author: JUSTICE WARD

text:
    (No. 55013.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HOWARD G. FINK, Appellee.

      Opinion filed June 1, 1982.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Nancie S. Hudell, law student, of counsel), for the People.
    Carl W. Kuhn and William F. Linkul, of Glen Ellyn, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

On February 13, 1980, the defendant, Howard G. Fink, was arrested and charged in the circuit court of Du Page County with unlawful use of weapons under section 24 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(a)(1)). The complaint charged that he “knowingly possessed a bludgeon, commonly referred to as a nitestick [sic] *** in a 1977 Pontiac *** within the corporate limits of the Village of Lombard, Du Page County, Illinois.” On April 1, 1980, the defendant filed a pretrial motion to dismiss the complaint under section 114 — 1(a)(8) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 114-1(a)(8)), alleging a failure to charge an offense. After a hearing, at which the nightstick was examined, the court held that it was not a bludgeon within the intendment of section 24 — 1(a)(1) and dismissed the complaint. The People appealed under Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)), and the appellate court affirmed (94 Ill. App. 3d 816). We granted the People’s petition for leave to appeal (73 Ill. 2d R. 315).

The People make two contentions on this appeal: that a nightstick is a “bludgeon” within the intendment of section 24 — 1(a)(1), and that the circuit court, in considering the pretrial motion to dismiss the complaint, improperly went outside the face of the complaint and considered evidence in reaching its decision.

At the pretrial hearing, the defendant argued that a nightstick is not a bludgeon, which is referred to in section 24 — 1(a)(1) of the Criminal Code of 1961, but is a billy to which section 24 — 1(a)(2) refers. Section 24 — 1(a)(1), inter alia, makes it an offense simply to possess a bludgeon. Section 24 — 1(a)(2), inter alia, makes it criminal to possess a billy with the intent to use it unlawfully against another. The pertinent parts of the statute read:

“(a) A person commits the offense of unlawful use of weapons when he knowingly:
(1) Sells, manufactures, purchases, possesses or carries any bludgeon, black-jack, slung-shot, sand-club, sand-bag, metal knuckles or any knife, commonly referred to as a switchblade knife, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife; or
(2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, stun gun or taser or any other dangerous or deadly weapon or instrument of like character.” (Ill. Rev. Stat. 1979, ch. 38, par. 24-1(a).)

“Bludgeon” is not defined in the statute, and the trial court examined definitions provided in various dictionaries. They generally define a “bludgeon” as a short, heavy stick or club with one end loaded or thicker or heavier than the other. The court observed that the nightstick taken from the defendant’s car, though having a carved or knurled gripping surface on one end, did not have an end that was heavier or thicker than the other. The court dismissed the complaint.

Where the terms of a statute are not defined by the legislature, courts will assume that they were intended to have their ordinary and popularly understood meanings, unless to do so would defeat the perceived legislative intent. (Droste v. Kerner (1966), 34 Ill. 2d 495.) Applying this to the terms “bludgeon” and “billy,” we consider that a nightstick comes within the classification “billy” in section 24 — 1(a)(2). Webster’s Third New International Dictionary 240 (1971) defines “bludgeon” as “a short stick used as a weapon usu. having one thick, heavy or loaded end: billy.” “Billy” is defined as “a heavy usu. wooden weapon for delivering blows: club; esp.: a policeman’s club.” (Page 216.) “Nightstick” is defined as “a policeman’s club.” (Page 1528.) Thus, though “nightstick” is within a broad definition of “bludgeon,” the term comes within the specific definition of “billy.” In construing a statute, specific words in their commonly understood sense best indicate the legislative intendment. (People v. Holleman (1980), 82 Ill. App. 3d 409.) The specific reference to a “billy” (or a nightstick) in section 24 — 1(a)(2) makes it unnecessary to determine whether section 24 — 1(a)(1) can be broadly construed so as to include a nightstick. Possession of a billy or a nightstick would be criminal only if accompanied by an intent to use it unlawfully against another. This was not charged. The appellate court correctly affirmed the dismissal of the complaint.

The specific inclusion of a billy in the weapons covered under section 24 — 1(a)(2) would hardly make sense if simple possession of a nightstick had been covered under the term “bludgeon” in the prohibitions of section 24— 1(a)(1). The People suggest that the legislature, in using the term “billy,” was referring to a weapon which they describe as a “bill.” The suggestion is not convincing. Bills were used only “up to the 18th” century. See Webster’s Third New International Dictionary 215 (1971).

The People’s contention that the trial court erred in going beyond the face of the complaint and considering evidence at the pretrial hearing on the motion to dismiss was not argued in the People’s brief in the appellate court. Thus, the point has been waived (73 Ill. 2d R. 341(e)(7)) and will not be considered. (People v. Caldwell (1968), 39 Ill. 2d 346; see Mueller v. Elm Park Hotel Co. (1945), 391 Ill. 391.) In People v. Caldwell this court said: “The failure of a party to present an alleged error to the appellate court precludes him from now asserting that ground for our consideration in all matters which are not jurisdictional.” (39 Ill. 2d 346, 354.) Under the circumstances here, the fact that the question was discussed in the dissent (94 Ill. App. 3d 816, 819-20 (Reinhard, J., dissenting)) does not affect the waiver of the contention by the People.

In any event, even if the court had improperly received evidence in weighing the defendant’s motion, that fact could not validate a complaint that failed to charge an offense.

For the reasons given, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 53584.
    (No. 53686.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FREDERICK MARBLE, Appellee.—THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. WILLIE R. COLE, Appellant.

      Opinion filed June 1, 1982.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield, and Richard M. Daley and Bernard Carey, State’s Attorneys, of Chicago (Melbourne A. Noel, Jr., Thomas E. Holum, and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr and Thomas J. Leanse, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, and John J. Walsh, law student, of counsel), for appellee.
    John X. Breslin, Deputy Director of the State’s Attorneys Appellate Service Commission, of Ottawa, for amicus curiae State’s Attorneys Appellate Service Commission.
    Robert Agostinelli, Deputy Defender, and Verlin R. F. Meinz, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    No appearance for appellee.
   JUSTICE WARD

delivered the opinion of the court:

These consolidated appeals involve an examination of provisions of our statutes relating to escapes — section 31— 6 of the Criminal Code of 1961 and section 3 — 6—4 of the Unified Code of Corrections.

In cause No. 53584 we will set out only those facts necessary to an understanding of the questions presented. They are not in dispute. In July of 1978, the defendant, Frederick Marble, was serving a term with a provision for work release at the Chicago Work Release Center of the Cook County Department of Corrections in the Cook County jail. He was given the work-release sentence after he had violated a probationary term given upon his conviction for burglary. On the morning of July 7, 1978, Marble was allowed to leave the Cook County jail on work release with the requirement that he return by 8 p.m. He failed to return. He was indicted and later was found guilty in the circuit court of Cook County on two charges of escape — one under section 31-6(a) of the Criminal Code of 1961 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 31-6(a)) and the other under section 3-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a)). The court considered that the convictions were merged, and Marble was given the minimum sentence under section 31 — 6(a) of three years’ imprisonment. The appellate court reversed (People v. Marble (1980), 84 Ill. App. 3d 1), and we granted the People’s petition for leave to appeal (73 Ill. 2d R. 315).

In cause No. 53686 the defendant, Willie R. Cole, was at the Peoria Community Correctional Center serving a term on work release for burglary. On Friday, June 10, 1977, he left the correctional center on work release. He normally would have been required to return that evening, but he was given unescorted furlough leave until Monday morning. As a condition to being given leave, Cole was required to call the correctional center every few hours to report where he could be reached. When reporting during the evening of June 11, 1977, Cole was told that he had violated conditions of his work release and that he had to return to the correctional center immediately. A correctional counselor testified that Cole said he would shoot anyone who came after him and that he would return to the correctional center on Monday morning as originally scheduled. Cole never returned to the center, but he was apprehended 14 months later in Pekin. The circuit court of Peoria County found Cole guilty of escape in violation of section 31 — 6(a) of the Criminal Code of 1961. He was sentenced to three years’ imprisonment, which was to be served consecutively to the burglary sentence he had been serving. The appellate court affirmed the conviction. (People v. Cole (1980), 84 Ill. App. 3d 347.) We granted the defendant’s petition for leave to appeal (73 Ill. 2d R. 315) and consolidated the cause with that of defendant Marble.

Section 31 — 6(a) of the Criminal Code of 1961 states:

“A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution commits a Class 2 felony.”

Section 3 — 6—4(a) of the Unified Code of Corrections provides:

“A committed person who escapes or attempts to escape from an institution or facility of the Adult Division [of the Department of Corrections] *** is guilty of a Class 2 felony. A committed person who fails to return from furlough or from work and day release is guilty of a Class 3 felony.”

