text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Peter J. Kiger, Defendant-Appellant.
    Gen. No. 53,621.
    First District, Second Division.
    September 29, 1970.

      Marvin D. Michaels, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a trial by the court without a jury the defendant, Peter J. Kiger, was found guilty of disorderly conduct and obstructing traffic in violation, respectively, of chapter 193-1 (d) and chapter 27-291 of the Municipal Code of Chicago. Judgments were entered, and the defendant was fined $500 for disorderly conduct and $200 for obstructing traffic. The trial court consolidated both charges for purposes of appeal. In this court the defendant contends that: (1) trial errors deprived him of a fair trial; (2) the judgments are contrary to the manifest weight of the evidence; and (3) the penalties are excessive.

This case involves two Municipal Code violations, quasi-criminal offenses, alleged to have been committed by the defendant near the Conrad Hilton Hotel in Chicago on Wednesday, August 28, 1968, during the Democratic National Convention. The record reveals that the defendant was arrested on August 28, 1968. On that date a quasi-criminal complaint was filed charging him with disorderly conduct at 720 S. Michigan Avenue in Chicago, Cook County, Illinois, on August 28, 1968, in that:

“. . . he knowingly failed to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm in violation of Chapter 193 Section ID of the Municipal Code of the City of Chicago.”

This complaint was signed by the complainant, Officer Rappaport #12256.

When the case was called for trial on September 9, 1968, a second quasi-criminal complaint was filed against the defendant. This one charged him with obstructing traffic on August 28,1968, at 800 S. Michigan in Chicago, Cook County, Illinois, in that:

“. . . he did willfully and unnecessarily hinder, obstruct, or delay another person in lawfully driving, walking or traveling along or upon a street or a sidewalk in violation of Chapter 27 Section 291 of the Municipal Code of the City of Chicago.”

This complaint was signed by the complainant, Frank Rappaport.

On September 9, 1968, the parties went to trial on both quasi-criminal complaints. Officer Frank Guy Rappaport was the sole witness for the City and the defendant was the only witness for the defense. When the case was called, the defendant indicated that he wished to represent himself. A colloquy between the court and Kiger disclosed that the defendant, twenty-nine years of age and a resident of New York City, had completed graduate school and one year of medical school. He did not wish to retain private counsel. The court expressed concern at the prospect of the defendant representing himself. At the suggestion of the Assistant Corporation Counsel but over the objections of the defendant, the court appointed an assistant public defender who was present in the courtroom to assist the defendant in his defense and said to him:

“Mr. Public Defender, I want you to stand behind him anyway and if at any time you feel that some assistance should be proffered, I want you to feel free to help this man protect his rights, whether he realizes it or not.”

The defendant then pleaded not guilty to the charge of disorderly conduct and, after the assistant public defender consulted with him, entered a similar plea to the charge of obstructing traffic. Thereafter, the defendant waived a jury trial.

Officer Frank Guy Rappaport, a City of Chicago policeman with three years of experience at the time of trial, testified that on August 28, 1968, at approximately 6:00 p. m., he was on duty in the vicinity of the Conrad Hilton Hotel in Chicago and was standing in a police line, facing north, across Michigan Avenue and south of Balbo Street; that he was in the center of this police line which was placed behind a Deputy Superintendent of Police; and that to the north of the Deputy Superintendent of Police Rocheford, a large crowd of people had assembled and were blocking Michigan Avenue. Continuing, Officer Rappaport testified that Deputy Roche-ford was using a loud speaker and imploring the crowd to move off the streets; that he saw the defendant at this time, approximately ten to twelve feet from him, and heard the defendant tell the crowd: “Don’t go. Kill the pigs. Hell no, we won’t go”; and that this confrontation continued for at least twenty minutes before Deputy Rocheford gave orders to the police to disperse the crowd.

Officer Rappaport testified that he then tried to arrest the defendant but was unable to do so at that time due to a pile up of humanity at the intersection of Michigan and Balbo. He did see the defendant moving toward a park which was located east of Michigan Avenue and directly across from the Hilton Hotel. Rappaport stated that he saw the defendant throw rocks at the police line as he moved into the park. Later, Officer Rappaport arrested the defendant for disorderly conduct. When arrested, the defendant was standing in front of a crowd in the park. In conclusion, Officer Rappaport testified that the defendant did not resist arrest until they reached the police van. The defendant then tried to pull back, but a police lieutenant assisted Rappaport and they both put the defendant in the van.

