author: MR. JUSTICE MORAN

text:
    (No. 49364.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. TYRONE LOVE, Appellee.

      Opinion filed Jan. 20, 1978.

    Rehearing denied March 30, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Jayne A. Carr, Donald B. Mackay, and Raymond J. McKoski, Assistant Attorneys General, and Laurence J. Bolon, Michael E. Shah at, and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Andrew J. Kleczek, Assistant Public Defender, and Keith Spielfogel, law student, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Tyrone Love, was convicted of the voluntary manslaughter of his wife, Sharon. On appeal, the appellate court reversed the conviction on grounds that the State failed to establish beyond a reasonable doubt that the defendant’s conduct caused the injury which contributed to his wife’s ultimate death. (45 Ill. App. 3d 259.) This court granted the State leave to appeal.

Gloria Fly, an eyewitness to the fight, testified on behalf of the State. She stated that during the late afternoon of December 11, 1972, she visited defendant’s wife at the Love apartment. While Ms. Fly was with Sharon in the kitchen, Sharon asked the defendant for a “spoon of drugs.” Defendant refused and stated that he did not know where drugs could be obtained. At that, Sharon began to berate defendant and to call him names. She threw a glass cup at the defendant; the cup missed him, shattered against the door and cut the defendant. He cursed his wife and slapped her face. A fight ensued. Defendant hit Sharon on the shoulder with his fist, causing her to fall against the dining room doors and onto the floor. He then began to kick her. The witness indicated that the defendant drew his foot back slightly and administered kicks to his wife’s right side in the area of the abdomen approximately two inches above the hip, and to her vaginal area. The witness estimated the defendant kicked his wife for a period of 10 to 15 minutes, during which time his wife cursed him and called out for help. At one point, she tried, unsuccessfully, to crawl away. She also attempted to hit the defendant with a record rack, but defendant took it away from her and hit her with it, cutting her on the side of the head. He grabbed her by the arm and hair and dragged her into the living room. At that point, the witness gathered up Sharon’s two-year-old son and took the child across the courtyard to a relative’s home. Defendant departed from the apartment, leaving his wife on the living room floor.

Approximately 30 to 60 minutes later, Ms. Fly returned to the Love apartment, where she found Sharon sitting in the kitchen, crying and holding her stomach. Sharon began to vomit a thick substance. About an hour later, Ms. Fly, with the assistance of others, took Sharon to Billings Hospital. The attending physician attempted to persuade Sharon to stay at the hospital but she refused. Ms. Fly testified that, upon their return to the apartment, Sharon continued to vomit and cough for approximately 2M> hours before being taken by ambulance to Osteopathic Hospital. As doctors there examined Sharon, she evidenced pain when pressure was applied to her abdomen. She regurgitated pills given her. Sometime subsequent to 3 a.m., Ms. Fly returned with Sharon to the Love apartment, and stayed with her through the early morning hours.

Sharon’s mother, Leslie Edinburg, testified that she visited her daughter on the morning of December 12 and observed her daughter with a gash on the head, bent over, and holding her left side. Later that day, Ms. Edinburg returned and took Sharon to Michael Reese Hospital. While there, Sharon began vomiting a greenish fluid and was doubled up with pain. Doctors operated immediately. Ms. Edinburg stated that, prior to December 11, her daughter was in fine health.

Dr. Harry Richter, a surgeon, testified that he supervised the care of Sharon at the hospital and was present at her operation on December 12. Prior to this operation, his examination of Sharon revealed that she had suffered an injury, suggesting progessive internal bleeding in her abdomen. Surgery revealed the source of the bleeding to be a lacerated spleen which was surgically removed. Dr. Richter observed the spleen upon its removal and described it as looking like “an apple that’s been cracked open.” Dr. Richter did not recall any other signs of internal trauma. He stated that the condition of the spleen was the result of a traumatic injury, but could not identify the character of the injury other than to describe it as being like a “military injury,” i.e., a major abdominal injury caused by an external force and one which was many hours old at the time it was first observed. Sharon remained hospitalized until her death on December 29, 1972. During this period, she had two other operations — a tracheotomy on December 17, to ease her breathing, and an exploratory surgery on December 29. Dr. Richter stated that the cause of Sharon’s death was a combination of pneumonia, edema, lung abscesses, and post-operative complications. He considered pneumonia to be a common result following a splenectomy. He stated that the onset of the factors causing Sharon’s death occurred prior to the first operation, but that, in his opinion, the original trauma had triggered the sequence of events which led to Sharon’s death.

On cross-examination, Dr. Richter described the location of the spleen as being in the upper left quadrant of the abdominal cavity and noted that the spleen can be torn by broken ribs. Defense counsel inquired whether Sharon had any broken ribs, to which Dr. Richter responded that he did not personally know but understood that the X-ray report indicated that there were some broken ribs. On redirect examination by the State, Dr. Richter again indicated that he had no personal knowledge of broken ribs. When further questioned, he stated that he was told the X rays indicated three broken ribs. Defense counsel objected on grounds that the doctor’s remarks were hearsay. The court overruled counsel’s objection and held that the doctor could state what the X rays showed if, in fact, he relied on them in making his diagnosis. The X rays were not introduced into evidence, and no testimony was elicited by the State to indicate whether the doctor relied on that information in making his diagnosis.

Dr. Alexander O. Custodio, a pathologist employed by the coroner of Cook County, testified that he had performed an autopsy upon the decedent on December SO, 1972. In the course of his internal examination, he found extensive bilateral pneumonia and mild peritonitis. Aside from the surgical removal of the spleen, Dr. Custodio did not notice any other signs of trauma. Pathologically, Dr. Custodio stated, surgery and pneumonia are separate entities, but, clinically speaking, they can be related in that surgery predisposes the patient to pneumonia. Dr. Custodio could not with any degree of certainty pinpoint when the decedent contracted pneumonia other than to state that she had had it a few days before her death. Dr. Custodio agreed that the decedent’s death was caused by extensive bilateral pneumonia and mild peritonitis due to the exploratory laparotomy and splenectomy.

At trial, defendant testified that he and his brother, Ronald, left the Love apartment at 4:30 p.m. on December 11 to go to the movies. They returned to the apartment between 10 and 10:30 p.m., at which time Sharon requested that defendant obtain drugs for her. When he refused, Sharon threw an object at him. Defendant stated that he slapped her twice and left the apartment to spend the night at Ronald’s. He denied that he kicked her. Defendant’s brother testified, corroborating defendant’s testimony as to the events of December 11. He, too, denied defendant kicked Sharon.

In reversing defendant’s conviction, the appellate court held that inasmuch as there was no evidence to indicate that decedent was kicked or externally injured in the area of the spleen, the trier of fact was, as a matter of law, incapable of determining, without the assistance of medical testimony, whether the defendant’s conduct caused the spleen to rupture.

The State contends that the appellate court erred in reversing defendant’s conviction; that no additional medical testimony was required inasmuch as the evidence introduced at trial was more than sufficient to prove beyond a reasonable doubt that defendant’s conduct caused the decedent’s spleen to rupture. The State concludes that the appellate court substituted its judgment for that of the trier of fact.

By cross-argument, the defendant contends that the State failed to prove beyond a reasonable doubt the causal relationship between the defendant’s conduct and the pneumonia which ultimately led to Sharon’s death. Defendant also asserts that the trial court erred in considering Dr. Richter’s testimony concerning broken ribs. Due to the appellate court’s view of the case, it did not reach the defendant’s latter contention.

We find that the appellate court erred in reversing the defendant’s conviction. The evidence at trial clearly established that decedent was severely beaten. The eyewitness testified that the defendant repeatedly administered kicks to the abdominal and vaginal regions for approximately 10 to 15 minutes. Although the witness indicated to the court that the kicks were administered to the right side of the abdomen, approximately two inches above the victim’s hip, there was also testimony that the decedent demonstrated pain throughout her abdominal region. From Ms. Fly’s description of the fight, it can be reasonably inferred that the defendant acted with a substantial amount of force, evidenced by his repeated kicking, his causing the decedent to fall against the dining room doors, his striking her over the head with the record rack, and his dragging her from one room to another by her hair and arm. Following the fight and until decedent’s final admission to the hospital, she demonstrated abdominal pains and discomfort, vomiting and coughing. Decedent’s mother testified that, prior to December 11, 1972, her daughter was in fine health. Dr. Richter testified that when he examined Sharon upon her arrival at Michael Reese Hospital, he found evidence suggesting progessive internal bleeding, that her stomach was exquisitely tender to palpation, and that the ordinary, normal sounds of the abdomen were absent. Surgery revealed a lacerated, bleeding spleen. Dr. Richter indicated that the condition of the decedent’s spleen was the result of a traumatic injury caused by an external force of some kind.

Defendant’s contention that further medical testimony was required to establish causation between the defendant’s act and the decedent’s injury is unpersuasive. The medical evidence, as related above, clearly established the decedent’s injury to be the result of an external force applied to the abdominal region. Apart from the defendant’s conduct, there is no evidence of any other external force to the decedent’s abdomen.

In cases where the evidence suggests one or more acts which might have caused the injury, some of which are disconnected from any act of the defendant, medical testimony may be necessary to assist the trier of fact in determining whether the defendant’s act or course of conduct constituted a contributing factor. But when, as here, the evidence reasonably and sufficiently connects the defendant’s acts to the victim’s subsequent state of ill-being, and where there is no evidence suggesting an act or cause of injury apart from the defendant’s conduct, further medical testimony is not required to establish that the defendant’s acts were sufficient to cause the injury.