Each of the defendants contends that his conviction under section 31 — 6(a) was improper: (1) because he did not escape, but merely failed to return from an authorized absence; (2) because the institution to which he was committed was not a “penal institution”; and (3) because the Unified Code of Corrections provides the specific and exclusive penalty for failure to return from an authorized absence. Each of these contentions was asserted and rejected by us in People v. Simmons (1981), 88 Ill. 2d 270. The factual situation in Simmons was similar to the one here. The defendant there was convicted under section 31 — 6(a) after he failed to return to the facility after six hours of independent day release. On appeal, we held that the Peoria Community Correctional Center, where the defendant had been confined, and similar work-release centers or halfway houses, are penal institutions within the meaning of the statute. We consider that the Chicago Work Release Center of the Cook County Department of Corrections is such a facility. Too, we held that a failure to return from a temporary release may violate section 31 — 6(a). Lastly, we said that “escape is especially serious if it is either by a felon or from the facilities of the Adult Division,” and we noted that “there is no inconsistency between the two escape provisions, and no reason to read either as creating any exception to the other.” (88 Ill. 2d 270, 275.) Thus, the Unified Code of Corrections does not provide the exclusive authority for prosecuting a failure to return from an authorized absence by a person convicted of a felony. Both Marble and Cole were properly convicted of violating section 31 — 6(a) of the Criminal Code of 1961.

Marble also contends that his conviction for escape under section 3 — 6—4(a) of the Unified Code of Corrections was improper since he was not a “committed person” within the meaning of the statute. The statute refers to the escape of “committed persons.” Section 3 — 1—2 defines “committed person” as “a person committed to the Department.” “Department” is further defined as “the Department of Corrections of this State.” “Commitment” means “a judicially determined placement in the custody of the Department of Corrections on the basis of delinquency or conviction.” (Ill. Rev. Stat. 1977, ch. 38, par. 1003 — 1— 2.) Marble contends that he was not subject to the provisions of section 3 — 6—4 because he was in the custody of the Cook County Department of Corrections, not in the custody of the State of Illinois Department of Corrections.

Marble’s point is well taken. The language of the statute is clear. We follow definitions provided by the legislature. Since Marble was not committed to the Illinois Department of Corrections, he is not a member of the class to which section 3 — 6—4 was to apply. His conviction under section 3 — 6—4(a) was properly reversed by the appellate court.

We would observe here that the parties, in discussing this question, have apparently misconstrued section 5 — 7— 3 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 7—3). Section 5 — 7—3 reads:

“(a) Commitment under a sentence of periodic imprisonment for a misdemeanor shall be to the sheriff or the superintendent of the house of corrections or workhouse.
(b) Commitment under a sentence of periodic imprisonment for a felony may be under paragraph (a) of this Section or to the Department of Corrections if the Director of the Department has certified that appropriate facilities and personnel are available to administer sentences of periodic imprisonment.
(c) The Director of the Department of Corrections may certify that an appropriate institution has the facilities and personnel to administer periodic imprisonment. Such certification shall be filed with the clerk of the circuit court from which commitments to such institution will be accepted. Any such certification may be revoked by filing a notice of revocation with such clerk.”

The parties mistakenly believe that section 5 — 7—3 authorizes the Director of the Illinois Department of Corrections to certify that a county jail, or a similar local institution, has appropriate facilities and personnel to administer periodic imprisonment. Certification in this manner, the parties say, would allow an inmate of a local correctional facility to be considered to be committed to the Illinois Department of Corrections. Section 3 — 6—4(a), they note, would then be applicable to escapees from a local facility certified for periodic imprisonment. Section 5 — 7—3, however, allows prisoners on work release to be committed to the Department of Corrections if the Director certifies that the Department’s institutions have facilities to administer work-release programs. County institutions need not be certified before conducting programs of periodic imprisonment. There is evidence of this intention shown in the council commentaries following sections 5 — 7—3 and 5 — 6—3 of the sentencing chapter of the Unified Code of Corrections. (Section 5 — 6—3, inter alia, allows imposition of periodic imprisonment as a condition of probation.) The council commentary to section 5 — 7—3 states that the section “follows former law but adds commitment to the Department of Corrections when it certifies that it can receive such commitments.” (Emphasis added.) (Ill. Ann. Stat., ch. 38, par. 1005 — 7—3, Council Commentary, at 454 (Smith-Hurd 1978).) Moreover, the council commentary to section 5 — 6— 3 points out that “unless the Director of Corrections certifies under section [sie] 1005 — 7—3 that facilities for periodic imprisonment are available, probationers can only serve imprisonment in the county jail.” Ill. Ann. Stat., ch. 38, par. 1005 — 6—3, Council Commentary, at 399 (Smith-Hurd 1978).

In any event, even if section 3 — 6—4 were considered to be applicable to Marble, we would observe that he could not, on these facts, be convicted of escape under both section 31 — 6(a) and section 3 — 6—4(a). In People v. King (1977), 66 Ill. 2d 551, 556, this court held that “[prejudice results to the defendant *** in those instances where more than one offense is carved from the same physical act.” This court has stated, too, that “when a defendant’s act is in violation of more than one statute, and each statute requires different proof for conviction or provides for different defenses, the State has the discretion to determine under which statute, including that providing for a greater sentence, the defendant will be prosecuted.” People v. Hen derson (1978), 71 Ill. 2d 53, 56-57.

For the reasons given, the judgment of the appellate court in cause No. 53584, insofar as it reversed Marble’s escape conviction under section 3 — 6—4(a) of the Unified Code of Corrections, is affirmed; that portion of the judgment reversing the conviction under section 31 — 6(a) is reversed. That part of the judgment of the circuit court of Cook County relating to the conviction of Marble under section 3 — 6—4(a) of the Criminal Code of 1961 is reversed; the balance of the circuit court’s judgment is affirmed. In cause No. 53686 the judgment of the appellate court, affirming the judgment of conviction of Willie F. Cole in the circuit court of Peoria County, is affirmed.

53584 — Appellate court affirmed in part and reversed in part; circuit court affirmed in part and reversed in part.

53686 — Judgment affirmed.


author: JUSTICE SIMON

text:
    (No. 54800.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. ROBERT LEE MAYS, Appellee.

      Opinion filed June 1, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and James T. Teros, State’s Attorney, of Rock Island (Herbert Lee Caplan, Melbourne A. Noel, Jr., and David Bindi, Assistant Attorneys General, all of Chicago, and John X. Breslin and Terry A. Mertel, of the State’s Attorneys Appellate Service Commission, both of Ottawa, of counsel), for the People.
    Robert Agostinelli, G. Joseph Weller, Peter A. Carusona, and Michael Filipovic, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

The defendant, Robert Lee Mays, was charged by information with rape. After a trial by jury, he was convicted and sentenced to 10 years in prison by the circuit court of Rock Island County.

On appeal, the defendant made two arguments: first, that the trial court erred in refusing his tendered jury instruction for the offense of battery, and second, that because the tape recorder used to record proceedings failed to operate during closing arguments he was effectively denied his right to appellate review on the issues arising from those arguments. In a split decision, the appellate court agreed with the defendant’s first argument. (93 Ill. App. 3d 352.) Holding that battery is an included offense of rape, which therefore must be instructed upon, it reversed the defendant’s conviction and remanded the cause for a new trial. For reasons set forth below, we now reverse the appellate court and reinstate the judgment entered against the defendant by the circuit court.

The complaining witness testified that on the evening of July 5, 1978, she and a neighbor went in separate cars to a neighborhood tavern in Moline. There they met another friend and sat at the bar conversing and drinking. During the evening, she got up to go to the ladies’ room, and when she returned she noticed the defendant speaking for a moment to her companions.

When her friends left at approximately 12:30 a.m., she remained at the bar to finish her drink. The defendant came up to the bar and sat with her. She had never seen him before that day, but assumed from what she had observed earlier that he was a friend of her neighbor. The two of them talked for a half an hour. When at 1 a.m. the manager announced the bar was closing, she got up to leave, and the defendant followed her outside, asking for a ride down the street to a nearby tavern which kept later hours. She agreed.

According to the complaining witness, when the two arrived in the parking lot of the second tavern, the defendant grabbed her car keys. When she tried to escape, he beat her until she was unconscious. She testified that when she regained consciousness, the defendant pulled off her clothes and raped her. He then ran from the car.

The defendant’s story differed from the complaining witness’. He testified that he had known the complaining witness for some time. On the night of July 5, 1978, he saw her at the tavern and offered to buy drugs for her. He told the jury that he did not really intend to buy any drugs for her. He was only deceiving her and planning to take her money.

