trial court abused its discretion in this case. The defendant cites Luck v. United States, 348 F2d 763, to support this contention. In Luck the court determined that the word “may” in the District of Columbia statute gave the trial court the discretion whether or not to admit evidence of prior convictions.

In State v. Hawthorne, 49 NJ 130, 228 A2d 682, the New Jersey Supreme Court discussed the use of the word “may” as it appeared in their impeachment-of-witness statute. (It should be noted that the New Jersey statute is substantially the same as ours.) In Hawthorne, supra, 684, the court said:

Thus, the “may” in the statute does not bespeak a grant of permission or discretion to the trial judge to receive or reject the proof. On the contrary, the parties are invested with the option and if it is exercised the examination must be allowed or the record of conviction received when offered.
The trial judge cited Luck v. United States, 121 US App DC 151, 348 F2d 763 (DC App 1965), in support of his view as to the import of the New Jersey statute. The District of Columbia code is substantially the same as ours, saying that the fact of a witness’s conviction of crime “may be given in evidence to affect his credit as a witness.” The Court of Appeals declared that the word “may” leaves room for the exercise of judicial discretion respecting the admissibility of a prior conviction of a defendant. We consider that construction strained and not justified by the context of the statute.

Since the presentation of evidence to show an interest or prior conviction is the responsibility of the parties and not of the court, we too hold that “may” does not grant discretion to the court to receive or reject the proof of a prior conviction. When properly presented it is mandatory that the court receive evidence of defendant’s prior conviction.

The defendant next argues that it is fundamentally unfair “to require a defendant to present evidence of his affirmative defense of self-defense, and then use his prior conviction to impeach his credibility.” However, in the instant case the defendant’s testimony was not essential to establish his defense since Helen Gowdy testified that the deceased was the aggressor and came at the defendant with a knife. The defendant voluntarily testified in his own behalf, and like that of any other witness his credibility could be impeached by the use of prior convictions for infamous crimes.

The defendant next asserts that the jury was not capable of considering the introduction of his prior convictions solely for impeachment purposes. The State’s Instruction 5 admonished the jury that defendant’s prior convictions were to be considered by them only for the purpose of affecting his credibility. In People v. Cuttley, 82 Ill App2d 321, 226 NE2d 479, a similar jury instruction was given and the defendant claimed that “evidence of defendant’s prior criminal record is deemed by the courts to be so prejudicial that it violates defendant’s right to a fair trial.” The court, at page 328, found that:

The introduction of the record of conviction of an infamous crime for the purpose of affecting the credibility of such a witness is authorized by the Evidence Act (Ill Rev Stats, c 51, § 1) and by the “Code of Criminal Procedure of 1963” (c 38, § 155-1). See, also, People v. Schanda, 352 Ill 36, 185 NE 183 (1933); People v. Buford, 396 Ill 158, 161, 71 NE2d 340 (1947). The record here and the law on this point show that the action in the trial court was proper and, therefore, we find no error.

The defendant also argues that the introduction of his prior conviction for “armed robbery” rather than “robbery” should be considered as reversible error. At trial the State introduced into evidence two certified copies of defendant’s previous convictions, one for the sale of narcotics and the other for “armed robbery.” The defendant, through his attorney, immediately informed the court that he had been convicted for “robbery” and not “armed robbery” but offered no proof thereof. In his post-trial motion the defendant moved for a new trial on the ground that the record of conviction for “armed robbery” was erroneous and prejudicial. He attached a corrected record which showed that defendant was actually charged and found guilty of “robbery.” The court properly denied this motion. The sole purpose for the introduction of defendant’s prior convictions was to affect his credibility and not to establish his guilt. Therefore, we find no prejudicial error requiring a reversal of defendant’s conviction because of the State’s introduction of a conviction for “armed robbery” when the corrected record showed a conviction of “robbery.”

The defendant also argues that the introduction of his prior convictions should have been excluded on the ground of remoteness. The defendant relies upon People v. Henneman, 323 Ill App 124, 54 NE2d 745, and State v. Hawthorne, 90 NJ Super 545, 218 A2d 430, where the courts disallowed the introduction of prior convictions as being too remote. (Ten years in Henneman and twenty years in Hawthorne.) In People v. Brown, 69 Ill App2d 212, 218, 215 NE2d 812, the court discussed this same argument:

“The defendant also argues that the trial court erred in admitting evidence of his prior convictions of infamous crimes because they were too remote in point of time. In support of this contention he cites People v. Henneman, 323 Ill App 124, 54 NE2d 745 (1st Dist 1944). In Henneman, the court held that it was error to admit into evidence the record of defendant’s conviction 21 years previously, for a crime committed when he was 18 years of age.

“Since the date of the opinion in Henneman, the Supreme Court has decided this question adversely to defendant in the case of The People v. Buford, 396 Ill 158, 71 NE2d 340 (1947). At page 162 the court stated:

“ It is next contended that the record of prior conviction should not have been introduced because it was too remote in point of time, .... The introduction of such record of conviction for the purpose of affecting the credibility of a witness, or the defendant who has voluntarily testified, is provided for by statute. The statute fixes no limitation as to the time of such previous conviction. (Ill Rev Stats 1945, c 38, par 734, p 1271.) This contention cannot be sustained.’ ”

Again, in People v. Smith, 90 Ill App2d 310, 234 NE2d 31, the court found that the introduction of a prior conviction some twenty years earlier was not too remote.

The Hawthorne decision relied upon by defendant was reversed and remanded by the New Jersey Supreme Court in State v. Hawthorne, 49 NJ 130, 228 A2d 682. The court found that the motion to suppress the introduction of defendant’s conviction twenty years prior to the current trial should not have been granted. The court cites People v. Buford, 396 Ill 158, 71 NE2d 340, in support of its finding.

We believe that the court in the instant case properly allowed the State to introduce the defendant’s prior convictions into evidence for the purpose of impeaching his credibility.