In People v. Ransom (1975), 33 Ill. App. 3d 503, a case factually analogous to that presented here, evidence at trial indicated that defendant twice struck the victim on the side of the head with aboard. The victim walked away from the scene under his own power, but died several days later. The physician who performed the autopsy testified that the victim had a half-inch laceration in the back of the head and a three-inch laceration above the left eyebrow, both of which had been sutured. There were no signs of skull fracture, but he found a moderate subarachnoid hemorrhage and pneumonia in the right lung. The physiclan stated that the primary cause of death was traumatic subarachnoid hemorrhage and that the secondary cause of death was pneumonia. There, as here, no testimony was elicited from the physician as to whether the defendant’s acts were sufficient to cause the injury observed. Though the appellate court did not address the issue presented here, it did hold that there was sufficient evidence from which it could be inferred that the defendant landed blows on the deceased’s head and face and that the victim’s death was caused by the beating administered to him by the defendant. (33 Ill. App. 3d 503, 505-06.) On appeal, this court agreed with that portion of the appellate court’s opinion, holding there was sufficient evidence of causation, but reversed on other grounds. (People v. Ransom (1976), 65 Ill. 2d 339, 341.) In Ransom, as here, the only reasonable inference that could be drawn from the evidence is that the defendant’s conduct constituted the external force which caused the injury received by the victim.

Defendant relies on People v. Benson (1960), 19 Ill. 2d 50, as authority for the proposition that additional medical testimony was necessary to prove causation. Benson, however, is distinguishable from the facts presented here. In Benson, the court held that there was insufficient evidence connecting defendant’s sexual attack to the injury sustained to the victim’s head and brain. The court noted that there was no convincing proof that the condition of the victim’s head or brain was caused by force or trauma or that the defendant committed any bodily assault about the head. In essence, the court held that there was absolutely no evidence to connect the defendant’s conduct with the injury which caused the victim’s death. Here, unlike Benson, there was direct testimony that defendant administered a series of kicks to the deceased’s abdomen and that the deceased thereafter experienced vomiting and indicated pain throughout the abdominal region, culminating in the removal of a ruptured spleen. Considering the physician’s testimony regarding the nature and cause of the injury and the lack of any evidence of record suggesting other possible traumatic external forces applied to the deceased’s abdominal region, we do not believe the trier of fact was left to conjecture and speculation in determining whether defendant’s acts caused the deceased’s injury.

Defendant, in his brie)?, argues that the record suggests two alternative explanations for the ruptured spleen. He hypothesizes that decedent suffered from drug addiction and that this addiction resulted in an embolization of the spleen which caused it to rupture. He further hypothesizes that the deceased could have caused the injury to herself. As to the first of these contentions, there is no evidence that decedent was a drug addict, and, further, medical testimony indicated that the injury was caused by an external force, not by an internal disorder. With respect to defendant’s second theory, there is no suggestion in the record to indicate that decedent caused the injury herself. On the contrary, evidence indicates that decedent was in the same state of ill-being from the time of the beating until the time of her admission to Michael Reese Hospital.

By way of cross-argument, defendant posits that the evidence was insufficient to establish the causal relationship between the splenectomy and the deceased’s ultimate death caused mainly by pneumonia. With respect to this argument, the appellate court held, “[T]he record as a whole supports causation between [deceased’s] pneumonia and the surgical removal of her spleen.” (45 Ill. App. 3d 259, 262.) We concur in this conclusion. The record clearly establishes that the splenectomy predisposed the decedent to pneumonia. Although Dr. Richter stated that the combination of factors which resulted in Sharon’s death existed prior to her first operation, he opined that the original trauma triggered the sequence of events which ultimately led to her death. Dr. Custodio, too, related that the surgery would predispose the body to pneumonia, and he agreed that the cause of death was extensive bilateral pneumonia and mild peritonitis due to the exploratory laparotomy and the splenectomy. Defendant is liable for the decedent’s death even though his acts are not the sole and immediate cause. (People v. Reader (1962), 26 Ill. 2d 210, 213; People v. Meyers (1945), 392 Ill. 355, 359-61.) Accordingly, we find that the State sufficiently proved that the defendant’s conduct contributed to his wife’s subsequent death.

Finally, defendant contends that the trial court committed reversible error when, without a proper foundation having been laid, it permitted Dr. Richter to state that he was told certain X rays showed the decedent suffered several broken ribs. Even assuming that the trial court erred in admitting this testimony, we find it was harmless error. In finding the defendant guilty, the trial court cited the broken ribs as but one of a number of cumulative facts which indicated the seriousness of the beating administered to the decedent. As noted above, there was ample evidence, other than that of which defendant complains, to support the finding. We find, therefore, that the trial court’s consideration of this testimony was not reversible error. People v. Murdock (1971), 48 Ill. 2d 362, 366-67.

Accordingly, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

author: MR. JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 49487.
    CHICAGO SHERATON CORPORATION et al., Appellants, v. SEYMOUR ZABAN et al., Appellees.

      Opinion filed Jan. 20, 1978.

    Rehearing denied March 30, 1978.

      Gerald Rose, of Chicago (James B. Muskal and John E. Rosenquist, of Leydig, Voit, Osann, Mayer & Holt, Ltd., of Chicago, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr., Deputy State’s Attorney, and Michael F. Baccash, Assistant State’s Attorney, of counsel), for appellees.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Chicago Sheraton Corporation, appealed from the judgment of the circuit court of Cook County entered in favor of defendants, Seymour Zaban and Harry H. Semrow, sued individually and as members of the Cook County board of appeals, and Thomas M. Tully, Stanley T. Kusper, Jr., and Edward J. Rosewell, respectively assessor, county clerk and treasurer of Cook County, upon allowance of their motion to dismiss plaintiff’s action seeking an injunction and other relief. We allowed plaintiff’s motion filed pursuant to Rule 302(b) (58 Ill. 2d R. 302(b)) and ordered that the appeal be taken directly to this court.

In plaintiff’s complaint containing five counts, it is alleged in counts I through IV that plaintiff is the owner of real estate located at 505 North Michigan Avenue in Chicago improved with a hotel building, that the property is located in the north quadrant of Cook County and for real estate tax purposes is comprised of four parcels of improved real estate; that the tax year 1972 was the first year of the quadrennium for the north quadrant of Cook County; that the assessor gave notice of a proposed increase in assessed valuation from $6,095,952, its assessed value during the 1968 quadrennium, to $8,315,456; that “Plaintiff complained to the Assessor and presented evidence sufficient to obtain from the Assessor a reduction in the proposed assessment of the hotel for the 1972 quadrennium to $6,090,152”; that the assessor’s property record cards were formally revised to reflect the assessment reduction; that errors in transcribing data from the property record cards for entry into the assessment books or errors of calculation resulted in an assessed valuation for 1972 of $8,750,335; that the assessor’s property record cards acknowledged that such errors were made; that the board of appeals certified the erroneous 1972 assessments and the treasurer extended them and sent out 1972 tax bills based on those erroneous assessments; that upon receipt of the 1972 real property tax bills plaintiff complained to the assessor, that the assessor acknowledged the mistakes in the assessment of the property “causing to be marked on each of the bills *** a Certificate of Error [citation] to reduce the assessments to those which he had previously determined to be correct”; that plaintiff paid the real property taxes for the year 1972 on the basis of the tax bills as corrected and relying on the said certificates of error did not pay the erroneous taxes based on the erroneous assessments; that for each succeeeding year of the 1972 quadrennium, the real property taxes assessed and levied against the property were based on the assessor’s revised assessments for the quadrennium; that the defendant members of the board of appeals delayed issuing statutory notice and delayed holding a hearing with respect to whether the board of appeals would endorse the certificates of error until 1976, long after the collector’s 1972 annual application for judgment and order of sale; that plaintiff appeared at the hearing and presented evidence of the aforesaid mistakes, but the defendant members of the board of appeals refused to endorse the certificates of error with their concurrence. It was further alleged that the board’s refusal to endorse the certificates of error was arbitrary and capricious, and resulted in an assessment increase without notice and in a constructively fraudulent assessment and tax and that plaintiff had exhausted all administrative remedies and had no adequate remedy at law. The allegations of count V will be considered later in this opinion. Defendants moved to dismiss the complaint on the grounds that plaintiff had not exhausted its administrative remedies and that it had an adequate remedy at law. Upon allowance of the motion, the circuit court dismissed plaintiff’s action with prejudice and this appeal followed.

It appears from the pleadings that the notice of assessments for the 1972 quadrennium was published in a newspaper of general circulation within the assessment district and that thereafter the board of appeals gave notice by publication (Ill. Rev. Stat. 1971, ch. 120, par. 596) that from January 29, 1973, until February 13, 1973, it would receive complaints concerning assessments for the tax year 1972. Plaintiff admittedly did not file a complaint (ch. 120, pars. 597, 598) with the board of appeals challenging the assessment.

Plaintiff contends that the assessments were grossly excessive and constructively fraudulent; that where assessments are constructively fraudulent and there is no adequate remedy at law, the diligent taxpayer may seek equitable relief; that by reason of its delay in holding a hearing the board of appeals is estopped from refusing to endorse the certificates of error; that the hearing held before the board of appeals did not meet the requirements of the due process clause and that its decision not to endorse the certificates of error is reviewable on the ground that such refusal was constructively fraudulent. It is defendants’ position that the statute does not provide for participation by the taxpayer in the procedure for certificate of error and that it involves only the tax assessment officials and the court; that plaintiff had an adequate remedy at law, of which it failed to avail itself; that it should have complained of the assessment to the board of appeals, and failing to obtain relief, should have objected at the collector’s application for judgment.