At his request, she drove him to a nearby tavern where, he told her, he could get the drugs. Before he would get them for her, however, he told her he needed to see her money. She gave him the money, and he counted about $190 to $200. When he attempted to leave the car with the money, she became suspicious and demanded it back. The defendant testified he then grabbed the complaining witness by the neck and hit her with the back of his hand. He fled with her money, but denied ever having raped her.

The defendant’s major contention of error concerns the court’s refusal of the instruction for battery he tendered. The refused instruction read, “A person commits the crime of battery who by any means knowingly or intentionally causes bodily harm to another person.” No instruction for the type of battery defined as physical contact of an insulting or provoking nature (Ill. Rev. Stat. 1977, ch. 38, par. 12-3(a)(2)) was requested, and we do not decide whether had such an instruction been tendered in this case it would have been properly rejected. The defendant argues that battery is an included offense of the rape he was charged with, and that he was therefore entitled to an instruction on it.

Because the arguments of both parties turn on the concept of “included offense,” our first task is to define this term. The Criminal Code of 1961 states in pertinent part, “ ‘Included offense’ means an offense which (a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged.” (Ill. Rev. Stat. 1977, ch. 38, par. 2-9.) The concept is employed in determining whether a party is entitled to an instruction for a crime other than the one charged. (See, e.g., People v. Cramer (1981), 85 Ill. 2d 92; People v. Smalley (1976), 43 Ill. App. 3d 600.) The definition of “included offense” does not indicate which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial. In People v. Cramer this court recently approved the use of the second test, while at the same time pointing out that the first test was seldom used and expressing no opinion on the propriety of the third test. Under the facts of this case, however, we reach the same result no matter which test is applied.

Applying the first test, we find that the Criminal Code of 1961 defines rape:

“Rape.
(a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape. Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations:
(1) Where the female is unconscious; or
(2) WTiere the female is so mentally deranged or deficient that she cannot give effective consent to intercourse.” (Ill. Rev. Stat. 1977, ch. 38, par. 11-1.)

Battery, on the other hand, can be committed in two ways: first, by intentionally or knowingly, without legal justification and by any means, causing bodily harm to an individual, and second, under the same circumstances, making physical contact of an insulting or provoking nature. Ill. Rev. Stat. 1977, ch. 38, par. 12-3.

As noted above, however, defendant requested an instruction only on battery by bodily harm. Although it may be difficult to pinpoint exactly what constitutes bodily harm for the purposes of the statute, some sort of physical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required. Otherwise there would be no need for the other type of battery, contact of an insulting or provoking nature. There is no such requirement in the definition of rape. It is clear then that under an analysis based on the abstract definitions of both crimes, battery based on bodily harm is not an included offense of rape.

The defendant, relying on People v. Cramer, argues that we should determine what is an included offense by referring to the offense as charged in the information rather than from the general statutory definition. Because the information filed by the State against the defendant in the case contains very little detail, simply reciting the requirements of the statute, applying this test in this case offers little assistance to the defendant.

The information states that on July 6, 1978, Robert Lee Mays “committed the offense of rape in that the said defendant, a male person of the age of 14 years and upwards, had sexual intercourse with [the complaining witness], a female not his wife, by force and against her will.” The defendant contends that since the information alleges rape by force rather than rape of an unconscious or incompetent person, battery based on bodily harm would be an included offense. Bodily harm, he argues, is necessarily implicit in any showing of force. We do not agree. As observed above, the element of bodily harm necessary to prove battery by bodily harm must involve physical pain or damage to the body. Proof of force requires no such showing. Although bodily harm in the above sense often occurs during a rape, the State could have proved the facts of the information without ever having shown that the complaining witness suffered physical pain, lacerations, bruises, abrasions, or the like. Thus even under the test preferred by People v. Cramer, battery by bodily harm is not an included offense of rape.

Next, the defendant invites this court to endorse the third test — that certain crimes whose elements are shown by evidence at trial must be instructed upon, if requested by the defendant. The defendant cites a line of Federal cases to illustrate this rule. (United States v. Johnson (9th Cir. 1980), 637 F.2d 1224; United States v. Pino (10th Cir. 1979), 606 F.2d 908; United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314.) These cases reject the notion that because the State can only request instructions on offenses necessarily included in the greater offense as charged in the indictment, the defendant should be similarly limited. They hold that such a concept of mutuality is an anomaly. Restrictions on the State’s ability to request an instruction for a lesser offense stem from the defendant’s due process right to know the nature of the charges against him. The defendant’s right to instructions stems from an attempt to give him the full benefit of the reasonable doubt standard; the State has no offsetting due process right of notice. As such, these Federal cases adopt a different test for defendant-requested instructions on lesser offenses, the inherent-relationship test.

Even if we were to follow the cases defendant cites and adopt the inherent-relationship test, or something like it, the instruction the defendant tendered would not be appropriate in this case. By “inherent relationship,” the Federal courts of appeals meant that the two offenses “must relate to the protection of the same interest, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.” (United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314, 319.) Under such a test, a defendant accused of involuntary manslaughter for a death caused by his driving might be entitled to an instruction for careless driving, if a factual issue as to whether the defendant’s actions were sufficiently culpable to convict for manslaughter existed. (United States v. Pino (10th Cir. 1980), 606 F.2d 908.) The fact that careless driving requires that the defendant’s actions take place while driving a car and that involuntary manslaughter does not was not considered to be sufficiently distinctive to excuse an instruction on careless driving. On the other hand, it would be inappropriate to allow a defendant accused of selling heroin to insist upon an instruction for violation of the blue laws simply because at trial it became apparent that the sale occurred, if at all, on a Sunday. There is no inherent relationship between the two crimes. Similarly, although perhaps less plainly so, we do not believe the rape defendant was charged with and battery by bodily harm have such an inherent relationship. They protect different interests. Rape may occur even in those instances when no apparent bodily harm to the victim results. Battery by bodily harm is not simply a lesser version of rape. It is a wholly different type of crime. For that reason, no instruction was required on battery based on bodily harm in this case.

The second issue raised by the defendant concerned the adequacy of the record. At trial, both parties waived their right to have a court reporter record closing arguments. Instead, a tape recorder was used. Unfortunately, it malfunctioned, and so there is no verbatim transcript of what took place. No bystander’s report was certified, because the judge who presided over the trial had no present recollection of the argument at the time that it was discovered that a bystander’s report would be needed. The defendant now claims that this predicament effectively denies him his right to appellate review and therefore constituted reversible error.

We do not agree. Defendant submitted a proposed bystander’s report and was prepared to use it on appeal. It would be insupportable to hold for defendant on the ground that his report was not certified when, had the trial judge certified the report, the defendant’s conviction would have been upheld because nothing in the report showed error had been committed.

The only alleged errors in oral argument preserved in the defendant’s motion for a new trial are also included in the proposed bystander’s report submitted for certification. Neither of them is impressive. The defendant complains that the court erred in allowing the State to refer to the complaining witness as a Sunday school teacher and a member of the church council. This fact had been introduced into evidence by the State to explain why the complaining witness did not immediately inform the police of rape. She testified that as a Sunday school teacher and a member of the Ecumenical Council of Churches, she feared for her reputation. The defendant did not object. During closing argument, the State made references to that fact again in discussing the complaining witness’ credibility. We believe this is permissible. The witness’ credibility had been in issue and therefore the State may argue for it. (See Jackson v. United States (D.C. Cir. 1966), 359 F.2d 260, cert. denied (1966), 385 U.S. 877, 17 L. Ed. 2d 104, 87 S. Ct. 157; Brummett v. State (Tex. Crim. App. 1964), 384 S.W.2d 708; cf. People v. Moore (1916), 276 Ill. 392 (prosecutor has right to assume and argue truth of State’s case).) Although inflammatory remarks are certainly to be avoided, argument will not be limited merely because it places the defendant in a bad light. See People v. Heidman (1957), 11 Ill. 2d 501, 511.

The second alleged error concerned the State’s request for a conviction from the jury in order to protect other women in this area. The defendant objected to this remark during closing argument, and the circuit court sustained his objection. Because the defendant received the ruling he asked for, there is no need to further address the issue.

Finding no error at trial, we reverse the appellate court and affirm the circuit court.

Appellate court reversed; circuit court affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 55032.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIE T. SANGSTER, Appellee.

      Opinion filed June 1, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Basil G. Greanias, State’s Attorney, of Decatur (Robert J. Biderman, Deputy Director, and David E. Mannchen, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Karen Munoz, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Following allowance of defendant’s motion for change of venue from Macon County, defendant, Willie T. Sangster, was convicted by a jury in the circuit court of Champaign County of the offenses of murder, armed robbery and aggravated kidnaping and sentenced to consecutive terms, respectively, of 40, 30 and 15 years. The appellate court affirmed the convictions but vacated the sentences and remanded for resentencing. (95 Ill. App. 3d 357.) We allowed the People’s petition for leave to appeal (73 Ill. 2d R. 315).