It is also argued by the defendant that the prosecution’s denunciation of him as a murderer during closing argument was reversible error. He cites People v. Kirkendoll, 415 Ill 404, 114 NE2d 459, and People v. Fort, 14 Ill2d 491, 153 NE2d 26. However, in both of these cases the prosecutor referred to prior crimes not disclosed by the evidence.

In People v. Lindsay, 412 Ill 472, 107 NE2d 614, the defendants were convicted of murder and contended that the prejudicial argument of the prosecutor deprived them of a fair trial. The court, at page 484, found that:

While it is improper for the prosecutor to make statements the only effect of which is to inflame the passions or develop the prejudices of the jury without throwing any light upon the issues, he nevertheless has a right to denounce a defendant as guilty of the crime charged if the evidence fairly tends to prove his guilt, and to draw inferences unfavorable to defendant if based on the evidence. (People v. Reed, 333 Ill 397; People v. Anderson, 403 Ill 128.)

See also People v. Halteman, 10 Ill2d 74, 139 NE2d 286.

We find no reversible error in this portion of the State’s argument to the jury.

Defendant also claims that the State’s entire closing argument was vicious, misleading and intentionally calculated to inflame the passions of the jury and thus irrevocably prejudiced the defendant. In People v. Wilson, 116 Ill App2d 205, 253 NE2d 472, the court stated:

It is impractical to lay definite guidelines for what may and what may not be said in argument to a jury. People v. Jenko, 410 Ill 478, 102 NE2d 783. What impropriety in jury argument will constitute ground for reversal depends on the language used and the circumstances of its use. A judgment will be reversed only when it is clear that improper remarks in argument influenced the jury in a manner substantially prejudicial to the accused. People v. Stahl, 26 Ill2d 403, 186 NE2d 349; People v. Allen, 17 Ill2d 55, 160 NE2d 818.

After a careful review of the several incidents mentioned by the defendant concerning the prosecution’s closing argument, we are of the opinion that they were based upon the evidence presented to the jury and from legitimate inferences drawn from this evidence. They do not require a reversal of the judgment.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    Chrysler Credit Corporation, Plaintiff-Appellant, v. M.C.R. Leasing Co., Inc., and Aurora Chrysler-Plymouth, Inc., Defendants-Appellees, and Northern Illinois Corporation, Intervenor-Appellee.
    Gen. No. 69-87.
    Second District.
    December 18, 1969.
    Rehearing denied January 6, 1970.
    Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellant.

      O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellees.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal is from the granting of a summary judgment.

On December 12, 1968, the Chrysler Credit Corporation, plaintiff, instituted a replevin action against M.C.R. Leasing Company, Inc. (M.C.R.) and Aurora Chrysler-Plymouth, Inc., (Aurora). The petition alleged that M.C.R. and Aurora had possession of some 64 automobiles which were the property of the plaintiff. The writ of replevin was executed and the plaintiff took possession of the automobiles.

Aurora is a corporate authorized dealer for the sale of Chrysler and Plymouth automobiles and M.C.R. is a corporation which engages in the leasing of automobiles. Both of these corporations occupy the same premises and have a common ownership.

On February 21, 1969, after obtaining leave of court, the Northern Illinois Corporation (referred to as defendant herein) filed an intervening petition alleging, inter alla, that it had financed the purchase of automobiles by Aurora, that it had filed a financing statement with the Secretary of State as provided by the Commercial Code (Ill Rev Stats 1967, c 26, § 9-401 et seq.) and that each purchase of a motor vehicle by Aurora, since July of 1968, had been covered by a security agreement. The petition, in addition to setting forth a list of motor vehicles which it financed, stated that they were seized by plaintiff under the writ of replevin, that the defendant had not been paid for said automobiles and that, by virtue of its security agreement, it was the owner of and entitled to the possession of the vehicles so listed.

On January 27, 1969, an order was entered requiring the production of the records of both Aurora and M.G.R. along with an injunction restraining the agents and officers of said corporations from disposing of any records and requiring them to be made available to the parties for inspection and examination. This Court has disposed of an appeal from this order. (114 Ill App2d 43; 251 NE2d 648 (1969).)

On March 7, 1969, defendant filed a motion for summary judgment supported by supplemental affidavits which, in addition to the matters set forth in the petition to intervene, alleged that none of the vehicles listed and claimed by plaintiff have been titled by the State of Illinois; that defendant was in possession of the manufacturer’s certificate of origin covering said automobiles; that the defendant had periodically inspected the automobiles and their certificates of origin, both of which were located at the premises of the two corporations; and that prior thereto the defendant had no knowledge that any person or firm claimed or could claim any interest in the vehicles.

The counteraffidavit filed by plaintiff alleged that it financed operations of M.C.R. and advanced funds to that company for the purpose of allowing it to purchase automobiles from Aurora; that the order for production of records previously entered by the trial court had not been fully complied with and that approximately one-sixth of the records ordered to be produced had been produced for inspection; that the records so far inspected disclosed there were instances in which the files of M.C.R. contained executed applications for title, forms for bills of sale, motor vehicle keys and other indications that M.C.R. had purchased automobiles from Aurora.

The trial court after considering the affidavits, granted the motion for summary judgment and ordered that 27 vehicles be turned over to the defendant. The basis for the order was that the plaintiff failed to comply with the Security Interests of the Motor Vehicle Act (Ill Rev Stats 1967, c 95½, § 3-201 et seq.). This enactment, in addition to extinguishing the security interest created by a manufacturer or dealer when the vehicle is sold to a buyer in the ordinary course of business, also provides that a security interest is not valid against creditors of the owner unless the application for certificate of title sets forth the name and address of the lienholder and the date of his security agreement. Such security interest is “perfected as of the time of its creation if delivery is completed (to the Secretary of State) within 21 days thereafter, otherwise as of the time of delivery.”

The plaintiff argues that the security interest of the defendant ceased when Aurora sold the vehicles to M.C.R. because in addition to the above provisions of the Motor Vehicle Act, the Commercial Code allows a buyer, in the ordinary course of business, to purchase property free of a security interest even though the buyer knows the existence of such interest (Ill Rev Stats 1967, c 26, § 9-307).