The statutory provisions relevant to this controversy are sections 123, 117, 118 and 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1971, ch. 120, pars. 604, 598, 599, 675). Section 123 provided:

“In counties containing 1,000,000 or more inhabitants, if, at any time before judgment is rendered in any proceeding to collect or to enjoin the collection of taxes based upon any assessment of any property belonging to any person or corporation, the county assessor shall discover an error or mistake in such assessment, such assessor shall execute a certificate setting forth the nature of such error, and the cause or causes which operated to produce it. The certificate when endorsed by the board of appeals showing its concurrence therein, and not otherwise, may be received in evidence in any court of competent jurisdiction, and when so introduced in evidence such certificate shall become a part of the court records, and shall not be removed from the files except upon the order of the court.
A certificate executed pursuant to this Section may be issued to the person erroneously assessed or may be presented by the assessor to the court as an objection in the application for judgment and order of sale for the year in relation to which the certificate is made.” Ill. Rev. Stat. 1971, ch. 120, par. 604.

Sections 117 and 118 provided that any taxpayer believing his property “is over assessed or under assessed or is exempt” may also file a written complaint with the board of appeals which, after a hearing, may order the assessment corrected. (Ch. 120, pars. 598, 599.) Under the provisions of section 194, if the taxpayer is not satisfied with the order of the hoard of appeals, he may pay the tax under protest (ch. 120, par. 675) and object to the collector’s application for judgment and order of sale, thus obtaining judicial review of the assessment and tax. An examination of the statutory scheme shows that the certificate of error procedure provided in section 123 is intended to be separate and distinct from the procedure available to a taxpayer under sections 117, 118 and 194.

Prior to the amendment effected by the enactment of Public Act 77—1466 (approved September 7, 1971), section 123 (Ill. Rev. Stat. 1969, ch. 120, par. 604) provided that if at any time before judgment was rendered in any proceeding to collect or enjoin the collection of taxes the board of appeals discovered “an error or mistake (other than errors of judgment as to the valuation of any real or personal property),” it could issue a certificate of error. If the county assessor endorsed his concurrence in the certificate of error, it could be received in evidence in any court of competent jurisdiction. Unlike section 122 (ch. 120, par. 603), which expressly provided for notice to the taxpayer and a hearing, section 123 either before or after amendment made no provision for participation by the taxpayer in the certificate of error process or for a hearing before either the assessor or the board of appeals.

Plaintiff contends that notice and hearing are implicit in the proceeding and to interpret the statute to require neither notice nor hearing would render it violative of the due process clause. It argues, too, that the General Assembly clearly intended that the assessor and board of appeals execute the certificate in time for it to be presented as an objection in the collector’s application for judgment and order of sale and that a delay of three years in setting the hearing violated the statute. We do not agree. We are of the opinion that the General Assembly intended the certificate of error procedure to be an expeditious summary process, without participation by the taxpayer, for correcting the assessor’s errors. The requirements of due process are “that the property owner be given notice and an opportunity to be heard upon the valuation of his property at some point in the taxing process before his liability to pay the tax becomes conclusively established” and that “the taxpayer is not entitled to notice and an opportunity to be heard at each stage, or at any particular stage, of the assessment procedure.” (Dietman v. Hunter, 5 Ill. 2d 486, 489. See also Little Sister Coal Corp. v. Dawson, 45 Ill. 2d 342.) Plaintiff does not dispute that the assessor published notice of the quadrennial assessment as provided in section 104 (ch. 120, par. 585) and that the board of appeals gave notice of its meetings as required by section 115 (ch. 120, par. 596). We hold that section 123 did not require the board of appeals to hold a hearing concerning the certificate of error and plaintiff had neither a statutory nor constitutional right to participate in the certificate of error proceeding or to challenge any alleged irregularities in that proceeding.

We consider next plaintiff’s contention that the decision of the board of appeals is reviewable “where it is charged that there was actual or constructive fraud.” The judgment of the circuit court having been entered upon allowance of defendants’ motion to dismiss, the allegation that the quadrennial assessment was constructively fraudulent must be taken as true (Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill. 2d 93), and defendants concede that at this stage of the case “there is no dispute as to the quadrennial assessment being constructively fraudulent.” They contend, however, that under Clarendon Associates v. Korzen, 56 Ill. 2d 101, equitable relief must be denied. Clarendon presented squarely the question whether equity will enjoin the collection of taxes based on constructively fraudulent assessments. After citing early cases allowing the equitable remedy, discussing the enactment and purpose of the 1933 amendments to the Revenue Act of 1872 which required the payment of at least 75% of the tax under protest as a condition precedent to the filing of an objection to the application for judgment, and recognizing that dictum in cases decided subsequent to the 1933 amendments indicated that equity might grant relief from a constructively fraudulent assessment, the court held that equity will not enjoin the collection of taxes based on a constructively fraudulent assessment unless the assessment is so fraudulently excessive as to render the remedy at law unavailable to the plaintiff. (See also La Salle National Bank v. County of Cook, 57 Ill. 2d 318.) We find no basis in this record to hold this exception applicable.

We consider now plaintiff’s contention that defendants are estopped from refusing to endorse the certificates of error. Plaintiff argues that because it relied upon the 1972 certificate of error it did not pay the erroneously assessed taxes and therefore could not object to the collector’s 1972 annual application for judgment and order of sale. It argues that because the collector “computed the tax bills based on the Certificates of Error, accepted the correct payment and receipted the bills” it “did not perfect alternative remedies.” Exhibits attached to the pleadings show that the time for filing a complaint before the board of appeals was from January 29, 1973, until February 13, 1973. Plaintiff did not file a complaint with the board of appeals within that period. The exhibits also show that the assessor did not enter the certificates of error until May 3, 1973, approximately three months after the last date on which a complaint could have been filed before the board. Under these circumstances we fail to perceive in what manner plaintiff was prejudiced. Clearly, plaintiff’s situation would not have been any different had the board refused to endorse the certificates of error on the day they were entered by the assessor. Having failed to timely file a complaint before the board, plaintiff was precluded from pursuing the statutory remedy of objection in the collector’s application for judgment proceeding. (People ex rel. Korzen v. Fulton Market Cold Storage Co., 62 Ill. 2d 443.) We find no basis for holding that the board of appeals is estopped from refusing to endorse the certificates.

We consider now the allegations of count V of plaintiff’s complaint. In this count plaintiff seeks . “recovery in favor of the People of the State of Illinois for the use of Chicago Sheraton Corporation” against the defendant members of the board of appeals, jointly and severally. The action is based upon section 323 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 804), which in pertinent part provides that “Every county clerk, assessor, collector or other officer who shall in any case refuse or knowingly neglect to perform any duty enjoined upon him by this Act *** shall *** be liable, on the complaint of any person, for double the amount of the loss or damage caused thereby ***.” It was alleged that the assessor “has a statutory duty- to equitably and uniformly assess all taxable property” and “to propose Certificates of Error in the event of overassessments”; that the members of the board of appeals have a statutory duty “of ordering correction of overassessments”; that the members of the board “by their refusal to endorse their concurrence to the Assessor’s proposed Certificates of Error” for the hotel “knowingly neglected or refused to perform their statutory duty of ordering correction of overassessments ”; and that “By reason of such neglect or refusal, Plaintiff Chicago Sheraton Corporation has incurred losses or damages, including attorneys’ fees for bringing on and prosecuting the within action.”

To recover on this count, plaintiff would be required to prove an “overassessment” and the board’s refusal or “knowing neglect” to correct the “overassessment.” Under the relevant statutes plaintiff had the right to file a complaint with the board of appeals and challenge the “erroneous” assessment, and if the board failed to correct the “overassessment,” file an objection based on the “overassessment” at the collector’s application for judgment and obtain a judicial determination of the correctness of the assessment. Having failed to pursue this remedy, plaintiff obviously cannot recover double damages based on the board’s alleged refusal or “knowing neglect” to correct the “overassessment.” If plaintiff’s theory of liability were adopted, a taxpayer could elect not to follow the statutory procedure a!nd instead attempt to prove an “overassessment” in an action of this type with the possibility of recovering “double” the amount of the saving which could have been effected by proving “over-assessment” before the assessor, the board of appeals or in the collector’s application for judgment proceeding.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: MR. JUSTICE DOOLEY MR. JUSTICE MORAN,

text:
    (No. 49331.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HENRY LEE SMITH, Appellant.

      Opinion filed Jan. 27, 1978.

    Opinion modified March 31, 1978.

      MORAN and GOLDENHERSH, JJ., dissenting.
    Robert Agqstinelli, Deputy Defender, and Mary Robinson, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    William J. Scott, Attorney General, of Springfield (Donald B. Mackay, Melbourne A. Noel, and Timothy B. Newitt, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE DOOLEY

delivered the opinion of the court:

Defendant, Henry Lee Smith, was found guilty by a jury in the circuit court of Peoria County of the offense of unlawful use of weapons in violation of section 24—1(a)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(10)).

Defendant was sentenced to a term of imprisonment of not less than three nor more than nine years. On appeal, the appellate court affirmed the judgment. (45 Ill. App. 3d 66.) We granted leave to appeal pursuant to Rule 315 (58 Ill. 2d R. 315) of this court.