This case arises from the same occurrence involved in People v. Lewis (Cornelius) (1981), 88 Ill. 2d 129, and People v. Lewis (Bernice) (1981), 88 Ill. 2d 429. The facts are stated at length in those opinions and in the opinion of the appellate court and will be reviewed here only to the extent necessary to discuss the issues. Although defendant did not physically participate in the commission of the crimes charged, he was held accountable for what occurred. (Ill. Rev. Stat. 1977, ch. 38, par. 5—2(c).) In vacating the sentences the appellate court held that under section 5—8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4(a)) accessories may not be sentenced to consecutive terms. The People contend that, because severe bodily injury resulting in death was inflicted during the commission of multiple offenses, under section 5—8—4(a) consecutive sentences may be imposed upon a defendant convicted under an accountability theory.

In his brief, defendant contends that because of trial errors his convictions cannot stand, and we shall first consider whether the alleged errors require reversal of the judgments. Defendant contends first that his convictions should be reversed because they rest upon the uncorroborated testimony of accomplice Maurice Farris, and upon testimony of Margaret Morgan, whose inconsistent testimony, coupled with her motives to implicate defendant, render her testimony incompetent. The appellate court has reviewed the testimony in question, and the arguments defendant makes here are thoroughly considered and discussed in its opinion. (95 Ill. App. 3d 357, 359-61.) We agree with the appellate court that it was for the jury to determine the credibility of the witnesses (People v. Hubbard (1973), 55 Ill. 2d 142) and that the evidence was not so implausible or improbable as to suggest a reasonable doubt of guilt. Further discussion of this issue would serve no useful purpose.

Defendant contends next that the circuit court abused its discretion in admitting into evidence a letter written by defendant to Cornelius Lewis. The letter appears verbatim in the opinion of the appellate court. (95 Ill. App. 3d 357, 362.) Defendant contends that the letter, written approximately eight months prior to the commission of the crimes charged, could be interpreted as a reference to criminal activity irrelevant to the instant offenses and that any probative value of the evidence was outweighed by its prejudicial effect. The letter was offered into evidence by the People for the purpose of showing the relationship between defendant and Cornelius Lewis. Defendant’s arguments made here concerning the admissibility of the letter were thoroughly considered and discussed by the appellate court. Because the content of the letter was relevant in establishing the relationship between defendant and Lewis, and in light of the jury instruction limiting the purpose for which the evidence could be considered, we agree with the appellate court that the circuit court did not abuse its discretion in admitting the letter into evidence.

We next consider the People’s argument that the appellate court erred in holding that under section 5 — 8— 4(a) consecutive sentences could not be imposed upon a defendant found guilty under a theory of accountability. Section 5 — 8—4(a) provides:

“When multiple sentences of imprisonment are imposed on a defendant at the same time, *** the sentences shall run concurrently or consecutively as determined by the court. The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant- inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.” Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—4(a).

In rejecting the circuit court’s conclusion that under section 5 — 8—4(a) accomplices may be sentenced to consecutive sentences, the appellate court stated that it saw “no reason to add after the word ‘defendant’ in the phrase, ‘and the defendant inflicted severe bodily injury’ the phrase, ‘or someone for whose conduct the defendant is accountable.’ ” (95 Ill. App. 3d 357, 364-65.) Defendant argues that section 5 — 8—4(a) is to be strictly construed in favor of an accused and nothing is to be taken by intendment or implication against him beyond the obvious or literal meaning of the statute. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366; People v. Lutz (1978), 73 Ill. 2d 204.) Defendant also argues that the language of the statute must be given its plain and ordinary meaning. People v. Schwartz (1976), 64 Ill. 2d 275; People v. Moore (1978), 69 Ill. 2d 520.

In People v. Kessler (1974), 57 Ill. 2d 493, 498-99, and in People v. Hubbard (1973), 55 Ill. 2d 142, 147-48, we quoted with approval the following statement from People v. Armstrong (1968), 41 Ill. 2d 390, 398-99:

“The next contention of defendants involves a request to depart from the long established common-design rule, i.e., that where defendants have a common design to do an unlawful act, then whatever act any one of them does in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed. (People v. Tarver, 381 Ill. 411.) *** We have fully reiterated our support of this rule in recent cases, People v. Rybka, 16 Ill. 2d 394; People v. Johnson, 35 Ill. 2d 624, and we continue to do so in this case. Nor do we accept defendants’ argument that the statutorily defined rules on accountability (Ill. Rev. Stat. 1965, chap. 38, par. 5—2) in any way modify or abrogate the common-design rule. This section provides that a person is legally accountable for the conduct of another when ‘(c) Either before or during the commission *** he solicits, aids, abets, or agrees or attempts to aid, such other person in the planning or commission of the offense.’ Applying this section to this case the attempted robbery was the offense which the defendants were jointly committing and each was legally accountable for the conduct of the other. The result was murder, the killing of an individual without lawful justification while attempting or committing a forcible felony other than voluntary manslaughter. Ill. Rev. Stat. 1965, chap. 38, par. 9—1(a)(3).”

In Kessler, referring to section 5—2, the court said:

“We believe the statute, as it reads, means that where one aids another in the planning or commission of an offense, he is legally accountable for the conduct of the person he aids; and that the word ‘conduct’ encompasses any criminal act done in furtherance of the planned and intended act.” (57 Ill. 2d 493, 497.)

When section 5 — 8—4 was amended to its present form (Pub. Act 80 — 1099, effective February 1, 1978) the General Assembly must be presumed to have known that the pertinent provision of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 5—2) had been so construed. (Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364.) Had the General Assembly intended that the consecutive sentencing provisions be inapplicable to a defendant found guilty under section 5 — 2 it would have been a simple matter to provide for an exception as it did in section 9 — 1(b)(6)(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(b)(6)(a)).

For the reasons stated, the judgment of the appellate court, to the extent that it vacated the sentences imposed, is reversed and the judgment of the circuit court is affirmed.

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


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    (No. 55646.
    DAVID L. POLLARD, Appellee, v. THE INDUSTRIAL COMMISSION et al. (Peavey Mills, Appellant).

      Opinion filed June 1, 1982.

      James M. Gallen, of Evans and Dixon, Inc., of St. Louis, Missouri, for appellant.
    Andrew T. Nalefski, of Lakin, Herndon & Peel, P.C., of East Alton, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that on October 17, 1975, petitioner, David L. Pollard, suffered accidental injuries arising out of and in the course of his employment by respondent, Peavey Mills, and awarded him compensation for a period of 12 weeks of temporary total disability and compensation for 20% permanent partial disability. On review, without taking additional evidence, the Industrial Commission, finding that petitioner failed to establish a causal connection between the accident and his condition of ill-being, set aside the award. Petitioner sought certiorari, and the circuit court of Madison County, finding that it was against the manifest weight of the evidence, set aside the decision of the Commission and reinstated the award of the arbitrator. Respondent appealed. 73 Ill. 2d R. 302(a).

At the time of the accident petitioner was 28 years of age and employed by respondent as a mill sweeper. At the hearing before the arbitrator petitioner testified that while cleaning flour from the top of an electric motor at respondent’s plant he fell from the top of a six-foot ladder and hit a pipe, striking his back, leg, and the side of his knee. Petitioner also sustained cuts to four fingers. Petitioner immediately sought treatment from respondent’s plant nurse, Roberta Hopper, who put a pack on his knee, bandaged his fingers, and told him to go back to work. Petitioner returned to work and completed his shift. Petitioner stated that over the next SVe months he periodically returned to Ms. Hopper for heat treatments for the pain in his back. Petitioner eventually asked if he could seek treatment by Dr. Daniel Jones, a chiropractor, and apparently Ms. Hopper called Dr. Jones and made an appointment for petitioner. Petitioner was first treated by Dr. Jones approximately six months after the accident and had been under his care since that date. In addition, between the time of his initial examination by Dr. Jones and the time of the hearing, petitioner had been treated by several physicians. Petitioner testified that the treatments consisted of therapy and restriction of his physical activity. Petitioner testified that due to his injuries he was unable to return to work for respondent on a regular basis, and over the next four years, 1976 through 1979, he worked occasionally elsewhere. In the latter half of 1977, petitioner worked for Sears between 20 and 30 days on a delivery truck as a furniture mover. In 1979 petitioner worked for Lewis and Clark Community College on a student work grant performing tasks varying from grading papers to wiping off machines. During this time petitioner was enrolled as a student at Lewis and Clark Community College in the automotive program. Petitioner testified that the extent of the physical activities required in relation to his automotive training was to “get your hands dirty.” Petitioner admitted to repairing the transmission of his car in 1976 and stated that after performing this work he suffered physical difficulties which required him to see Dr. Jones. Petitioner described his ailments at the time of the hearing as pain in his low back, numbness in his legs, difficulty in walking, and the inability to lift anything heavy. At the time of the fall off the ladder he weighed between 285 and 300 pounds.