The defendant contends that a “sale” is consummated, where delivery is to be made without moving the goods, when the seller delivers the documents of title and then title passes at the time when and the place where he delivers such documents (Ill Rev Stats 1967, c 26, §2-401(3) (a)).

The discovery procedure previously ordered in the case had not been completed at the time the court ruled on the motion for summary judgment. The affidavits filed by both parties are very general and use all-encompassing terms. It appears that Aurora and M.C.R. conducted their business on the same premises. Whether there was a delivery of the documents of title at the time of the alleged sale cannot be determined from the record before us. The defendant’s affidavit claims that the manufacturer’s certificate of origin was held by Aurora and that it made periodic inspections of the certificates and vehicles, both being located at Aurora’s premises. However, an exhibit attached to the motion states that the defendant had possession of the certificates. From whom they were received, when or how they came into such possession is not disclosed. This, we feel, is important in determining if a transfer of documents had been made or a sale completed, especially under the circumstances of this case where the alleged purchaser and seller are, for all practical purposes, the same entity.

Whether the plaintiff perfected a security interest in the vehicles under section 3-201 et seq., supra, does not preclude it from establishing a sale of the vehicles from Aurora to M.C.R. but only determines its right of priority to the security involved. On the other hand, if the plaintiff is able to establish that a sale in fact was had as claimed in its affidavit, then the rights and security interest of the defendant have been altered.

The purpose of a summary judgment proceeding is to determine if there is a genuine triable issue of fact. The right of the moving party must be free from doubt and the affidavits in support of the motion for summary judgment will be strictly construed, while the affidavits filed in opposition thereto will be liberally construed. Nathan v. Leopold, 108 Ill App2d 160, 171-172, 247 NE2d 4 (1969); Ruby v. Wayman, 99 Ill App2d 146, 240 NE2d 699 (1968).

From a review of the record we conclude that there are genuine triable issues of fact to be determined and therefore the summary judgment must be reversed.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


text:
    Otis Kidd, Jr., Plaintiff-Appellant, v. County of Stephenson, Alvin Stine, Buford Lower and Dennis Lamoreux, Defendants-Appellees.
    Gen. No. 69-88. (Abstract of Decision.)
    Second District.
    December 18, 1969.
    Nettles and Mahoney, of Freeport, for appellant; Bert P. Snow and Dexter A. Knowlton, State’s Attorney, of Freeport, for appellees.
   Opinion by PRESIDING JUSTICE MORAN. Not to be published in full.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James E. O’Neal, Defendant-Appellant.
    Gen. No. 52,987.
    First District, Third Division.
    December 18, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, James O’Neal, was charged with two counts of armed robbery and two counts of aggravated battery. After a jury trial, defendant was found guilty on all four counts. He was sentenced to terms of 20 to 40 years on each count of armed robbery, and to terms of 5 to 10 years on each count of aggravated battery, all sentences to run concurrently.

Defendant appeals, contending that the opinion evidence of the ballistics expert was improperly admitted; that evidence of a separate and unrelated crime was improperly introduced; that certain prejudicial hearsay evidence was erroneously introduced; that defendant was deprived of the assistance of counsel at the preliminary hearing; that the court erred in imposing separate sentences for crimes arising out of the same conduct; and that the sentences imposed on defendant were excessive and should be reduced.

On February 26, 1967, at about 10:30 p. m., after a telephone call, Leslie Johnson and Francis Kelly, the complaining witnesses, drove to downtown Chicago to a restaurant to purchase some marijuana. At the restaurant they met defendant and another man identified as Bill. After a conversation, the four men proceeded in Kelly’s car to the south side to pick up the marijuana. At their destination, Bill was given forty dollars by the complaining witnesses and left the car to get the marijuana. After waiting for Bill for a while, defendant suggested that they wait inside the building. After they entered the building hallway, defendant drew a gun, and ordered the complaining witnesses to take out their wallets and raise their hands. Defendant then shot Johnson in the arm, picked up the wallets, and left the building. Johnson and Kelly went to a hospital. At the hospital, Johnson told the police that he was the sole victim of the crime, and Kelly did not report to the police that he was robbed until several days later. At the hospital, a police officer removed a spent bullet from Johnson’s overcoat, and identified the bullet in court. Police officers arrested defendant on March 5, 1967, and found a gun on his person. At trial Johnson identified that gun as the one used by defendant on the night in question.

Officer Burt Nielsen, a firearms identification technician employed by the Chicago Police Department Crime Laboratory, testified as to his duties at the crime laboratory and his qualifications as a ballistics expert. He also explained laboratory ballistics procedures. When a weapon is received at the laboratory it is classified as to type, caliber, make and model. Each gun has class characteristics common to its particular make and model. In addition, each gun has its own individual characteristics. In constructing a gun barrel, the barrel is drilled, reamed, and then a cutting tool is used to place spiral lanes and grooves into the barrel. This process, which consists of tearing metal from metal through harder metal, causes small microscopic imperfections in the bore of the gun. As a bullet is fired through the gun barrel, it picks up these imperfections left by the cutting tool. After the gun is received at the laboratory, if operable, it is fired into a bullet recovery box. The bullet in question is then compared with the test bullet under a comparison microscope.

A comparison microscope consists of two identical microscopes mounted side by side and connected by an optical bridge. That bridge has a single eyepiece with a split' field of view, enabling the operator to see half the image under the right microscope and half the image under the left microscope. The bullets are mounted on spindles which in turn are on stages and these stages can be moved up and down.

Nielsen identified the gun taken from the defendant as the one he received at the laboratory on March 7, 1967. He identified the bullet found in Johnson’s overcoat as the one he received on February 28, 1967. He fired the weapon twice on March 9, and following the aforementioned procedures, he compared the two test bullets with the one in question. On the basis of the tests, he determined that the bullets were fired from the same gun. Photomicrographs of the bullets are never taken at the Chicago Police Department laboratory.