The issues are: (1) Was the revolver, located in a locked glove compartment of defendant’s vehicle, “not immediately accessible” to defendant within the meaning of the statutory exemption to the crime of unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24—2(b)(4))? and (2) Was the jury erroneously instructed?

On November 8, 1973, police officer Short of the Peoria Police Department was alerted by radio to look out for a vehicle with Illinois license plate No. UE 9281. He located the vehicle, parked and unoccupied. He was joined by Lieutenant Dyke to await its owner. Defendant was arrested when he was about to enter the vehicle, which he admittedly owned. Neither Officer Short nor Lieutenant Dyke saw the defendant in the vehicle or observed the weapon. At the station, after defendant had been advised of his rights, he signed a consent form permitting the police to search the automobile. According to Officer Poynter, the interviewing officer at the station, defendant had admitted that there was a gun in the glove compartment of the car and that he owned this weapon, which had been there for four days.

Defendant, according to the police, stated that he did not have the key to the glove compartment. Accordingly, the police employed screwdrivers to open the compartment. A fully loaded .22-caliber revolver was removed. This was received in evidence.

The State conceded that a person with a key could not have opened the glove compartment while driving the car. No identifiable fingerprints were found on the pistol.

Proof was made of defendant’s prior felony conviction and his release from the penitentiary within the past five years. Absent such evidence the crime would have been a misdemeanor, not a felony. Ill. Rev. Stat. 1973, ch. 38, par. 24—1(b).

Defendant testified on his own behalf. He admitted ownership of the automobile but denied ownership of the gun. He stated that he had not had a key to the glove compartment for a 10-month period prior to his arrest. He specifically denied statements to the contrary allegedly made to the police.

The crime for which defendant was tried does not apply where the weapon is not immediately accessible. The trial court found sufficient evidence had been received to raise the issue of nonaccessibility of the weapon.

The threshold question is whether the evidence was such as to justify a conviction under the statute (Ill. Rev. Stat. 1973, ch. 38, par. 24—1(a)(10)). In the present case defendant was convicted under section 24—1(a)(10) (Ill. Rev. Stat. 1973, ch. 38, par. 24— 1(a)(10)):

“Unlawful Use of Weapons, (a) A person commits the offense of unlawful use of weapons when he knowingly:
* * *
(10) Garries or possesses in a vehicle *** within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.”
This statute further provides in section 24 — 2 a list of “exemptions” of which the following is at issue here.
“(b) Subsections 24—1(a)(4) and 24—1(a) (10) do not apply to or affect any of the following:
* * *
(4) Transportation of weapons *** not immediately accessible.” (Ill. Rev. Stat. 1973, ch. 38, par. 24—2(b)(4).)

Section 24 — 2(g) provides the following about the burden of proof in relation to this list of exemptions:

“(g) An information or indictment based upon a violation of any Subsection of this Article need not negative any exemptions contained in this Article. The defendant shall have the burden of proving such an exemption.” Ill. Rev. Stat. 1973, ch. 38, par. 24—2(g).

So long as the weapon in question is in such proximity to the accused as to lie within easy reach so that the weapon is readily available for use, it is “immediately accessible.” In People v. McKnight (1968), 39 Ill. 2d 577, a pistol was found six inches under the front seat of an automobile between defendant and the center hump. Since a normal understanding of the language controlled, the weapon was considered “immediately accessible.” The defendant had only to bend down and reach under the seat to obtain its use.

People v. Strompolis (1971), 2 Ill. App. 3d 289, where a sawed-off shotgun was hidden in a case inside a panel on the driver’s door of the vehicle, as well as People v. Tilden (1974), 26 Ill. App. 3d 447, and People v. Cannon (1974), 18 Ill. App. 3d 781, where the weapon was found under the driver’s seat, determined that there was immediate accessibility to the weapon.

This crime can,- of course, be established by circumstantial evidence. (People v. McKnight (1968), 39 Ill. 2d 577, 581.) Under the facts here, the question of defendant’s violation of this law was for the jury. There was ample evidence to support the conviction.

The more difficult problem involves the propriety of the court’s instructions to the jury. Inherent in this problem is the question of burden of proof — an important factor in any litigation, but having particular significance in a criminal case where the delicate scales of justice may be poised between guilt or innocence. At the request of the People, Illinois Pattern Jury Instruction Criminal No. 18.03 (1968), as modified by section 24—1(a)(10) and section 24—1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 24—1(a)(10), 24—1(b)), was given:

“To sustain the charge of Unlawful Use of Weapons, the State must prove the following propositions:
First: That the defendant knowingly possessed in a motor vehicle within the corporate limits of a city a loaded revolver;
Second: That when he did so the defendant was not on his own land or fixed place of abode.
Third: That when he did so the defendant had been released from the penitentiary less than five years.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.” ,

It is to be noted that no reference is made to the issue of nonaccessibility or the burden of proof on this question. Defendant made no objection to that instruction.

At defendant’s request the jury was instructed:

“The crime of unlawful use of weapons as charged here, does not apply to or affect the situation where such weapon is not immediately accessible.
The defendant has the burden of proving by a preponderance of the evidence that at the time of the crime charged he did not have immediate access to such weapon.” IPI Criminal No. 18.02, as modified by section 24—2(b)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 24-2(b)(4)).

Defendant alleges error in this instruction given at his request in that it shifts the burden of proof on the issue of accessibility to the defendant. It should be noted that this is not a situation where the State’s burden of proving its case in chief beyond a reasonable doubt is shifted to the defendant — a matter which can present an issue of consequence, as Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, and In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, make manifest.

We recognize that it is the obligation of defendant to object to a particular instruction. (See People v. Anderson (1971), 48 Ill. 2d 488, 498; People v. Calcaterra (1965), 33 Ill. 2d 541, 547.) So also, it is his duty to tender a proper instruction on a particular issue at trial. (People v. Walls (1965), 33 Ill. 2d 394, 398; People v. Damen (1963), 28 Ill. 2d 464, 469; People v. Gratton (1963), 28 Ill. 2d 450, 456; People v. Carvin (1960), 20 Ill. 2d 32, 35-36.) Failing to either object or tender a particular instruction will preclude him from raising objections on appeal to given instructions or lack of instruction. See People v. Cesarz (1969), 44 Ill. 2d 180, 189; People v. Anderson (1971), 48 Ill. 2d 488, 498; People v. Calcaterra (1965), 33 Ill. 2d 541, 547; 58 Ill. 2d R. 451(c).

Defendant relies on our Rule 615(a) to the effect that “[pjlain errors or defects affecting substantial rights may be. noticed although they were not brought to the attention of the trial court” (58 Ill. 2d R. 615(a)). Probably more relevant is our Rule 451(c) that “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require” (58 Ill. 2d R. 451(c)).

But neither rule would normally cover the situation where the instruction of which defendant complains on review is one which he himself tendered in the trial court. People v. Riley (1964), 31 Ill. 2d 490, 496; People v. Beil (1926), 322 Ill. 434, 442; People v. Fox (1925), 319 Ill. 606, 619.

In this posture of the record there is grave doubt as to whether the issue is before us. We, however, believe that in light of the serious constitutional challenge to the ins truetions, it will further the administration of justice to determine whether “immediate accessibility” is an issue upon which the People or the defendant has the burden of proof. See People v. Jenkins (1977), 69 Ill. 2d 61.

It cannot be stressed too much that under this statute each element of the crime itself must be proved by the State beyond a reasonable doubt, and that this obligation of the State remains throughout the proceedings. See Leland v. Oregon (1952), 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002; In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881; Rivera v. Delaware (1976), 429 U.S. 877, 50 L. Ed. 2d 160, 97 S. Ct. 226; Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319.

The legislature has added to the unlawful use of weapons statute a long litany of exemptions. Ten separately enumerated exempt categories apply to those charged with violation of section 24—1(a)(10). (Ill. Rev. Stat. 1973, ch. 38, pars. 24—2(a), 24—2(b).) For the State to be saddled with negating each defendant’s place in each of the 10 exempt categories would place impossible burdens upon effective prosecution of this type of case. The legislature has avoided this problem by requiring the prosecution to prove each and every element of the offense beyond a reasonable doubt and by requiring the defendant to prove his entitlement to the exemption.

That such exemptions are distinct from affirmative defenses under our statutory scheme and never become an issue for the State to prove is shown by the provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 1—1 et seq.). The Code defines an affirmative defense and provides that, once the issue is raised, the burden is on the State to prove that issue, together with all other elements of the offense, beyond a reasonable doubt. (Ill. Rev. Stat. 1973, ch. 38, par. 3-2.) To the contrary, the

State need never negate any exemption. (Ill. Rev. Stat. 1973, ch. 38, par. 24—2(g).) Substantially similar treatment of exemptions is found in the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56½, par. 716) and the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 5614, par. 1506).

Whenever the legislature intends a provision to constitute an affirmative defense to a crime it has labeled it as such. Illustrative are the affirmative defenses to such crimes as indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11—4(b)), bigamy (Ill. Rev. Stat. 1975, ch. 38, par. 11—12(b)), disseminating obscene material (Ill. Rev. Stat. 1975, ch. 38, par. 11—20(f)), disseminating harmful material to a child (Ill. Rev. Stat. 1975, ch. 38, par. 11—21(e)), unlawful use of recorded sounds (Ill. Rev. Stat. 1975, ch. 38, par. 16—7(i)), unlawful restraint (Ill. Rev. Stat. 1975, ch. 38, par. 16A—6), and criminal defamation (Ill. Rev. Stat. 1975, ch. 38, par. 27—2).