On cross-examination petitioner admitted that he saw Ms. Hopper on November 11, 1975, and complained of pain in his left hip. He denied that he told her that “he had been laying on the cold, wet ground the night before working on a car.” During 1976 he had performed various automotive work such as tune-ups and changing tires and stated that he was paid by the people for whom he did the work. Petitioner testified that he knew Dr. Jones prior to March of 1976 because about one and a half years prior to that time he had worked with Dr. Jones at respondent’s plant. Petitioner could not remember the dates but stated that Dr. Jones had released him to return to work two or three times during his period of treatment. He had been advised by two physicians to wear a back brace but did not wear one because he could find none to fit him. Petitioner stated that his employment by Sears was on a periodic, as-needed basis and that he worked a full week during Christmas week, “the heaviest week they’ve got.” On redirect examination, petitioner testified that during the period from 1976 through 1979 he frequently turned down auto repair work such as motor overhauls, transmission repairs, rear-end repairs, and exhaust-system repairs. On being questioned by the arbitrator, petitioner testified that working for Sears he had earned between $1,200 and $1,400 and that his earnings for auto repair work over the entire period between 1976 and 1979 were between $1,400 and $1,600. Petitioner estimated that his earnings for 1979 were approximately $1,100.

Dr. Jones, called by petitioner, testified before the arbitrator that on March 3, 1976, he received a call from Ms. Hopper and was told that petitioner desired treatment for a back injury. Dr. Jones saw petitioner that same day and in taking a history was told that his injuries, consisting of pain in the shoulder, neck, low back, and down both legs, resulted from a fall from a ladder at respondent’s plant. The examination at that time indicated that there was some subluxation of the vertebrae. Petitioner was treated and released for regular work on March 8, 1976, and advised to try to do his work without any additional stress. The treatment consisted of the manual manipulation of the affected areas and deep heat and traction. Dr. Jones continued to treat petitioner through July of 1976, when he discovered that petitioner’s condition had gradually worsened. On July 26, 1976, Dr. Jones advised petitioner to stay off work. The doctor’s records showed that petitioner reported on August 7, 1976, that his right leg gave way and he fell. Dr. Jones attributed the problems with petitioner’s right leg to the fall from the ladder. On August 30, 1976, Dr. Jones released petitioner to return to work on a restricted basis but was advised by petitioner that respondent would not allow a return to work under those circumstances. Petitioner was again released to return to work on November 30, 1976, at which time an improvement in his condition was indicated. An examination on January 1, 1977, showed that petitioner’s condition had worsened and Dr. Jones again took him off work. Dr. Jones stated that according to his records petitioner had not returned to work since that date. Dr. Jones stated that treatment during each office visit throughout this period of time consisted of manual manipulation of the spine and traction, and that the office visits were between two and five days and sometimes up to a week apart. During May petitioner had been complaining of occasional pain extending to the right leg and in the lower back area. Because petitioner’s condition had not improved satisfactorily, Dr. Jones referred petitioner to a neurosurgeon for examination. On July 11, 1978, petitioner again reported that his right leg gave way and he fell, aggravating the injury in his lower back. Dr. Jones testified that based upon his examination of petitioner’s X rays he was of the opinion that the injury to petitioner’s lower back suffered in the fall from the ladder caused his leg to give way, causing the later fall. Petitioner reported similar problems on October 17, 1978, March 16, 1979, and December 28, 1979. Dr. Jones stated that during 1979 petitioner was on a once-a-week treatment schedule. He stated that, based on a reasonable degree of chiropractic certainty, the original fall from the ladder was the cause of petitioner’s complaints, for which he was treated from the time of the original examination to the present. Dr. Jones stated that his diagnosis for petitioner was that there was a subluxation of the fifth lumbar vertebra, a thinning of the fifth lumbar disc, sciatic nerve involvement of both legs, and a compression fracture of the twelfth thoracic vertebra. Dr. Jones’ prognosis for petitioner was that he was stabilized quite well and that no change was expected. Dr. Jones stated that the nerve involvement appeared to be of a permanent nature and predicted that it would cause occasional problems in petitioner’s lower back and problems with the muscle coordination in the legs. Dr. Jones stated that in his opinion petitioner was unable to perform all the jobs that were required at respondent’s plant because of the heavy lifting and continuous bending and twisting involved. Dr. Jones explained that occasional lifting not in excess of 25 to 30 pounds would not be objectionable from a chiropractic standpoint.

On cross-examination, Dr. Jones stated that the injury in October of 1975 was not the sole cause of petitioner’s problems and that the examination and X rays revealed that both the thinning of the fifth lumbar disc and the compression fracture existed prior to the injury. Dr. Jones stated that he was aware that petitioner was performing auto repairs throughout the period and stated that in his opinion the extent of his work as described by petitioner was permissible. Dr. Jones was not aware that there was any type of regular automotive repair work being performed. He was not aware that petitioner had been working for Sears for approximately six or seven months in late 1977 and early 1978, nor was he aware that petitioner was employed by the college. Dr. Jones admitted that a weight loss would improve petitioner’s physical condition and decrease his symptoms. On redirect examination Dr. Jones stated that it was his opinion that the injury of October 17, 1975, aggravated the preexisting problems with petitioner’s back. It was his opinion that petitioner could have been performing the automotive work described at the hearing within the limitations prescribed. On re-cross-examination Dr. Jones stated that petitioner suffered no fracture as a result of the original fall.

Roberta Hopper, respondent’s plant nurse, testified that while employed by respondent she had occasion to see petitioner on numerous occasions in the nurse’s office at the plant. On April 14, 1975, petitioner complained of stiffness on the left side resulting from working outside at his home. Ms. Hopper again saw petitioner on October 13, 1975, at which time he reported a fall off a ladder and complained of cuts and abrasions to the tips of his fingers and of pain in his right hip on the side. She stated that it was the practice to record the complaints of workers and stated that other than the pain in the right hip and fingers petitioner made no other complaints on October 13, 1975. Petitioner returned to the nurse’s station on October 14, at which time she redressed his fingers and noticed discoloration on petitioner’s right hip. Petitioner told her that his hip and back were not hurting at that time. When asked if petitioner indicated an absence of pain in the back and hip on October 14, 1975, she testified, “No severe complaints.” Ms. Hopper stated she subsequently treated petitioner on October 28, and October 29, for a foreign object in his eye, and at these times there were no complaints of pain in the neck, back, hip or leg area. On November 11, 1975, petitioner came to the office complaining of pain in his left hip, and that was the first time pain in the left hip was mentioned. Petitioner told her he had been working on a car at home and it was cold and wet on the ground. Petitioner was advised that cold would affect the pain. She next saw petitioner on March 3, 1976, at which time he asked if he could be seen by Dr. Jones. Petitioner stated he had been hurting the last three weeks. March 3, 1976, was the last time she saw petitioner in her office. On that date, she contacted Dr. Jones and advised him of petitioner’s complaints and condition. She was the only person who worked in the nurse’s office during the time in question. Her treatments of petitioner consisted of heat treatments and administering medication consisting of a slight muscle relaxant and pain medication which relieves minor discomfort.

Petitioner offered into evidence the deposition of Dr. Robert F. Underwood a physician, taken on September 13, 1979. Dr. Underwood stated he first examined petitioner on January 12, 1977, at which time petitioner told him that he had fallen off a ladder at work and injured his low back and upper back, the area between his shoulder blades. Petitioner complained of numbness in the left leg and tenderness in the left knee. Examination revealed tenderness over the thoracic and lumbar vertebrae and tenderness and swelling in the area of the left knee. Dr. Underwood continued to treat petitioner until April 23, 1977. Treatment consisted primarily of diathermy and injections of Demerol, and petitioner was placed on Fastin, a medication to suppress the appetite and encourage weight loss. Petitioner was hospitalized on two different occasions during this period. Treatment while hospitalized consisted of being kept in traction, physical therapy, various medications for pain and relaxing muscles, and being placed on a low-calorie diet. The findings of the X rays taken during this time were essentially normal. Dr. Underwood’s diagnosis for petitioner’s condition was severe low-back strain and soft-tissue injury to the left knee. Dr. Underwood stated that in his opinion these conditions were the result of the injury suffered at work which petitioner had described to him.