Defendant first contends that the opinion evidence of the ballistics expert was improperly admitted. Defendant apparently concedes the witness’s expertise in the field of ballistics. Defendant also recognizes that a properly qualified ballistics expert may offer his opinion as to whether a bullet was fired from a gun in question. People v. Fisher, 340 Ill 216, 172 NE 743 (1930). However, defendant argues that in the instant case there was no factual basis in the evidence to support the expert’s conclusions that the basis of his opinion was not placed before the jury, that either the test bullets, photomicrographs, or an explanation of the particular similarities should have been offered into evidence; and that as a result defendant’s right to proper cross-examination was improperly restricted.

The function of an expert witness is to draw inferences from facts which the jury is ordinarily unqualified to draw. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826 (1962). However an expert opinion must be based upon facts in evidence. Kanne v. Metropolitan Life Ins. Co., 310 Ill App 524, 34 NE2d 732 (1941); Carlson v. New York Life Ins. Co., 76 Ill App2d 187, 222 NE2d 363 (1966). The admissibility of expert testimony is conditioned upon the laying of a proper factual foundation. Marshall v. First American Nat. Bank of Nashville, 91 Ill App2d 47, 233 NE2d 430 (1968). Where the expert bases his opinion upon facts personally known to him, he must testify to those facts. Department of Public Works and Buildings v. Oberlaender, 92 Ill App2d 174, 235 NE2d 3 (1968). The reason for this requirement is to act as a safeguard for the reliability of the expert’s testimony. Marshall v. First American Nat. Bank of Nashville, supra. See 2 Wigmore on Evidence (3rd ed 1940, §417).

We find that the expert’s opinion in the instant case was properly admitted. The witness testified that he received the gun and bullet in question at the laboratory; and the gun and bullet were introduced into evidence. He also testified that he fired the gun twice, and that he compared the test bullets with the one in question. He testified to the procedure generally used and to the reasons why a comparison of bullets will reveal the identity of the gun which fired them. On the basis of these tests, he was of the opinion that the gun found on defendant’s person fired the bullet found in the complaining witness’s coat. The expert witness set forth the reasons for his conclusion, and it was for the triers of fact to determine how much weight to give to his testimony. It should also be noted that the bullet and gun in question were introduced into evidence, and that defendant was not foreclosed from conducting similar tests, either prior to or during trial.

Other jurisdictions also have allowed the conclusions of a ballistics expert even though demonstrative evidence had not been introduced. In McKenna v. People, 124 Colo 112, 235 P2d 351 (1951), the court held that the ballistic expert’s testimony was proper without the introduction of photomicrographs, stating that the latter were inaccurate to some degree. In State v. Wojculewicz, 140 Conn 487, 101 A2d 495 (1953), the court held that the introduction of the test bullet is not essential to the admissibility of the expert’s testimony. And in People v. Buckowski, 37 Cal2d 629, 233 P2d 912 (1951), it was held that the oral testimony of the ballistics expert as to the bullets in question was sufficient to support his conclusions.

Defendant next argues that the testimony of a witness concerning a separate and unrelated crime constituted prejudicial error.

Over objection of defendant, Officer Correntano was allowed to testify that, when he arrested defendant, a gun was found on defendant’s person. After the officer testified that he found the gun on defendant and saw it again at the police station, the prosecutor, in establishing the chain of possession of the gun, then asked when he next saw the gun. The officer replied that he next saw it “in court on an unlawful use of weapons.” The trial judge, while denying a defense motion for a mistrial, stated that the remark was practically inaudible, and directed the jury to disregard the remark if they heard it. The judge also instructed the witness to confine himself to answering the questions. Prior to the officer’s taking the stand, the defense offered to stipulate that the gun was found on defendant’s person, but the State rejected the proposed stipulation.

While introduction into evidence of separate and unrelated offenses is generally prejudicial error, People v. Peto, 38 Ill2d 45, 230 NE2d 236 (1967), evidence of another crime is admissible when relevant to the matter on trial. People v. Carter, 38 Illd 496, 232 NE2d 692 (1967). Facts and circumstances attending the arrest of an accused may be introduced into evidence where they tend to connect defendant with the commission of the offense for which he is on trial. And evidence which tends to prove any fact material to the issue on trial is properly introduced even though it proves defendant guilty of another crime. People v. Tomaszewski, 406 Ill 346, 94 NE2d 154 (1950).

In the instant case, the State was entitled to introduce the facts and circumstances concerning the arrest of the defendant and his possession of the gun. The gun was an important piece of evidence, connecting the defendant with the charges for which he was being tried. The record reveals that the assistant State’s Attorney was careful in not going into any additional detail concerning the arrest and seizure of the gun. His question to the officer as to when next the latter saw the gun was proper. The trial judge promptly struck the unresponsive answer of the witness and directed the jury to disregard it, indicating at the same time that he did not think the jury had heard the remark. We find that evidence concerning the arrest of defendant while in possession of the gun was competent. We also find that the unresponsive answer of the officer, particularly in view of the prompt action of the trial judge, did not constitute prejudicial error.

Defendant next contends that the State erroneously was allowed to introduce certain hearsay evidence by indirection. On cross-examination, defense counsel asked Kelly if he at any time had ever told anyone that he had been robbed on February 27. Kelly stated that he so informed Officer Gardner on March 1 during a telephone conversation. Officer Gardner was not called as a witness by the State, but Officer Friedl was asked by the prosecutor if he had a conversation with Officer Gardner and when that conversation took place. The court sustained a defense objection to a question as to whether Kelly’s name was mentioned in that conversation. Defendant argues that this testimony gave the impression that Kelly’s testimony that he reported the incident a few days after the crime was corroborated.

Testimony that out of court conversations took place does not constitute hearsay evidence, although a recital of the contents of such conversations may be. People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963).

Questioning Friedl as to whether he had a conversation with Gardner was not improper. As we have noted, the court then sustained defendant’s objection to the question as to whether Kelly’s name was mentioned in that conversation. The asking of such a question, although improper, did not constitute the introduction of prejudicial hearsay evidence. A case cited by defendant, People v. Crews, 42 Ill2d 60, 244 NE2d 593 (1969), is not in point. In that case, the specific content of the conversations was, by indirection, elicited from the witness. That did not occur in the instant case, and we find that no prejudicial hearsay evidence was introduced.