Had the legislature intended to treat these exemptions as affirmative defenses, it would have labeled them as such.

We turn now to the crucial question before us. Is it within the constitutional power of the legislature to place the burden of proving these exemptions on the defendant?

Dealing with crime, including the procedures under which State laws are administered, is preeminently the business of the State and is not subject to the due process clause unless “ ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” Patterson v. New York (1977), 432 U.S. 197, 202, 53 L. Ed. 2d 281, 287, 97 S. Ct. 2319, 2322.

State courts have been called the “ultimate expositors of state law.” (Mullaney v. Wilbur (1975), 421 U.S. 684, 691, 44 L. Ed. 2d 508, 515, 95 S. Ct. 1881, 1886.) As we understand the teachings of the United States Supreme Court, as expressed in Leland v. Oregon (1952), 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002, In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068, Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, Rivera v. Delaware (1976), 429 U.S. 877, 50 L. Ed. 2d 160, 97 S. Ct. 226, and Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, so long as the State is required to exact proof beyond a reasonable doubt of each fact necessary to the crime charged, there is no violation of the due process clause. The statute under consideration meets this test. It is only the exemption of nonimmediate accessibility upon which the defendant has the burden of proof by a preponderance of the evidence.

In Leland v. Oregon (1952), 343 U.S. 790, 96 L. Ed. 1302, 72 S. Ct. 1002, Oregon’s statutory provision which obligated a criminal defendant to prove beyond a reasonable doubt his insanity at the time of the commission of the crime of murder was held constitutional. The burden of proving all elements of the crime beyond a reasonable doubt was on the State and remained there throughout the trial. Although 20 States at that time required the accused to prove his insanity, Oregon was the only one requiring the defendant to prove his insanity beyond a reasonable doubt. The due process clause was not offended.

In Mullaney v. Wilbur (1975), 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, a Maine law requiring the defendant to establish by a preponderance of the evidence that he acted in the heat of passion on provocation to reduce a murder charge to manslaughter was contrary to the due process clause. Such proof had to negate an indispensable element of the crime charged. Due process requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.

In Rivera v. Delaware (1976), 429 U.S. 877, 50 L. Ed. 2d 160, 97 S. Ct. 226, the Delaware statute imposed upon the defendant the obligation of proving the affirmative defense of insanity by a preponderance of the evidence. The appeal was dismissed as not presenting a substantial Federal question.

Patterson v. New York (1977), 432 U.S. 197, 53 L. Ed. 2d 281, 97 S. Ct. 2319, dissipates any arguments concerning the constitutionality of imposing upon the defendant the burden of proving by a preponderance of the evidence such a defense as we are considering. There the defendant was charged with second-degree murder, which in New York has two elements: (1) intent to cause the death of a certain person; and (2) causing the death of such person.

New York law permits an affirmative defense of “act[ing] under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” (Patterson v. New York (1977), 432 U.S. 197, 198, 53 L. Ed. 2d 281, 285, 97 S. Ct. 2319, 2321.) The jury was instructed that the defendant had the burden of proving the affirmative defense by a preponderance of the evidence.

This is not only the latest pronouncement of the United States Supreme Court, but it presents the identical issue before us. Patterson discusses at length Leland, Winship, Mullaney and Rivera. It concludes that the New York murder statute did no more than Leland and Rivera “permitted it to do without violating the Due Process Clause. Under those cases, once the facts constituting a crime are established beyond a reasonable doubt, based on all the evidence including the evidence of the defendant’s mental state, the State may refuse to sustain the affirmative defense of insanity unless demonstrated by a preponderance of the evidence.” 432 U.S. 197, 206, 53 L. Ed. 2d 281, 289-90, 97 S. Ct. 2319, 2325.

It continued:

“The New York law on extreme emotional disturbance follows this pattern. This affirmative defense, which the Court of Appeals described as permitting ‘the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them,’ 39 N.Y.2d, at 302, 347 N.E.2d, at 907, does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland and Rivera, New York has not violated the Due Process Clause, and Patterson’s conviction must be sustained.” 432 U.S. 197, 206-07, 53 L. Ed. 2d 281, 290, 97 S. Ct. 2319, 2325.

In commenting on the Criminal Code of New York, the court notes that it contains some 25 affirmative defenses.

“The Due Process Clause, as we see it, does not put New York to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment.” 432 U.S. 197, 207-08, 53 L. Ed. 2d 281, 290-91, 97 S. Ct. 2319, 2326.

Here the Illinois criminal code has 10 exemptions applicable to this specific crime.

We accordingly hold that it was proper to instruct the jury that the burden of proving, by a preponderance of the evidence, that the defendant came within an exemption to the statute was upon him. The burden of proving each element of the crime is always upon the State and remains so thoughout the proceedings. The instructions given met this test.

The judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE MORAN,

dissenting:

This case should not have gone to the jury. The defendant’s motion for a directed verdict should have been allowed at the close of the State’s case in chief.

In my view, the majority has incorrectly posed the first issue. The threshold question is whether the revolver, within a locked glove compartment to which there was no key, was “immediately accessible” to the defendant. On that question, my review leads me to a conclusive “No.”

In the case in chief, the State’s evidence disclosed that a search of the defendant and his vehicle did not reveal a key to the glove compartment. It was argued to the jury that defendant could have disposed of the key when he noticed the officers. Not only is this argument purely conjectural and unsupported by the record, but it is disproved by the State’s own witnesses. The officers testified that defendant, who was outside the car, was but a short distance from them when he first noticed their presence, and the officers stated that they were able to observe defendant at all times prior to the arrest. There is simply no evidence that the defendant disposed of the key.

An important fact — one not mentioned in the majority’s opinion — was brought out, again, by the State. It took between 5 and 10 minutes for the glove compartment to be opened with the aid of two screwdrivers. This fact alone proved that the weapon was not immediately accessible.

In each of the cases cited by the majority, the weapon was accessible in a matter of seconds. That fact makes those cases clearly distinguishable from the instant case.

Under the State’s evidence in its case in chief, it was shown that the gun was not immediately accessible to the defendant. It was therefore unnecessary for the defendant to prove the exemption. On this basis, the trial court should have directed a verdict for the defendant. As a result of today’s opinion, the court has deleted the phrase “not immediately accessible” from the legislative enactment.

MR. JUSTICE GOLDENHERSH joins in this dissent.


author: MR. JUSTICE GOLDENHERSH MR. JUSTICE DOOLEY,

text:
    (No. 49342.
    WILEY EMBERTON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.

      Opinion filed January 27, 1978.

      Modified on denial of rehearing March 30, 1978.

      DOOLEY, J., specially concurring.
    James Walker, Ltd., of Bloomington, for appellant.
    Costigan & Wollrab, of Bloomington (William F. Costigan, of counsel), for appellees.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendants, State Farm Mutual Automobile Insurance Company and Ellerbe Associates, Inc., appealed from the judgment of the circuit court of Peoria County entered in favor of plaintiff, Wiley Emberton, on a jury verdict in the amount of $36,500. The appellate court reversed (44 Ill. App. 3d 839), and we allowed plaintiff’s petition for leave to appeal. Defendant State Farm is the owner of certain premises in Bloomington, upon which was being constructed its “corporate headquarters” building. Defendant Ellerbe had entered into a contract with defendant State Farm to provide architectural services for the design and construction of the building. Plaintiff was on the premises as an employee of Utley-James, Inc., the general contractor, and, while engaged in the moving of a portable scaffold, suffered injuries. Charging violations of the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60-69) plaintiff brought suit against both State Farm and Ellerbe to recover damages for the personal injuries suffered. Relying on McGovern v. Standish, 65 Ill. 2d 54, the appellate court held that as a matter of law the defendants were not persons “having charge of” the construction of the building and that the circuit court had erred in denying defendants’ post-trial motion for judgment notwithstanding the verdict.

Section 9 of the Structural Work Act in pertinent part provides:

“Any owner, contractor, sub-contractor, foreman or other person having charge of the erection [or] construction *** of any building *** within the provisions of this act, shall comply with all the terms thereof ***.
* * *
For any injury to person or property, occasioned by any wilful violations of this act, *** a right of action shall accrue to the party injured, for any direct damages sustained thereby; ***.” Ill. Rev. Stat. 1975, ch. 48, par. 69.

This court has several times considered the question of what evidence is required to prove that a person is one “having charge of” work within the contemplation of the Act. In Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill. 2d 305, the freight dock on the defendant railroad’s premises was being rebuilt. The engineering and architectural plans for the work were prepared by the office of its chief architect, who was also charged with inspecting the work to see that it was constructed according to specifications. Under a contract with the defendant railroad, all of the construction work was being performed by E. H. Marhoefer and Company. The evidence showed that the bricklaying, assembling and construction of scaffolds, and the placement of ladders, were all performed by Marhoefer’s employees and under their supervision. There was testimony that the chief architect for the defendant railroad and other personnel made frequent inspections of the construction project, sometimes spending as much as five hours a day on the premises, but it is not clear from the evidence as to how detailed those inspections were. There was no proof that they exercised control over the manner in which the work was being done or that they inspected the scaffolds, ladders or other appliances. The court held that under the circumstances shown it was a disputed question of fact “whether the owner could be deemed to be in charge of the construction within the meaning of the act, and it would b e the province of the jury, under proper instructions, to make that determination.” 22 Ill. 2d 305, 323.

In Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, defendant Commonwealth Edison was engaged in remodeling an electric generating plant which consisted of several buildings occupying an area of three city blocks. It entered into 70 to 80 contracts with numerous contractors. The defendant, Sargent & Lundy, a firm of consulting engineers, prepared the contracts, the work plans, structural designs and specifications used in the construction work. Plaintiff Larson’s employer (Paschen) had a contract for work in unit 7 of the project.

The contract provided that Paschen was to perform additional work as directed by Edison. Edison issued a “purchase order” to Paschen for the erection of a barricade between two units of the project which required Paschen to furnish certain labor, materials, tools and equipment “as directed by the Station Construction Department, and in accordance with drawings to be issued by Sargent & Lundy.” (33 Ill. 2d 316, 319.) While the work authorized by the purchase order was in progress, plaintiff Larson was injured.

Sargent & Lundy had no personnel working at the construction site, but six employees of Edison’s station construction department were on the job at all times. They exercised no control over the work “but merely inspected to see that the terms and specifications of the contracts were complied with.” (33 Ill. 2d 316, 319.) Their inspection did not extend to the kind or safety of the scaffold, their only interest being to determine whether Edison “got the type of barricade specified.” (33 Ill. 2d 316, 319.) In reversing the judgments entered in favor of both defendants and remanding the cause for a new trial the court said: “While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated ‘having charge’ with ‘supervison and control’ in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term ‘having charge of’ is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill. 288, 323: ‘The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge,’ they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficent purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.” (33 Ill. 2d 316, 321-22.) Referring to Gannon the court said: “Nothing in Gannon suggests or holds that either the exercise of supervision and control, or the retention of the right to do so, are essential ingredients for having charge. And manifestly, the plain language of the statute does not limit duty and liability to owners retaining control and supervision of the work ***.” 33 Ill. 2d 316, 322.

In McGovern v. Standish, 65 Ill. 2d 54, upon which the appellate court relied, the majority held that the defendant architect was not liable under the Structural Work Act because “the evidence does not establish that the defendant had any right to control or direct the manner or methods by which the construction would be accomplished. Moreover, the undisputed testimony at trial was to the effect that the defendant had never attempted to exercise any control over the work by issuing orders or directives to those associated with the construction. Indeed, all of the evidence adduced at trial is consistent with the view that the defendant’s function was limited to generally overseeing the work in an effort to ensure that the completed project conformed with the plans and specifications.

“It is true that the contract between the Sisters and Wilson recognized in the defendant a right to supervise the work. But, as a general rule, even the ‘duty to “supervise the work” merely creates a duty to see that the building when constructed meets the plans and specifications contracted for.’ (Miller v. DeWitt, 37 Ill. 2d 273, 284.) The right to inspect the work, also given the defendant, is but ancillary to the defendant’s right to supervise. These rights, as afforded the defendant in this case, cannot alone form a basis for a finding of coverage under the Act.” (65 Ill. 2d 54, 69.) This holding rests upon a misreading of Larson. In Larson, discussing an instruction given in the case, the court quoted from Gannon to the effect that “ ‘before civil liability may be imposed upon the defendant owner under section 9 of the act, it must appear that he had charge of the construction operations involving the violation.’” (33 Ill. 2d 316, 323.) It went on, however, to point out that in that case there were some 75 to 80 contracts involving a large number of contractors, that the alteration work was going on in several buildings and that Edison could be liable “only if the activities by which it could be found to have charge extended to the work of Paschen, the contractor which erected the faulty scaffold.” (33 Ill. 2d 316, 323.) It is clear from the opinion that neither the exercise of supervision and control nor the retention of the right to do so “are essential ingredients for having charge” (33 Ill. 2d 316, 322) and that the “direct connection” with the work requisite to the imposition of liability may be proved by evidence of inspections or other activities and may also stem from the right to control the work whether or not that right is exercised. (33 Ill. 2d 316, 324.) The term “direct connection,” like the term “having charge of,” is one of common usage and understanding, and whether persons may be held to have a “direct connection” with the work depends upon the circumstances of each case. The contracts in McGovern (65 Ill. 2d 54, 63-65) provided for supervision by the architect, required the contractor to observe “The safety provisions of applicable laws” (65 Ill. 2d 54, 64) and conferred upon the architect the power to certify to the owner that sufficient cause existed to stop the work or terminate the contract (see paragraph 31, 65 Ill. 2d 54, 64). If the language in the majority opinion in McGovern was intended to mean that it may be shown that a person was “in charge of the particular operations which involved the violation from which the alleged injury arose” (65 Ill. 2d 54, 67) either by proof that he exercised control, or that the right to control the work existed, whether exercised or not, it correctly states the law. As construed by the appellate court in this case, the holding is clearly erroneous.

In Miller v. DeWitt, 37 Ill. 2d 273, the defendant architects were held liable under the Structural Work Act. The pertinent parts of the contract between the architects and the owner are set forth in the opinion (see 37 Ill. 2d 273, 280). Paragraph 38 of the contract entered into between the owner of the project and the general contractor defined the “architect’s status” and provided that “He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.” (37 Ill. 2d 273, 282.) In holding the defendants liable the court said, “We also believe that what we heretofore have said regarding the architects’ right to stop the work if it were being done in a dangerous manner makes them persons ‘having charge’ within the meaning of the act. (Larson v. Commonwealth Edison Co. 33 Ill. 2d 316.)” (37 Ill. 2d 273, 286.) What the court had “heretofore” said was that “From a careful examination of the record we conclude that if the architects knew or in the exercise of reasonable care should have known that the shoring was inadequate and unsafe, they had the right and corresponding duty to stop the work until the unsafe condition had been remedied. (Erhart v. Hummonds, 232 Ark. 133, 334 S.W.2d 869.)” 37 Ill. 2d 273, 285.

The testimony shows that defendant State Farm maintained a building design and construction department with 24 employees which was responsible for the design and construction of all company-owned buildings throughout the United States and Canada. It did preliminary layout work for the construction of State Farm’s corporate headquarters building in Bloomington and worked with defendant Ellerbe “to arrive at the final design and appearance of the building.” A contract was entered into with defendant Ellerbe for architectural services and with Utley-James, Inc., as the general contractor. All subcontracts were handled by the general contractor. During the period of construction, inspections were made by various of defendant State Farm’s employees, some in company with the representative of the architect. An exhibit, offered and admitted into evidence, shows in excess of 1,300 such inspections. John F. Harris, State Farm’s assistant vice president for building design and construction, went to the construction site approximately twice each week and remained there for periods of time which “varied from an hour to all day.” After the execution of the original contract, approximately 127 change orders were issued at the direction of defendant State Farm. At various times it directed the architect to issue a stop work order. A number of major changes were made involving thousands of items and resulting in an increase in the cost of the project of 36.7%.

Joseph Ostrander testified that he was appointed project representative by defendant Ellerbe, that he arrived on the job in August 1970 and remained there until September 1973. He made frequent on-site inspections and attended all of the weekly progress and coordination meetings conducted by the general contractor with the subcontractors. When he became aware of a condition which was not safe he mentioned it to the general contractor’s manager. He recalled specifically pointing out an unsafe condition concerning the lack of hand railings on a stair landing. That particular incident was later discussed at a progress meeting. In meetings with representatives of State Farm he had given directions on the methods of installing acoustical tile, had required that a certain electrical ground be installed before slabs were poured, and had approved a proposed method of fabricating floor box girders. The testimony shows that Mr. Harris frequently attended the cordination meetings held by the general contractor with the subcontractors.

Although the contracts between State Farm and the general contractor and State Farm and Ellerbe are not in evidence, defendants, in their brief, state that both contracts were standard AIA (American Institute of Architects) forms. Excerpts from the contract between the defendants were offered and admitted into evidence and contained the following:

“1.1.17 The Architect shall have authority to reject Work which does not conform to the Contract Documents. The Architect shall also have authority to require the Contractor to stop the Work whenever in his reasonable opinion it may be necessary for the proper performance of the Contract. The Architect shall not be liable to the Owner for the consequences of any decision made by him in good faith either to exercise or not to exercise his authority to stop the Work.”

We consider first whether the appellate court correctly held that the evidence was insufficient to support the jury’s verdict that defendant State Farm was “in charge of” the work within the meaning of the Structural Work Act. We are unable to distinguish the participation of defendant State Farm in the construction of its building from the participation of the defendant railroad in the construction involved in Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill. 2d 305. Here, as in Gannon, all of the work was being done by a contractor, but employees of the defendant made frequent inspections of the construction activity. In both cases it was testified that the owner had not exercised control over the manner in which the work was being done or concerned itself with the assembling and construction of scaffolds. Here, defendant State Farm’s assistant vice president for building design and construction made frequent visits to the construction site, spending periods of time which varied from an hour to an entire day. In Gannon the chief architect of the defendant railroad “and other personnel made frequent inspections of the construction project, spending as much as five hours a day on the premises on occasions.” (22 Ill. 2d 305, 323.) Here too, as in Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, defendant ordered periodic changes in the work, and there is nothing in the opinion in Larson to indicate that the defendant owner retained or exercised the degree of supervision and control shown by the record in this case.