Respondent introduced into evidence the deposition of Dr. Marvin R. Mishkin taken on August 9, 1977. Dr. Mishkin first examined petitioner on October 22, 1976, at which time petitioner weighed 275 pounds and complained of diffuse back pain. Dr. Mishkin found a lack of correlation between his objective findings of no muscle spasm and petitioner’s subjective complaints of back pain. Overall, petitioner’s X-ray findings were normal. Dr. Mishkin’s diagnosis was that there was no objective evidence of musculoskeletal disability. Other than petitioner’s chronic obesity, Dr. Mishkin found no evidence to account for petitioner’s prolonged and nonspecific complaints of pain. Respondent introduced into evidence a second deposition of Dr. Mishkin taken on August 7, 1979. Dr. Mishkin had again examined petitioner on December 15, 1978, at which time petitioner weighed 334 pounds. Petitioner’s X rays showed no change. After examining petitioner’s history of hospitalization and tests, including a negative myelogram, Dr. Mishkin concluded that these records were consistent with his lack of findings to account for petitioner’s pain. In response to questioning, Dr. Mishkin opined that there was no need for petitioner to be under chiropractic care and stated that, depending upon the nature of the chiropractic treatment, manual manipulation of the back could itself be a cause of trauma to the back. Dr. Mishkin’s diagnosis remained the same.

During the period between the time petitioner was first treated by Dr. Jones and the date of the hearing before the arbitrator petitioner was hospitalized several times and examined and treated by several other physicians. On each occasion, petitioner attributed his condition of ill-being to the fall from the ladder at work. The medical findings were essentially low-back strain and chronic obesity.

The sole issue presented is whether the Industrial Commission’s determination that petitioner failed to show a causal connection between his condition of ill-being and the fall at respondent’s plant was against the manifest weight of the evidence. Respondent contends that there was ample evidence in the record to support the Commission’s finding. In support of this contention respondent points to the absence of corroborating medical entries in the plant medical records referable to petitioner’s purported complaints of back pain and treatment thereof. Respondent submits that although petitioner claimed he repeatedly returned for heat treatments for back pain during the 3V2 months following the fall, no such contact or treatment was substantiated by Ms. Hopper or her records. Respondent argues too that petitioner’s complaints throughout the course of his treatment by the numerous physicians who examined him were inconsistent in that petitioner’s complaints varied from lower back pain extending to the right leg, to complaints only of pain on the left side, as well as such miscellaneous complaints as pain to the upper back, throat, and neck, and nausea, all of which petitioner attributed to his fall from the ladder. Finally, respondent points to the conflicting medical opinions as to the causal relationship between the fall and petitioner’s alleged complaints. Respondent argues that this case turns upon the credibility of the witnesses and submits that it is the function of the Industrial Commission to resolve such factual questions.

Petitioner contends that complaints of pain to his lower back area were consistently made to medical personnel and that in giving the history of his accident he consistently related the cause of his injuries to the fall off the ladder at work. Petitioner points out that both Dr. Jones and Dr. Underwood attributed his condition of ill-being to his on-the-job fall and argues that the record is void of any contradicting testimony as to the cause of his condition of ill-being. Petitioner attempts to discredit Dr. Mishkin’s opinion on the basis that his first examination of petitioner did not take place until October of 1976, one year after the injury, and on the ground that Dr. Mishkin examined petitioner at the request of respondent.

The question whether the injury complained of was causally related to petitioner’s employment was a question of fact for the Industrial Commission. The Commission’s determination will not be set aside unless contrary to the manifest weight of the evidence, particularly where it involves the resolution of conflicting medical opinions. (Ford v. Industrial Com. (1981), 86 Ill. 2d 126; Caradco Window & Door v. Industrial Com. (1981), 86 Ill. 2d 92, 99.) Here there was medical testimony in the record from which the Commission could have inferred that petitioner’s condition was not causally related to the accident which occurred at his place of employment. Although Dr. Jones and Dr. Underwood concluded that there was a causal relationship between petitioner’s alleged complaints and the work-related fall, there is no requirement that the testimony of a treating physician be given greater weight than the testimony of a physician who has examined the employee solely for the purposes of testifying. (Arcole Midwest Corp. v. Industrial Com. (1980), 81 Ill. 2d 11, 16.) While petitioner contends that he complained of back pain for approximately SVz months after the accident, Ms. Hopper’s testimony did not corroborate this contention. It is the function of the Commission to assess credibility and draw reasonable inferences from testimony, and we may not substitute our judgment simply because we might have reached a different conclusion. On this record we cannot say that the Commission’s determination as to causal connection was contrary to the manifest weight of the evidence.

For the reasons stated, the judgment of the circuit court of Madison County is reversed and the decision of the Industrial Commission is confirmed.

Judgment reversed.


text:
    (No. 54652.
    ZENITH COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Joseph Suwanski, Appellee).

      Opinion filed June 1, 1982.

      Gifford, Detuno & Gifford, Ltd., of Chicago (Thomas W. Gifford, of counsel), for appellant.
    Murges and Bowman, Ltd., of Chicago (George J. Murges, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Joseph Suwanski filed an application for adjustment of claim under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.) for injury to his back. After a hearing, an arbitrator found that the claimant had sustained accidental injuries arising out of and in the course of his employment by the respondent, Zenith Company. The arbitrator awarded him compensation for both temporary total incapacity and permanent partial disability. That decision was reviewed and modified by the Industrial Commission. The Commission found that the claimant’s disability condition had not reached a state of permanency, and therefore it did not award permanent partial disability compensation. The Commission, however, increased the award of temporary total disability. The circuit court of Cook County, following the granting of Zenith’s petition for certiorari, confirmed the decision of the Commission. The respondent has appealed directly to this court under Rule 302(a) (73 Ill. 2d R. 302(a)).

The hearing before the arbitrator began on January 24, 1978. The claimant testified that on June 11, 1976, he was employed by the respondent as a general maintenance worker. He had an eighth-grade education and had worked for the respondent as a maintenance worker for the previous nine years. He was 52 years old at the time of the accident. In 1960, 1961 and 1965 he had injured his back while working for two other employers: the city of Chicago’s Bureau of Sanitation in 1960 and 1961, and the Permaline Rubber Company in 1965. After the 1961 injury, he underwent surgery for the removal of a disc and was operated upon after the 1965 injury as well. As a result of those injuries, he received workmen’s compensation awards for the permanent loss of use of his left leg to the extent of 221/2%, and his right leg to the extent of 7/2%. He re-injured his back in 1975 while employed by Zenith, but that injury did not require surgery.

He testified that he reported for work at 7 a.m. on Friday, June 11, 1976. Earlier that morning he awoke with a slight pain in his back, but said that he was able to “walk it off” before going to work. He had been experiencing back pain upon awaking since 1965.

On June 11, the claimant testified, his foreman instructed him to line a stainless-steel housing with fiberglass. The housing weighed 250 to 500 pounds, and it was about 46 inches in circumference and 12 to 16 inches deep. To enable him to reach the bottom of the housing, he and his supervisor, Dean Whitehead, tipped the tank and straightened it to a standing position. After they tipped the tank, the claimant felt a pain in his lower back. He told Whitehead, “Dean, I think I done something to my back. I don’t know what it is. I feel pain in my back and legs.” The accident occurred about 2 p.m., and the claimant rested the remainder of the day. That night he felt a “pinch in the back” and he noticed his legs were growing numb.

He did not work around the house that weekend, he testified. On Sunday, June 18, he did carry a two- or three-pound bag of garbage to a trash can about 25 feet from his house. He felt the same “pinch” in his back as he walked to the trash can. His wife had handed him the bag, and he tossed it into the trash can without bending over. As he walked back to the house, he felt a sharp pain in the back and fell to the ground. In a few minutes, he was able to stand up, and he returned to the house.

He stated that when he reported for work on Monday, June 14, he went directly to the company physician. The claimant told the doctor what had occurred while working on Friday and taking out the garbage on Sunday. The doctor told him that he had injured himself at home and that he would have to consult his own physician.

He then went to Hines Veterans Administration Hospital. There he was given medication and was directed to lie under a heat lamp and to bathe in hot water. He has since done that twice a day as he was instructed. He returned to the hospital three or four times after June 11 because of back complaints. It appears that those visits ended by August 2. Also since June 11, 1976, he has visited another physician, Dr. Manancho, about five times for examination and medication regarding the back. The only medication he was taking at the time of the hearing, however, was over-the-counter pain tablets four times a day.

The claimant said that now he awakes with pain in his back and numbness in his legs. He had experienced occasional numbness since 1961, but the numbness has been growing worse since June 11, 1976, the date of injury in the present claim.

The claimant stated that he went back to the respondent’s plant on July 2 or August 2, 1976, because his doctor had told him that he was able to do only light work until he regained his strength. He spoke with the head of the personnel office, who asked the plant foreman whether any light duty was available. The claimant was not given work. He returned to the personnel office on August 7 or 8, 1976, again seeking light work. Again, he was told that there was no work for him and was also advised that he had been laid off as of August 2.