The defendant also argues that the court erred in denying defendant’s motion to provide another preliminary hearing at which defendant would have assistance of counsel.

At preliminary hearing defendant made a request that he be allowed to confer with a public defender. The examining magistrate proceeded to conduct the preliminary hearing and held defendant over to the grand jury without providing counsel. At the time of trial, the defense moved that another preliminary hearing be conducted prior to trial so that defendant would have counsel. The trial court denied the motion. Defendant argues that a preliminary hearing is a critical stage in a criminal proceeding in Illinois, and that therefore his constitutional right to the assistance of counsel was violated, and also that he was deprived of his right to discovery in the failure to provide counsel.

These contentions have been rejected by the Illinois Supreme Court. People v. Bonner, 37 Ill2d 553, 229 NE2d 527 (1967). In Bonner, the court held that a preliminary hearing in Illinois was not a critical stage in the proceedings, and that therefore it was not necessary that counsel be present, nor was it necessary that a preliminary hearing be conducted.

Defendant next contends that the charges of armed robbery and the charges of aggravated battery arose out of the same transaction, and that therefore it was error to impose separate sentences for the aggravated battery charges. In its brief, the State concedes that this is true. Accordingly, the judgments for aggravated battery are reversed.

Defendant, without citing any authority, also suggests that the two armed robbery charges constituted one act, thus permitting only one sentence. We find that the armed robberies of Johnson and Kelly were separate and distinct crimes, and that the trial court did not err in imposing separate sentences for each robbery.

Defendant finally contends that the sentences of 20 to 40 years for the armed robberies were excessive, and should be reduced by this court.

When the sentences under review are within the statutory limits, as they are in this case, they will not be disturbed unless they constitute a clear departure from fundamental law or are not proportioned to the nature of the offense. People v. Gold, 38 Ill2d 510, 232 NE2d 702 (1967). In the instant case, defendant was found guilty of robbing two men at the point of a gun. As the victims held their arms up, defendant shot one of them, picked up their wallets and fled. We find that the punishment is not disproportionate to the nature of defendant’s conduct, and we will not reduce the penalties imposed for the armed robberies.

The judgments and sentences for the armed robberies are affirmed, and the judgments for the aggravated battery are reversed.

Affirmed in part, reversed in part.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry Barnes, Defendant-Appellant.
    Gen. No. 53,213.
    First District, Third Division.
    December 18, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Henry Barnes, was charged with the crimes of burglary with intent to commit rape, burglary with intent to commit theft, rape and aggravated battery. At the conclusion of a jury trial, the trial court directed a finding of not guilty to the charge of burglary with intent to commit theft, and the jury found defendant not guilty of rape and of burglary with intent to commit rape, but guilty of aggravated battery. The trial court sentenced defendant on that charge to a term of 7 to 10 years in the penitentiary. Defendant appeals, contending that the court erroneously denied his motion for a discharge under the Fourth Term Act, 111 Rev Stats 1967, c 38, § 103-5, that he was not proved guilty of aggravated battery beyond a reasonable doubt, and that the sentence was excessive and should be reduced by this court.

Complainant was a resident of a small Chicago hotel. On April 14, 1966, she left the window in her room partially open, and went to sleep. During the early morning hours of April 15, she was awakened by a man who forced her to have intercourse with him, and then attempted to force her to submit to other sexual indignities. She struck defendant with a bottle, and he hit her over the head with a stick. He then cut her with a knife, dragging the knife down her face and all the way down her arm. She escaped from the room, and ran screaming to the desk clerk. The desk clerk saw her nude and bleeding from the head. The police came, and took the complaining witness to the hospital. Although her assailant had a scarf over his head when he first entered, she had several opportunities to see his face during the encounter. The bathroom light was on continuously, and after the act of intercourse occurred, the attacker turned on a light in the bedroom. She described her assailant to the police as being a male Negro, 30 to 35 years old, 5 feet, 8 inches tall, 140 pounds, lightskinned, and with black, short, curly hair. About two weeks after the occurrence, she saw defendant in a tavern. Subsequently the police showed her some pictures, but defendant’s picture was not among them. On May 1 the police showed her additional pictures, and on May 6 she identified defendant in a lineup. When she saw defendant’s picture, she told police that was the curly, wavy hair that she had pulled.

Defendant and his landlord testified that he was home sleeping on the night in question. Defendant testified that he was 5 feet, 4 inches tall, weighed 117 pounds and was 41 years old.

Defendant first contends that the court erred in not discharging him under the Fourth Term Act. Defendant was arrested on May 6, 1966, and was unable to post bond. On September 19, 1966, defendant filed a motion to dismiss on the grounds that he had not been brought to trial within the requisite 120 days, and that he had not caused any delay. The trial court denied that motion on the grounds that defendant had contributed to the delay by requesting a continuance on May 9, 1966. On that date, defendant answered ready at the preliminary hearing. However, after the complaining witness testified, defendant informed the judge that they had the wrong man and that he had witnesses who could verify his whereabouts. The court told defendant to bring in his witnesses, and continued the hearing until June 7, noting that the continuance was made on motion of defendant. Defendant stated that he had no way of bringing in the witnesses.

The issue is whether defendant’s actions and statements to the court at the time of preliminary hearing caused the delay so as to toll the running of the statute.

Where a defendant requests a continuance, the four-term statute will be tolled. People v. Canada, 81 Ill App2d 220, 225 NE2d 639 (1967). Where no continuance is requested, but the delay is caused by defendant’s own actions, the statute will be tolled. People v. Stuckey, 83 Ill App2d 137, 227 NE2d 135 (1967).

We find that defendant’s statements at the preliminary hearing contributed to the delay, and that the trial court properly denied his motion for a discharge. While defendant originally answered ready at the preliminary hearing, he subsequently stated that he could bring in witnesses to disprove the testimony of the complaining witness. Although the judge could have held defendant over to the grand jury immediately, he afforded defendant an opportunity to bring in his witnesses. Notwithstanding defendant’s later statement that he had no way of bringing the witnesses into court, we believe that the judge at preliminary hearing was extending an additional benefit to defendant in granting the continuance, and that the delay must be attributed to defendant so as to toll the running of the statute.