As stated in the language of Illinois Pattern Jury Instruction (IPI) Civil No. 180.02: “*** it is possible for more than one person to ‘have charge of’ the work. One or more persons can have charge of the overall work, and other persons can have charge of the phase of the work in connection with which an injury occurs.” In Larson the work involved a large parcel of land, numerous structures, and 75 to 80 separate contracts. There is no indication whether portions of the project, other than the one in which plaintiff Larson was employed, were being performed under contracts entered into directly by Commonwealth Edison or under contracts entered into with someone acting in the capacity of a general contractor. A careful reading of the opinion shows that although the court acknowledged that under Gannon “an owner must have some direct connection with the operations, over and above mere ownership or the employment of an independent contractor” (33 Ill. 2d 316, 322), such “direct connection” does not require either the exercise of supervision and control or the retention of the right to do so. On this record we hold that there was sufficient evidence for the jury to find that defendant State Farm was one of the persons “having charge of” the construction and that the appellate court erred in reversing the judgment.

We consider next the question whether there was sufficient evidence from which the jury could find that the defendant architect Ellerbe was “in charge of” the work within the meaning of the Structural Work Act. As previously noted, paragraph 1.1.17 of the contract between these defendants provided: “The Architect shall also have authority to require the Contractor to stop the Work whenever in his reasonable opinion it may be necessary for the proper performance of the Contract.” In Miller v. DeWitt, 37 Ill. 2d 273, in which the defendant architects were held liable under the Structural Work Act, the contract provided: “He [the architect] has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.” (37 Ill. 2d 273, 282.) The court construed that language to confer upon the architects the right to. stop the work because certain “shoring” was inadequate and held that they were persons “having charge of” the work within the meaning of the Act. Although there are semantical differences between the provisions of the contract in Miller and here, we fail to perceive in what manner the powers conferred or the duties imposed upon the defendant Ellerbe differ from those in Miller. We hold therefore that the appellate court erred in holding that there was insufficient evidence to sustain the verdict of the jury against the defendant Ellerbe. In view of the conclusion reached it is not necessary to consider plaintiff’s contentions concerning allegedly erroneous rulings on the admission of evidence.

Following the entry of judgment in the circuit court, plaintiff’s employer, Utley-James, Inc., filed a petition for leave to intervene and requested that an order be entered subrogating it to the extent of payments made to plaintiff under an award for workmen’s compensation. The circuit court dismissed the petition and the employer appealed. Because of its reversal of the judgment entered in favor of plaintiff, the appellate court did not consider the matter. (44 Ill. App. 3d 839, 844.) Although contending that Utley-James was not entitled to subrogation, plaintiff concedes that the petition to intervene was erroneously dismissed. The order of dismissal is therefore reversed and the cause is remanded to the circuit court of Peoria County for further proceedings on the petition to intervene.

• For the reasons stated, the judgment of the appellate court is reversed and, except for the order dismissing the petition to intervene, the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed in part and reversed in part; cause remanded.

MR. JUSTICE DOOLEY,

specially concurring:

I agree with the judgment of the court and the persuasive opinion of Mr. Justice Goldenhersh.

In my opinion, it would facilitate the work of the nisi prius and appellate courts in this State if we overruled McGovern v. Standish (1976), 65 Ill. 2d 54, a nomine. It is contrary to the language of the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60—69), as well as a large body of decisions of this court on the issue as to what constitutes “in charge of.” See McInerney v. Hasbrook Construction Co. (1975), 62 Ill. 2d 93, 99-102; Voss v. Kingdon & Naven, Inc. (1975), 60 Ill. 2d 520, 525-27; McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151-52; Buehler v. Toynan Construction Co. (1972), 52 Ill. 2d 214, 216-17; Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 153, 157-58; Miller v. DeWitt (1967), 37 Ill. 2d 273, 286; Kobus v. Formfit Co. (1966), 35 Ill. 2d 533, 537-38; Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 321-23; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 323-24.

It is also inconsistent with the proposition that more than one person may have charge of the work. Miller v. DeWitt (1967), 37 Ill. 2d 273, 291; Li Petri v. Turner Construction Co. (1967), 36 Ill. 2d 597; Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316. See my specially concurring opinion in Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 413, for a discussion of McGovern.

McGovern has already caused multiple problems for appellate courts. Here (Emberton v. State Farm Mutual Automobile Insurance Co. (1976), 44 Ill. App. 3d 839) the appellate court reversed a judgment by a divided vote on the basis of McGovern. In Meek v. Spinney, Coady & Parker Architects, Inc. (1977), 50 Ill. App. 3d 919, the dismissal of a complaint was affirmed as to one defendant on this particular issue, and in Powers v. National Mirror Works (1977), 52 Ill. App. 3d 592, a summary judgment was affirmed on this issue, with McGovern the key case.

Unless specifically overruled, the courts and the litigants will not know the status of this decision and will continue to be misled by it. In the final analysis, it is the litigant who pays the reckoning.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 49574.
    GEORGE FELTY, Appellant, v. NEW BERLIN TRANSIT, INC., et al.-(General Telephone Company of Illinois, Appellee.)

      Opinion filed March 23, 1978.

      Harris & Lambert, of Marion, for appellant.
    Charles R. Jelliffe, of Jelliffe 8c Ferrell, of Harrisburg, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, a journeyman lineman, sustained personal injury when he fell from a large, oil circuit breaker as it struck an overhanging cable during transport through the city of Metropolis. He brought this action in the circuit court of Williamson County to recover damages which resulted from this injury. The jury returned a verdict of $950,000 against four defendants involved in the transport of the circuit breaker and against appellee, General Telephone Company, who owned and maintained the cable. General Telephone appealed the judgment on the verdict, and the appellate court reversed (47 Ill. App. 3d 427), finding that the telephone company’s conduct was not the proximate cause of plaintiff’s injury, but that it merely created a condition which resulted in the accident only by reason of-subsequent, independent, and unforeseeable acts of the other defendants. We granted leave to appeal and now reverse and remand to the appellate court.

Plaintiff was hired to ride atop large, oil circuit breakers as they were being transported from Joppa to a Renshaw substation. The circuit breakers, which weighed nine tons each and were 16 feet 2Vz inches high, were anchored on a low-boy truck bed estimated to be 18 to 22 inches in height without the circuit breakers and 1 to 2 inches lower when they were loaded on it. Plaintiff’s job was to clear tree limbs, power lines and telephone cable where necessary, by lifting them over the circuit breaker being transported. As the large equipment slowly moved along, a spotter drove ahead of the truck and located the various obstructions, calling them to the attention of the truck driver. In addition, the driver kept a lookout for such obstacles, as did plaintiff, who had worked out a set of signals with the driver so that he could indicate to the driver when he should slow down and stop. About one month prior to moving the equipment, an employee of the transport companies traveled the route measuring the overhead wires by means of a 12-foot pole placed atop his 6-foot-l-inch frame. He testified that he remembered clearing the cable in question.

Prior to the accident, the same truck and driver had transported two identical circuit breakers under the cable in question without incident. Plaintiff testified that the spotter observed the cable and flagged the truck to a stop, whereupon he lifted the cables slightly and the truck eased under them. Another witness testified that the circuit breaker cleared this telephone cable on the first two trips without raising it. The first trip occurred in the evening prior to the day of the accident; the next took place in the morning of the same day the accident occurred.

The third trip occurred in the early afternoon of July 12, 1972. There was testimony that during all three trips the weather was hot and that heat will cause a suspended cable to sag. During this third trip, the truck reached a point one-half to one block south of the telephone cable, at which time the spotter stopped the truck. He then left to locate a second truck. The truck driver proceeded but did not observe the cable and did not slow his pace of 2 to 10 miles per hour. Plaintiff saw the cable and unsuccessfully signaled and yelled for a stop. The cable caught the top of a bushing on the circuit breaker at a point about one inch from the tip. The cable snapped, and, as a result, plaintiff was thrown to the ground, where he sustained serious injury.

Plaintiff alleged that General Telephone was negligent in allowing the cable to extend across a road at a height of less than 18 feet, the minimum height permissible under Illinois Commerce Commission regulations. The appellate court found sufficient evidence to support a jury finding of negligence on the part of the telephone company, but held that such negligence was not the proximate cause of the injury. Rather, “it was the negligent inattention of the driver of the truck transporting the circuit breakers, the absence of the spotters or lookouts, or the concurrence of both that was the immediate cause of plaintiff’s injuries.” 47 Ill. App. 3d 427, 430.

The appellate court relied on Merlo v. Public Service Co. (1942), 381 Ill. 300. In that case, defendant permitted an improperly insulated electric distribution line to sag over the parkway between the sidewalk and the curb. Plaintiffs’ decedents were electrocuted when a crane came into contact with the distribution line. The court there held that the intervening act of the crane operator relieved the defendant of liability even though it was negligent. The Merlo opinion recognized that proximate cause is ordinarily a question of fact, but applied a pre-Pedrick jury verdict review standard to find no proximate causation as a matter of law:

“[I]t can only be a question of law when the facts are not only undisputed but are also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn from them. [Citation.] Manifestly and undoubtedly, neither the lack of insulation nor the sagging wires did anything more than furnish a condition, and the intervening, independent act of the crane operator was the efficient and proximate cause of the fatal injuries to decedents.” 381 Ill. 300, 318.