He testified that he had not worked since June 11, 1976. However, he did own a hot dog vending truck that, for approximately six months, he operated for about an hour and half a day. He would drive to a location near a ballpark, and his wife and daughter would prepare and sell hot dogs while he sat in the front seat of the truck. He would put stacks of soft drink cans into the truck cooler, and was able to move single cases of soda. He collected unemployment compensation for a year.

Dr. Irwin T. Barnett, an orthopedic surgeon whom the claimant consulted at his attorney’s request, testified that he examined the claimant twice. The first examination was on June 25, 1976, and the second on February 3, 1977.

In the first examination the doctor found atrophy in the left leg, diminished sensation in two left toes, and weakness of dorsiflexion of the left big toe. From the examination the doctor’s diagnosis was: (1) “residuals of a low back injury, with bilateral sciatic nerve irritations”; (2) “post-laminectomy syndrome”; and (3) “flattening of the fourth and fifth lumbar disc spaces.”

In the second examination Dr. Barnett discovered increased atrophy in the left leg, increased disc involvement, and further nerve-root involvement in the left lower extremity. Sensory loss in the left toes, however, had subsided, and the weakness of dorsiflexion of the big toe was only “slight.” In addition, the doctor found that since the first examination the claimant had developed a scoliosis, or curvature of the lumbar spine. Dr. Barnett stated that the scoliosis brings pressure to bear upon the various musculature and ligamentous portions of the spine, causing pain. He considered that the scoliosis was traumatic in origin and said that in most cases where scoliosis is traumatic it will subside in time.

In response to a hypothetical question that assumed these medical findings and the facts to which the claimant testified, Dr. Barnett gave an opinion that the claimant, on June 11, 1976, aggravated his back condition. That aggravation precipitated new low-back difficulties and possibly additional disc and nerve-root involvement at the level of L-4 — L-5 or L-5 — S-l. He concluded that the scoliosis was attributable to the June 11 incident. The garbage-can incident of June 13, the doctor said, was a continuation or an exacerbation of what had occurred on June 11.

As to the claimant’s ability to work, the doctor said that the claimant could perform “sedentary work,” but that he should avoid work that involved lifting or excessive back bending or motion. Moreover, standing for two to four hours would be painful.

The respondent introduced evidence to counter the testimony of the claimant and of Dr. Barnett. The claimant’s employee health record had a nurse’s notation that appears to have been entered on June 11, 1976, at 7:30 a.m. The notation stated that the claimant sustained back pain when lifting a bag of garbage on June 10, and that the claimant was to see the plant doctor on June 14. The next notation was dated June 14 and was entered by the doctor. That notation is: “states that on Fri lifted,” “on Sun while carrying garbage noted low back pain T think I have recurrence of my back problem.’ ”

The respondent also introduced a medical report by Dr. Ben B. Camacho, Jr., who examined the claimant on August 12, 1977, at the respondent’s request. The report concluded, “It appears [that the claimant] could have just sustained musculo-ligamentous strain to his back in the alleged episode of June, 1976 with today’s examination showing a satisfactory recovery, without need for further treatment or disability as far as that alleged episode is concerned.”

On this evidence the arbitrator awarded compensation for 72/y weeks of temporary total incapacity for work and compensation for permanent and complete loss of use of the left leg to the extent of an additional 10%. (As has been stated, the claimant had already been compensated for a 22Vz% permanent loss of use of his left leg.)

The Commission, without hearing additional evidence, set aside the award. In its place, the Commission awarded compensation for temporary total incapacity for a period of 844/y weeks, and it made no award for permanent disability. The effect of the modification was to increase the award of temporary disability from compensation for the period between the time of the accident and the time the claimant returned to his employer seeking light work, to compensation for the period between the time of the accident and that of the arbitrator’s hearing (Ill. Rev. Stat. 1975, ch. 48, par. 138.19(b)). The Commission stated: “[T]he disabling condition is temporary and has not yet reached a permanent condition. *** [T]his award in no instance shall be a bar to a further hearing and determination of a further amount of temporary total compensation or of compensation for permanent disability.” Too, the Commission ordered that the respondent pay for mental, physical and vocational rehabilitation of the claimant.

The respondent challenges both the Commission’s finding that the claimant suffered accidental injuries arising out of and in the course of his employment, and its decision that temporary disability compensation should be for 844/? weeks rather than 7% weeks, as the arbitrator decided. The respondent recognizes that the Commission’s findings may be set aside only if contrary to the manifest weight of the evidence. White v. Industrial Com. (1982), 88 Ill. 2d 523, 526; Brinkmann v. Industrial Com. (1980), 82 Ill. 2d 462, 467.

First, we shall not disturb the finding of an accidental work-related injury. The claimant testified to the pain when he tilted the housing at work, and there was medical testimony that, assuming the facts according to the claimant’s testimony, this activity aggravated his previous back injuries.

The respondent contends, nevertheless, that this evidence is insufficient under the circumstances here. It cites Caterpillar Tractor Co. v. Industrial Com. (1978), 73 Ill. 2d 311, 315, where this court stated:

“Although a claimant’s own testimony may be sufficient to support an award, when the claimant’s testimony is virtually the only evidence favoring an award, and that testimony is repeatedly contradicted by the record, then it is this court’s duty to disallow the claim.”

The only contradiction of any substance upon which the respondent relies, however, is through a notation dated June 11, 1976, in the employee’s health records. There, the respondent’s nurse noted that the claimant sustained back pain when lifting garbage on June 10. The notation does not directly contradict the possibility of an accident in the afternoon of June 11. Moreover, the next notation appears to support the claimant’s testimony, because it mentions the June 11 lifting incident and places the garbage incident on June 13. The employees who made the notations did not testify and the custodian of the records upon whose testimony the records were admitted had no personal knowledge about the notations. In these circumstances, we cannot say that the contradiction of the claimant’s testimony was such as to make the Commission’s finding against the manifest weight of the evidence.

As to the second issue, we judge that neither was the award for temporary total incapacity against the manifest weight of the evidence. The respondent’s contention of error is based upon its argument that the claimant was laid off because no work was available, not because of any disability, that the claimant was “self-employed” at the hot dog truck, and that it seems he did not receive medical treatments after August 1976. The respondent’s argument is unsupported by the record. There was sufficient medical evidence that the claimant’s injury had caused a disability that prevented him from performing his maintenance job.

Too, the record hardly supports the statement that the claimant was “self-employed.” The claimant testified that he had sold hot dogs even before the injury, and we do not consider that because he spent a few hours a day for some months working at his hot dog truck with his family he should not be allowed to receive temporary total disability compensation. In J. M. Jones Co. v. Industrial Com. (1978), 71 Ill. 2d 368, 372-73, a case in which a warehouse worker sustained a back injury but was still able to drive a bus a few hours a day, it was stated:

“Respondent contends that because petitioner was employed part time as a bus driver, he may not be awarded temporary total disability. In E. R. Moore Co. v. Industrial Com. (1978), 71 Ill. 2d 353, we said: ‘Evidence that the employee has been or is able to earn occasional wages or to perform certain useful services neither precludes a finding of total disability nor requires a finding of partial disability. (E.g., Smallwood v. Industrial Com. (1972), 53 Ill. 2d 151, 156; Universal Bleacher Co. Service Co. v. Industrial Com. (1969), 43 Ill. 2d 168.) For the purposes of section 8(f) [section 19(b)], a person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists.’ 71 Ill. 2d 353, 361-62.
From our examination of the record we conclude that the fact that petitioner, for some period of time following his injury, could drive a school bus for a 11/4-hour period each morning and afternoon does not require reversal of the Commission’s finding that he was, for the period of time involved, temporarily totally disabled.”

The fact that he was no longer receiving medical treatment does not preclude an award. See Kropp Forge Co. v. Industrial Com. (1981), 85 Ill. 2d 226, 230.

As has been stated, the Commission, without taking evidence, ordered that the respondent pay for mental, physical and vocational rehabilitation of the claimant. We consider that that portion of the Commission’s order was improvidently entered and accordingly it is set aside. In Hunter Corp. v. Industrial Com. (1981), 86 Ill. 2d 489, we noted the absence of any statutory procedures to govern proposed rehabilitation programs, and we later recommended to the legislature that it examine whether rehabilitation counseling and procedures through public or private agencies should be provided for to assist.the Industrial Commission and the courts in this area. In Kropp Forge Co. v. Industrial Com. (1981), 85 Ill. 2d 226, we deemed that a similar order by the Commission, entered without supporting evidence, was harmless and we let it stand. We set aside that portion of the Commission’s order here because there appears to be a developing practice to have such orders entered routinely and unnecessarily and because their entry is a potential source of confusion.