Cases cited by defendant are distinguishable from the instant case. In The People v. House, 10 Ill2d 556, 141 NE2d 12 (1957), the trial court suggested a continuance without request by defendant. In The People v. Wyatt, 24 Ill2d 151, 180 NE2d 478 (1962), a bystander at arraignment suggested a continuance. In People v. Rice, 109 Ill App2d 212, 248 NE2d 332 (1969), the court held that failure of an attorney to appear at arraignment was not a delay attributable to defendant where the attorney had filed no appearance and had advised the trial court and State that he did not represent defendant. In the instant case, defendant’s own statement contributed to the delay.

Defendant next contends that he was not proved guilty of aggravated battery beyond a reasonable doubt. He argues that the identification was vague and uncertain, and that the jury verdict was inconsistent since he was found guilty of aggravated battery, but not of rape.

As to the identification, its sufficiency ordinarily raises the question of credibility, which is to be determined by the triers of fact. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963). The complaining witness had ample opportunity to observe her assailant. Although he had a scarf over his head when he first entered the room, she testified that she was able to observe his face several times during their struggle. The bathroom light was lit continuously, and defendant turned on a light in the bedroom after the act of intercourse had taken place. The complaining witness gave the police a reasonably accurate description of defendant. She identified defendant from a group of photographs, and it should be noted that this identification was made from the second group of photographs shown to her. She also identified defendant in a lineup. The fact that she saw defendant in a tavern subsequent to the crime does not weaken her identification. Nor does mention of defendant’s short, curly hair to the police officer suggest that her identification was uncertain, but merely indicates that she was impressed by the hair. We do not find the testimony of the complaining witness so unsatisfactory as to raise a reasonable doubt as to her identification of defendant.

We also reject defendant’s contention that the jury verdicts were inconsistent or a compromise, since defendant was found guilty of aggravated battery, but acquitted of rape and of burglary with intent to commit rape. The verdicts were not inconsistent. While accepting the complaining witness’s identification of defendant, the jury was not compelled to believe that a rape had occurred. Testimony about the rape came only from the complaining witness, but there was additional corroborative evidence received about the aggravated battery charge. Both the desk clerk and the police testified that she was bleeding, so much so that the officer took her to a hospital.

A case cited by defendant in support of the proposition that the verdicts were inconsistent, People v. Griffin, 88 Ill App2d 28, 232 NE2d 216 (1967), is not in point. In that case the court held that a conviction for robbery could not stand, where on identical evidence the codefendant was acquitted.

Finally, defendant contends that his sentence of 7 to 10 years was excessive and should be reduced.

While reviewing courts have the power to reduce sentence, Supreme Court Rule 615 (b) (4); Ill Rev Stats (1967), c 110A, § 615(b) (4), this power should be used sparingly and only in cases where it appears that some substantial prejudice to the rights of the defendant has occurred. The imposition of sentence is peculiarly within the discretion of the trial court, and unless clearly abused the court of review will not interfere. People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503 (1965); People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965).

Defendant was found guilty of assaulting a woman in her room. He struck her on the head with some sort of stick, then cut her face and arm with a knife, causing her to bleed profusely and necessitating that she be taken to a hospital. Although defendant, 41 years old, had only a previous misdemeanor conviction for possession of a knife, under the circumstances of the crime in question, we cannot say that the sentence imposed was inappropriate. At the time of sentencing, the trial judge confined himself to a. consideration of what he characterized as a serious assault resulting in serious injuries. The record does not disclose that the sentence was the result of any bias, prejudice or abuse of discretion.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Peter P. Harrison, Defendant-Appellant.
    Gen. No. 53,684. (Abstract of Decision.)
    First District, Third Division.
    December 18, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas M. Walsh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE McNAMARA. Not to be published in full.


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene E. Tucker, Defendant-Appellant.
    Gen. No. 51,884.
    First District, First Division.
    December 19, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Dolores Horan, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Gerald T. Rohrer, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant, Eugene E. Tucker, was convicted of armed robbery of $213, and sentenced to the Illinois State Penitentiary for a term of 5 to 15 years. On appeal he claims that the identification by the sole eyewitness was not positive; that the lineup in which he appeared violated his right to due process of law; that evidence of another crime was admitted, which was highly prejudicial to him; and that he was not proven guilty beyond a reasonable doubt.

On November 15, 1963, at about 7:20 p. m., Mrs. Mary Seaman, a part-time clerk at a Jewel Food Store, located at 2454 W. 63rd Street, in Chicago, observed two men at the checkout line behind a woman with a large grocery order. She called them over to another register and proceeded to check out a ham, the single item which one of the men had. As she turned from the register to hand the recieipt to the man holding the ham she saw a gun in his hand pointed at her. He told her to put the ham in a bag and put the money from the register on top of the ham. He did not want the change but asked for the money in a safe which could not be opened. She looked at him again and he told her to get the money in the other girl’s register. He then said, “Never mind,” and grabbed the bag and said to the other man, “Let’s get the hell out of here.”

Defendant maintains that the identification by the one witness to the robbery was not positive. The record satisfies us that the identification was positive, sure and decided. Mrs. Seaman had a good opportunity to observe him closely in a well-lighted area for a period of approximately three minutes. She heard his voice at the time of the robbery and again at the showup. She recognized him at the showup, which was conducted properly, and also at the trial. Defendant directs our attention to the red color of his hair. The defendant wore a hat, the brim of which was pulled down, during the robbery thus making it impossible for his hair to be seen. The testimony of a single credible witness is sufficient to convict even if contradicted by the defendant. People v. Solomon, 24 Ill2d 586, 182 NE2d 736 (1962); People v. Prochut, 27 Ill2d 298, 189 NE2d 290 (1963); People v. Miller, 30 Ill2d 110, 195 NE2d 694 (1964).