In subsequent cases this court has repeatedly stated that the question of proximate cause is ordinarily a question for the jury. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 381; Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84; Ray v. Cock Robin, Inc. (1974), 57 Ill. 2d 19, 23.) In the recent case of Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, the court recognized the causation principles of Merlo, stressing the significance of the factual situation in each case. It was stated:

“Defendant has cited cases in which a defendant’s negligent conduct was determined as a matter of law not to have proximately caused the resulting injuries. (Merlo v. Public Service Co. (1942), 381 Ill. 300; Watson v. Byerly Aviation, Inc. (3d Dist. 1972), 7 Ill. App. 3d 662; Waters v. Futuristic Homes, Inc. (1st Dist. 1971), 131 Ill. App. 2d 143.) We emphasize, however, that each case must turn on its own facts. Defendant remains liable for its negligence if the intervening event was foreseeable. Moreover, to escape liability, defendant must demonstrate that the intervening event was unforeseeable as a matter of law. This we cannot conclude. Proximate cause is ordinarily a question for the jury to decide.” (64 Ill. 2d 380, 395.)

In the case before us, the crucial issue is whether the negligence of the four defendants who transported the circuit breaker was foreseeable. A foreseeable intervening force does not break the chain of legal causation. Here, the cable hung over the public road, unlike the wire in Merlo, which was suspended over an ordinarily untraveled area, the parkway. The jury, if properly instructed, a question we do not here decide, may well have felt that if a cable was negligently placed below the minimum height over a roadway, as some of the testimony here indicated to be the case, it was foreseeable that someone, although it might involve negligence on his part, would run into it. It is not necessary, of course, that the precise nature of the intervening cause be foreseen. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380; Lewis v. Stran Steel (1974), 57 Ill. 2d 94, 101.) We cannot conclude that all the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494.

The appellate court did not reach several serious questions raised by General Telephone, since its decision on proximate causation made ruling on the other issues unnecessary. We accordingly reverse the judgment of the appellate court and remand the cause to that court for consideration of those issues.

Reversed and remanded.


text:
    (No. 49571.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICHARD MANNING, Appellee.

      Opinion filed March 23, 1978.

    William J. Scott, Attorney General, of Springfield, and Edward Petka, State’s Attorney, of Joliet (Donald B. Mackay, Melbourne A. Noel, Jr., and Kenneth A. Gmacek, Assistant Attorneys General, of Chicago, and Robert Mueller, Assistant State’s Attorney, of counsel), for the People.

      Robert Agostinelli, Deputy Defender, and Michael J. Pelletier, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a jury trial in the circuit court of Will County, defendant, Richard Manning, was convicted of one count of burglary (Ill. Rev. Stat. 1973, ch. 38, par. 19— 1(a)) and two counts of possession of controlled substances (Ill. Rev. Stat. 1973, ch. 56½, par. 1402(a)(5) (barbituric acid); par. 1402(a)(6) (amphetamine)). He was sentenced to concurrent terms of not less than four nor more than eight years on each of the convictions for possession and not less than one year nor more than five years for the burglary. The appellate court affirmed the judgment of conviction for unlawful possession of amphetamine, but vacated the convictions for burglary and possession of barbituric acid. (46 Ill. App. 3d 877.) We allowed the People’s petition for leave to appeal.

Officers of the Joliet Police Department, responding to a call concerning a possible burglary in progress, arrested defendant inside a drug store. When searched, he was found to be in possession of an assortment of pharmaceutical pills and capsules, later determined to include 343.8 grams of amphetamines and 240.3 grams of barbiturates.

The opinion of the appellate court was filed prior to our decision in People v. King (1977), 66 Ill. 2d 551. Although contending that they were closely related, defendant concedes that the acts of burglary and possession of controlled substances were separate acts and that burglary is not a lesser included offense of possession of a controlled substance. People v. King is clearly applicable, and accordingly that portion of the appellate court judgment vacating the conviction for burglary is reversed.

The People contend that the appellate court erred in vacating the judgment of conviction on one count of possession. Citing People v. Harris (1972), 52 Ill. 2d 558, they argue that defendant’s knowledge of the nature of the drugs in his possession can clearly be inferred from the evidence and that in knowingly possessing two types of controlled substances he committed two separate offenses of possession. It is the defendant’s contention that the possession of both controlled substances arose out of a single act of possession and that the appellate court correctly vacated the judgment on the one count. Section 402 of the Illinois Controlled Substances Act in pertinent part provides:

“Except as otherwise authorized by this Act, it is unlawful for any person knowingly to possess a controlled substance. Any person who violates this Section with respect to:
(а) the following controlled substances and amounts, notwithstanding any of the provisions of subsections (b) or (c) to the contrary, is guilty of a Class 1 felony ***.
* * *
(5) 200 grams or more of any substance containing a derivative of barbituric acid or any of the salts of a derivative of barbituric acid;
(б) 200 grams or more of any substance containing amphetamine or methamphetamine or any salt of an optical isomer of amphetamine or methamphetamine; ***.” Ill. Rev. Stat. 1973, ch. 56½, par. 1402(a).

The Illinois Controlled Substances Act, for the most part, contains the provisions of the Uniform Controlled Substances Act. Although this court has not previously considered the question whether under section 402 of the Controlled Substances Act the simultaneous possession of more than one of the controlled substances enumerated would constitute separate offenses, the question has been considered in other jurisdictions with similar statutes. (Holding that simultaneous possession can constitute multiple offenses, see Melby v. State (1955), 70 Wis. 2d 368, 234 N.W.2d 634; State v. Adams (Super. Ct. Del. 1976), 364 A.2d 1237. Holding simultaneous possession to be one offense, see State v. Homer (1975), 22 Ore. App. 328, 538 P.2d 945; State v. Butler (1970), 112 N.J. Super 305, 271 A.2d 17.)

In Braden v. United States (8th Cir. 1920), 270 F. 441, the defendant was charged in four counts and convicted of the possession of morphine sulphate, cocaine, heroin, and smoking opium, all of which were found in one search of his residence. The Circuit Court of Appeals for the Eighth Circuit, in reversing the convictions on three of the four counts, stated: “Counsel for the United States contend that the words ‘any of the aforesaid drugs,’ as used in section 8, permit him to base a count upon each drug found in the possession of the defendant although the drugs were all found at the same time and place. We do not think that any such significance can be given to the word ‘any.’ The use of this word simply means that, if the defendant under the required circumstances should be found in possession of any of said drugs, he would be guilty. If a person steals four horses from the barn of another, all being of different color, it would not be competent to charge the thief with four different larcenies when the horses were all taken at the same time and place. Another illustration would be the larceny of articles of merchandise from a store. If twelve articles were all taken at the same time and place, we do not think it would be competent to charge the thief with twelve different larcenies.” 270 F. 441, 443-44.

Also analogous are Bell v. United States (1954), 349 U.S. 81, 99 L. Ed. 905, 75 S. Ct. 620, and Castle v. United States (1961), 368 U.S. 13, 7 L. Ed. 2d 75, 82 S. Ct. 123. In Bell the defendant pleaded guilty to two counts charging violations of the Mann Act (18 U.S.C. sec. 2421), each referring to a different woman. The transportation was effected in the same vehicle, on the same trip. The trial court imposed consecutive sentences and the court of appeals affirmed ((6th Cir. 1954), 213 F.2d 629). The Supreme Court reversed, stating that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses ***.” 349 U.S. 81, 84, 99 L. Ed. 905, 910-11, 75 S. Ct. 620, 622.

In Castle defendant was convicted on five counts of an indictment charging the unlawful transportation of five forged money orders. The Court of Appeals, Fifth Circuit, rejecting Castle’s contention that since there was a single transportation the district court erred in imposing multiple sentences, affirmed. (287 F.2d 657.) The Supreme Court, citing Bell, reversed on the ground that there was a single transportation and a single offense. 368 U.S. 13, 7 L. Ed. 2d 75, 82 S. Ct. 123.

In People v. Scott (1969), 43 Ill. 2d 135, defendant appealed from the denial of his petition filed pursuant to the Post-Conviction Hearing Act. He had been convicted and sentenced, inter alia, for three counts of burglary arising out of the same occurrence, but charging that the burglary was committed with the intent to commit three separate crimes. In vacating two of the sentences imposed on the burglary counts, the court said: “The primary concern in a burglary indictment is with the unlawful entry. (People v. Peck, 29 Ill. 2d 480, 484.) In the present case there was but one unlawful entry and the fact that the defendant might have intended to commit several crimes if the opportunity presented itself, does not justify conviction of and sentence for 3 separate crimes.” 43 Ill. 2d 135, 144.

In People v. Cox (1972), 53 Ill. 2d 101, the defendant had pleaded guilty to two counts of an information charging indecent liberties with a child. The charge arose out of an occurrence in which the defendant committed an act of intercourse and then an act involving oral-genital contact with an 8-year-old girl. On appeal from the denial of his petition filed under the Post-Conviction Hearing Act, in vacating the judgment and sentence entered on one count, the court held that the offenses arose from a single transaction and were based upon two acts almost simultaneous in time, involving a single victim, each of which acts was one of the three proscribed by the statute. Citing Bell and Castle, the court said, “In our opinion, in the absence of a statutory provision to the contrary the conduct here constituted a single offense and only one sentence should be imposed.” 53 Ill. 2d 101, 106.

We find apposite the following language from Bell v. United States: “When Congress has the will it has no difficulty in expressing it — when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.” (349 U.S. 81, 83, 99 L. Ed. 905, 910, 75 S. Ct. 620, 622.) In our opinion, in the absence of a statutory provision to the contrary, the simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed.

For the reasons stated, the judgment of the appellate court vacating the sentence imposed for the offense of burglary is reversed and otherwise the judgment is affirmed. The judgment of the circuit court of Will County is affirmed with respect to the offenses of burglary and possession of amphetamine; it is reversed with respect to the conviction for possession of barbituric acid.

Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part.