For the reasons given, the judgment of the circuit court is affirmed, except for that portion which confirmed the Commission’s order for payment for rehabilitation of the claimant. The cause is remanded to the Industrial Commission for issuance of a decision in accordance with this opinion.

Affirmed in part and reversed in part; cause remanded, with directions.


author: JUSTICE CLARK

text:
    (No. 54831.
    PAUL MARTIN, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Caterpillar Tractor Company, Appellee).

      Opinion filed June 1, 1982.

      Scheele, Serkland & Boyle, Ltd., of Chicago (James C. Serkland, of counsel), for appellant.
    Robert F. Fahey, of Peoria, for appellee.
   JUSTICE CLARK

delivered the opinion of the court:

Pursuant to our Rule 302(a) (73 Ill. 2d R. 302(a)), Paul Martin appeals the judgment of the circuit court of Macon County which confirmed the decision of the Industrial Commission reducing the amount awarded by the arbitrator under the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.). The arbitrator found that Martin had sustained a work-related injury to his lower back while employed by respondent, Caterpillar Tractor Company, and awarded $2,470.55 for medical expenses, 24 weeks of payments for temporary total incapacity, and 10% permanent disability benefits under section 8(d)(2) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138(8)(d)(2)). The Commission reversed the award for permanent disability, finding that the claimant failed to prove that a permanent disability was sustained as a result of the accident at work. The Commission also reduced the award for medical expenses to $801.40, and reduced the amount of temporary total incapacity payments to 7 3/7 weeks.

The claimant had been employed by Caterpillar as an assembler since March 25, 1974. On December 1, 1975, he was hanging engines in tmcks on the assembly line when he was knocked backwards by an unexpected jerk from an air gun and fell from a height of three to four feet, catching his leg in the platform on which he was standing, and landing on his back on the hardwood floor. He immediately felt pain in his lower back, radiating down both legs, and numbness in his feet. He was taken to the first-aid station and then to the physician who treated Caterpillar employees, Dr. Pike. Dr. Pike examined him and prescribed pain medication.

The claimant remained off work until January 20, 1976. During this period he was under the care of Dr. John Wasem, a chiropractor. After his return to work, and between January and July of 1976, claimant testified to continued pain in his back and legs and numbness in his feet. He continued to visit his employer’s first-aid office on a regular basis, to take pain medication, to wear a back brace, and to receive heat treatments and adjustments from Dr. Wasem.

In July 1976 Dr. Pike referred claimant to Dr. C. G. Glenn, a neurologist, and Dr. J. L. Hubbard, an orthopedic physician, for tests at Decatur Memorial Hospital because of a suspected ruptured disc in the lumbar area of the back. The results of the tests, which included a lumbar myelogram, were negative with the exception of a decreased knee reflex in the left knee. Dr. Glenn concluded that though the claimant had sciatic pain there was no evidence of a ruptured disc. Claimant was told to return to work, which he did in August 1976.

Between August 1976 and June 1977, claimant worked at his regular job as an assembler. This involved bending, handling torque wrenches, and lifting objects up to 30 pounds in weight; he testified, however, that he tried to avoid lifting, getting other workers to do it and doing other jobs to make up. He continued to have back and leg pain which seemed to be getting worse. During this period, he testified, he was treated at Caterpillar’s first-aid station and by Dr. Pike, receiving heat treatments, ice packs, and pain medication, as often as twice a week.

On October 31, 1977, claimant sought treatment from Dr. Alain Menguy, an orthopedic surgeon at the Carle Clinic in Champaign, due to persistent back and leg pain. Dr. Menguy performed surgery on January 30, 1978, and removed two herniated discs at L-4 and L-5. Claimant was released from the hospital on February 9, 1978, and returned to work in June 1978. He testified that he still has some pain but that his condition has improved since the surgery.

The medical evidence at the arbitration proceeding consisted of the deposition testimony of Dr. Menguy and Dr. Joseph Schrodt, and the records of claimant’s July 1976 hospitalization for tests.

Dr. Schrodt testified that he had examined the claimant on three occasions: on January 25, 1976, some two months after the accident; on April 20, 1976; and on June 6, 1977. Dr. Schrodt stated that he had found no abnormality in the physical examination or X rays of the claimant’s back in any of these examinations. His opinion was that through the time of the third examination, in June 1977, there was no evidence that claimant had a ruptured disc. In Dr. Schrodt’s opinion, claimant’s symptoms were related to the fall at work, and these symptoms were consistent with a herniated disc; but he also stated that he could find no clinical correlation of these symptoms with a ruptured disc.

Dr. Menguy testified that his physical examination of the claimant on October 31, 1977, had suggested the possibility of a herniated lumbar disc. An electromyographic test was then performed at Dr. Menguy’s direction. Its results indicated the possibility of S-l nerve-root involvement. A lumbar myelogram performed on January 5, 1978, suggested the strong possibility of herniation between L-4 and L-5. The surgery followed on January 30, 1978.

In Dr. Menguy’s opinion, there was a direct relationship between the accident of December 1975 and his finding two herniated discs in 1978. He based his opinion on the claimant’s history and the persistence of symptoms indicative of rupture beginning at the time of the accident. The fall testified to by the claimant was, in his opinion, sufficient to cause a ruptured disc. He agreed, however, that a disc can rupture in the course of normal activities such as bending or stooping. He stated that he was unable to tell precisely when the herniation of claimant’s discs had occurred. In his opinion, it probably existed as early as July 1976. In response to a hypothetical question, Dr. Menguy gave his opinion that a person could continue to work and to engage in normal activities following an injury such as the claimant’s, though he would have pain.

The opinions of Dr. Schrodt and Dr. Menguy clearly diverged as to the existence of a herniated disc in the summer of 1976. The focus of their disagreement was the interpretation of the results of the tests conducted by Drs. Glenn and Hubbard in July 1976, in particular the negative myelogram. Dr. Menguy attributed considerable significance to the finding in July 1976 of a decreased left knee reflex, which he described as an “objective” finding (z. e., not subject to influence by the patient or the physician administering the test) strongly suggestive of herniation at L-4 to L-5. Dr. Menguy stated that a negative myelogram did not necessarily mean that a herniated disc was not present, especially where the knee reflex was absent. He stated that he had operated on numerous patients and found ruptured discs though prior to the operation their myelogram results had been negative. Dr. Schrodt attached more significance to the fact that Martin’s July 1976 myelogram result had been negative than to the finding of decreased knee reflex. Though he agreed that false negative myelograms (z.e., a negative myelogram result in the presence of a ruptured disc) sometimes occurred, he stated that he had no reason to believe that the July 1976 result was a false negative.

At the arbitration proceedings, the employer introduced two photographs taken by Joseph Penne, the company newspaper editor, on July 4, 1977. They showed the claimant participating in a tug-of-war contest at a Fourth of July celebration at a park in Decatur.

We have often stated that it is the function of the Industrial Commission to determine whether a causal relationship existed between the employment and the claimant’s injury, and that its judgment will not be disturbed unless it is contrary to the manifest weight of the evidence. (Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 175; Moore Electric Co. v. Industrial Com. (1980), 83 Ill. 2d 43, 48; County of Cook v. Industrial Com. (1977), 68 Ill. 2d 24, 30.) The burden is on the plaintiff seeking an award to prove by a preponderance of credible evidence all the elements of his claim, including the requirement that the injury complained of arose out of and in the course of his employment. Van Overmeiren v. Industrial Com. (1981), 84 Ill. 2d 374, 380; Deere & Co. v. Industrial Com. (1970), 47 Ill. 2d 144, 148.

The Commission evidently did not accept Dr. Men-guy’s opinion that there was a causal connection between the claimant’s fall at work on December 1, 1975, and the herniated discs for which he had surgery some two years later. It is for the Commission to judge the credibility of witnesses, including expert witnesses (Moore Electric Co. v. Industrial Com. (1980), 83 Ill. 2d 43, 47), and where conflicting medical testimony is presented it is for the Commission to determine which testimony is to be accepted. (Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168, 175; Van Overmeiren v. Industrial Com. (1981), 84 Ill. 2d 374, 379; McIntire v. Industrial Com. (1971), 49 Ill. 2d 239, 242.) Dr. Schrodt testified that he found no evidence of a ruptured disc in three examinations of the claimant over a period of 18 months following the accident at work. During this period claimant continued to work at his regular job and to engage in normal activities. The Commission could reasonably have concluded that the herniated disc for which claimant had surgery in January 1978 was not causally related to the earlier injury to his back. We cannot say that the Commission’s decision was contrary to the manifest weight of the evidence. Van Overmeiren v. Industrial Com. (1981), 84 Ill. 2d 374, 380.

The judgment of the circuit court of Macon County is therefore affirmed.

Judgment affirmed.