The question of identification is a matter to be determined by the jury and the jury’s decision should not be upset unless the evidence is unsatisfactory and implausible as to create a reasonable doubt of defendant’s guilt. People v. Brooks, 52 Ill App2d 473, 202 NE 2d 265 (1964); People v. Napper, 78 Ill App2d 451, 223 NE2d 194 (1967).

Defendant further contends that the lineup in which he appeared violated his right to due process of law. A defense witness testified that the defendant was the tallest man in the lineup, as well as the only man with red hair and with a muscular build. Our examination of the record in this case reveals no suggestive elements which could lead to a mistaken identification. Twelve days after the robbery, Mrs. Seaman viewed a lineup of six men. The lighting was similar to that in the store. She was eight feet away from the men in the lineup and immediately identified the defendant. The defendant was not wearing a hat or coat in the lineup. The robber did. Mrs. Seaman asked that a hat be placed on his head because “while I was sure that it was him, but I wanted to make doubly sure with the hat and the way his face was shadowed, then I was positive.” At the time of the trial she made a positive in-court identification of the defendant as the man who robbed the store.

Defendant also contends that the evidence of another crime by him was admitted in the instant case and was thus prejudicial to him. The evidence in the instant case shows that the alleged robber who perpetrated the robbery on November 15, 1963, was armed. He was subsequently arrested 12 days later when he left a car which crashed into a telephone pole. He left the car and started to run, and was apprehended. A search of the ear revealed a revolver on the front seat next to the driver’s side which gun was later identified as the gun held by the robber at Jewel Food Store on November 15, 1963. In order to introduce the gun in evidence, it was necessary for the prosecution to lay a proper foundation. That foundation required that a chain of contact be established between the weapon, the crime and the defendant. Mrs. Seaman established the connection between the weapons and the robbery when she identified the gun as the same size, shape and color as the one the defendant had. The testimony of Officer Soltis and the stipulated testimony of Officer Riley established the chain of contact between the defendant and the gun when it was revealed that the gun was recovered from the car from which the defendant fled at the time of his arrest.

The fact of an arrest is relevant to the prosecution in the instant case. The circumstances surrounding the arrest were within the res gestae and were not improper. In People v. Sessions, 95 Ill App2d 17, 238 NE2d 94 (1968), this court upheld the right of the State to introduce evidence of the circumstances surrounding the arrest even though they may implicate the defendant in other crimes. The court stated:

“Evidence of other offenses committed by the accused generally is inadmissible; however, it is admissible where it is part of the res gestae, where it helps to disclose motive, intent, or design, or where it helps to establish the identity of the accused and places him in proximity to the time and place of the crime. People v. Lewerenz, 24 Ill2d 295, 181 NE2d 99; People v. Tranowski, 20 Ill2d 11, 169 NE2d 347. In a criminal prosecution, the State may offer a continuous narrative of the events that formed the context of the arrest. People v. Alexander, 69 Ill App2d 27, 216 NE2d 180; People v. Johnson, 34 Ill2d 202, 215 NE2d 204. If this narrative includes connected crimes, proof of these crimes is permissible as part of the res gestae. People v. Pargone, 327 Ill 463, 158 NE 716; People v. Murphy, 276 Ill 304,114 NE 609.”

The defendant has mentioned the case of United States v. Wade, 388 US 218 (1967), which was decided after the trial of the instant case. We find this case to be inapplicable because the United States Supreme Court has stated that the rule enunciated in Wade was to have prospective application to situations that would arise after the date of the decision in that case. Stovall v. Denno, 388 US 293 (1967).

The judgment of the Circuit Court of Cook County is hereby affirmed.

Affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Olbrot, Defendant-Appellant.
    Gen. No. 53,054.
    First District, First Division.
    December 19, 1969.
    Rehearing denied January 8, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, 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 (John R. McClory, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

The defendant appeals from two convictions following a jury trial wherein the defendant was found guilty of aggravated battery, for which he was sentenced to serve three to five years, and of attempted murder, for which he was sentenced to fifteen to twenty years, the sentences to run concurrently. The evidence will not be summarized since the defendant has not raised any issue concerning the proof of his convictions. The sole issue raised by the defendant on this appeal is whether the defendant was denied a speedy trial in violation of chapter 38, section 103-5 (a) and (d), Ill Rev Stats (1965).

The record discloses that the defendant was arrested on January 6, 1967, and that on February 2, 1967, five indictments were returned charging the defendant with armed robbery (67-375, 67-376, 67-379), aggravated battery (67-361) and attempted murder (67-378). The case with regard to all of the charges was continued by order of court on February 9, 1967, and February 15, 1967, with an arraignment that was conducted on February 16, 1967. At the conclusion of the arraignment, the case was assigned to another court, where an order was entered continuing the cause to March 1, 1967. The record reveals that from the last mentioned date until May 22, 1967, there were seven more continuances entered by order of court, either for a specific date or that the case be held on call. The defendant made a motion for a continuance on May 22, 1967, which was granted to May 24, 1967. Furthermore, there followed a number of motions initiated by the defendant with regard to his defense counsel being changed and two petitions for a substitution of judges, which motions were allowed. Beginning on June 14,1967, there were several continuances agreed to by the defendant. The record also discloses an order dated June 14, 1967, ordering a free transcript of trial proceedings for the defendant which trial was held during April and May of 1967. On September 15, 1967, the defendant filed a petition for an election asking for a confirmation as to the State’s election to proceed on indictments 67-361 and 67-378, for aggravated battery and attempted murder. No order was entered on this petition for the record. Then, on November 10, 1967, the defendant filed a petition to dismiss the indictments and bar prosecution based on chapter 38, section 103-5, Ill Rev Stats (1965), for failure to bring the defendant to trial within the time specified.

The Statute relied upon by defendant in his motion read in pertinent part as follows:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing,, or by an interlocutory appeal.
“(d) Every person not tried in accordance with subsection (a) . . . of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.”

According to the Committee Comments to this provision, the 120-day rule is to be considered as the method for enforcing the right of a speedy trial as expressed in Article II, section 9, of the Illinois Constitution. The Comments further state that a motion to dismiss under chapter 38, section 114-1, Ill Rev Stats, is the procedure for invoking this right. SHA, c 38, § 103-5, Committee Comments (1964).

In the instant case, the defendant asserted his right under this procedure, but the trial court denied his petition to dismiss on November 13, 1967. After several more continuances, the case was tried on indictments 67-361 and 67-378, which were consolidated for trial beginning on February 5,1968.

Defendant contends that from the record it appears that from the defendant’s arrest on January 6, 1967, to May 22, 1967, a period of more than 120 days, the State failed to provide him with a speedy trial as expressed in section 103-5 of the Code of Criminal Procedure, which has been set out above. The defendant argues that the motion to dismiss should have been granted because the record disclosed that defendant was not admitted to bail; that he was continuously confined for more than 120 days as to the indictments for aggravated battery and attempted murder; that no continuance was made on defendant’s behalf and no delay was attributable to the State’s inability to secure evidence and that the defendant made timely application for discharge.

The State does not contradict any of the factual contentions asserted by the defendant in support of his argument. However, the State does argue that the motion to dismiss was properly denied, since the State contends the defendant had waived his right to a speedy trial or alternatively the State argues that factually the defendant’s right to a speedy trial was not denied because during his custody the defendant was involved in a trial on another indictment. Additionally, the State argues that by virtue of an amendment to section 103-5, on August 11, 1967, the 120-day rule was tolled because of the trial of defendant on another indictment.

With regard to the State’s first argument, it is contended that defendant waived his right to a speedy trial since defendant did not assert his right until his motion to dismiss on November 10, 1967, and that “no right to release existed, for that right had been waived by the affirmative acts of the defendant.” In this regard the State cites People v. Morris, 3 Ill2d 437, 121 NE2d 810 (1954), where the Supreme Court summarized the law regarding a similar statute, at page 442:

“It has been held that the right is not absolute in the sense that mere lapse of time operates to oust the court of jurisdiction and thus make a release of the accused mandatory. . . . Moreover, the right can be waived, and is waived where there is a failure to raise the question prior to conviction, or where the question is so raised but the accused withdraws his motion. . . . The right is also waived where the defendant seeks and obtains a continuance to a period beyond the four-month period within which he would otherwise be required to be tried, . . . and where the failure to try the defendant within the time prescribed is otherwise occasioned by the defendant himself. . . .”

The State also relies on the cases of People v. Rankins, 18 Ill2d 260, 163 NE2d 814 (1960) and People v. Walker, 100 Ill App2d 282, 241 NE2d 594 (1968). We find all of these cases factually distinguishable from the instant case. The record discloses that none of the delay was attributable to the defendant until May 22, 1967. The State erroneously argues that due to the delays caused by defendant after May 22, 1967, no right to release vested in defendant until filing his motion to dismiss on November 10, 1967. This contention is a misinterpretation of the statute and the procedure for invoking this right, in the face of the record which discloses a delay of more than 120 days upon the indictments in question.

In the alternative, the State contends that a speedy trial was not denied defendant who was allegedly on trial “during April and May of 1967” on a different charge which resulted in a hung jury. Thus, the State argues that defendant has failed to show any prejudice that would justify his release by this court, relying upon the case of People v. Tetter, 42 Ill2d 569, 250 NE2d 433 (1969). In Tetter the Supreme Court held that an 18-month delay in bringing a defendant to trial where he had been admitted to bail and subsequently incarcerated by military authorities was not attributable to the fault of the State so as to conclude that the defendant had been denied a speedy trial. Although we find this case factually inapplicable, we are in agreement with the Supreme Court’s statement at page 573 that:

“[T]he four relevant factors for consideration of a claim of denial of the constitutional right to a speedy trial are length of delay, reason for the delay, prejudice to defendant, and his waiver of the right (United States v. Perez (7th cir, 1968), 398 F2d 658, 661). Those factors cannot be considered in isolation, but must be viewed in their totality. . .

The evidence shows that the delay was beyond the statutory requirements of section 103-5, that no reason is given for the delay except the other trial on a different charge (upon which the record is silent as to any severance of the indictments against this defendant, despite his petitions for an election), and evidence that no waiver was made by the defendant for the first 120-day period of his custody. We think the prejudice to the defendant is inherent from the record.

The burden is upon the State to promptly try offenses where a defendant is within the jurisdiction. People v. Gray, 83 Ill App2d 262, 227 NE2d 159 (1967). Furthermore, although the mere lapse of time does not confer an absolute right to discharge, Our courts have protected the right conferred by this statute from technical evasions. People v. Bagato, 27 Ill2d 165, 188 NE2d 716 (1963). We are of the opinion that the case of People v. House, 10 Ill2d 556, 141 NE2d 12 (1957), substantially refutes the contentions made by the State to the appellant’s argument. In the House decision, the court refused to attribute any delay of trial to the defendant, where a number of continuances beyond the statutory period concerned an arraignment and orders of court without indicating any affirmative action by the defendant. Thus, the conviction was reversed and the defendant was ordered to be discharged.

Finally, the State argues that the August 11, 1967 amendment to section 103-5 of the Criminal Code would operate to toll the 120-day period for this defendant. Subsection (e) of that provision deals with an individual held upon more than one charge and provides that if one is tried as to one offense, then an additional 120-day period will commence as to any remaining charge following the complete disposition of the first trial. The State contends that this amendment should be applied retroactively to the defendant in this case. Our research has failed to disclose any expression of legislative intent as to the application of this amendment, especially with regard to retroactivity. The law is that legislation cannot be given retrospective application in order to deprive one of a vested right. Hire v. Hrudicka, 379 Ill 201, 40 NE2d 63 (1942); Fourt v. DeLazzer, 348 Ill App 191, 108 NE2d 599 (1952). We are of the opinion that the statute, as in force on May 22, 1967, gave the defendant a vested right to demand his release from custody due to the passage of more than 120 days from his arrest for the charges involved in this appeal.

For the reasons stated, we agree with the defendant’s contentions and conclude that the judgment of the Circuit Court of Cook County must be reversed.

Judgment reversed.

MURPHY and BURMAN, JJ., concur.