Before the defendant cross-examined Rappaport, the assistant public defender consulted with him. Thereafter, the defendant advised the court that he did not wish to conduct any cross-examination because his testimony was going to contradict the police officer. The defendant told the court:

“. . . I don’t want to take the time, and I don’t have the legal acumen to catch him in his testimony.”
THE COURT: “You have the public defender.”
DEFENDANT: “Yes, I waive that.”

The defendant than testified in his own behalf. He stated that he lived in New York City and was arrested, in the park, at approximately 8:00 p. m. on Wednesday, August 28, 1968; that earlier he had joined, as a spectator, approximately two thousand demonstrators on South Michigan Avenue near the Hilton Hotel and had sat down in the street with some of them; and that he attempted to act as a peacemaker when the police later cleared the streets and forced the demonstrators into the park. Continuing, the defendant stated that he saw the police hurt a number of young people which caused other demonstrators to throw rocks and cans at the police; that he found himself physically placed between the police line and the demonstrators and was urging both sides to stay away from each other and to remain calm; that he believed in nonviolence and not in calling people names; and that he did not join the crowd in uttering chants of profanity at the police.

After the police had cleared the street and set up a new police line on the sidewalk, the defendant found himself in the park with a few hundred demonstrators. He testified that he told them to stop piling rocks and throwing them at the police and that he led approximately one hundred and fifty people in songs such as “We Shall Overcome.” He was then arrested. In conclusion, the defendant testified that he never resisted arrest and that he never heard an order to disperse put out over a loud speaker by the police or uttered by an individual police officer.

After the defendant stated that “this is pretty much my testimony but the final thing is the time of the arrest,” the court noted that the position of the defendant was that he did not come to the scene with any idea of creating a disturbance. The defendant agreed and stated that he went to the hotel to demonstrate peacefully in an attempt to stop the Vietnam war. The defendant went on to say that he joined the larger group at Michigan and Balbo after leaving the Grant Park bandshell where he had acted as a peacemaker when a fracas occurred there between the police and young people.

In response to a question from the Assistant Corporation Counsel, the defendant thereafter admitted that: (1) at the bandshell the flag of the United States had been lowered and the flag of North Vietnam had been raised which led to the fighting and some rocks being thrown; and (2) he had come to Chicago in a car with three other people for the purpose of engaging in a week of demonstrations. The Assistant Corporation Counsel then asked for the maximum fine under each charge— $500 for disorderly conduct and $200 for obstructing traffic. The court found the defendant guilty of both charges and entered fines in accordance with the recommendation of the Assistant Corporation Counsel.

Initially, the defendant contends that he was deprived of a fair trial in that the trial court ignored his request that he be permitted to defend himself without counsel and, over his objections, imposed an assistant public defender upon him who allegedly permitted prejudicial error to be repeatedly committed and who allegedly actually stipulated to and encouraged additional prejudicial error. Specifically, the defendant urges that his appointed counsel permitted prejudicial hearsay testimony to enter the record when Officer Rappaport testified, without objection, and in detail as to the profanities screamed at the police by the members of the crowd during the incident. It is also urged that his appointed counsel erred when he did not object to testimony concerning the flag-raising incident in Grant Park.

This argument assumes that the assistant public defender was defendant’s counsel whereas, in fact, the record shows that the trial court always recognized that the defendant was representing himself as he had a right to do and the assistant public defender was serving only as an adviser. When the defendant elected to proceed pro se, he assumed responsibility for the legal consequences of his decision. The defendant did not object to the evidence now attacked. Earlier in the trial he had instructed the assistant public defender not to interject. Apparently the defendant chose to proceed without any legal assistance. We find no merit in the contention that he was deprived of a fair trial.

Secondly, the defendant urges that the judgment should be reversed because the findings of fact are not supported by the manifest weight of the evidence. Specifically, he contends that his testimony was uncontradicted and unimpeached whereas the testimony of Officer Rappaport indicated that he was not the same police officer who signed the complaint for disorderly conduct and, indeed, a comparison of the two complaints would indicate that they were signed by different individuals. Both parties recognize that a prosecution brought to recover a fine for the violation of a municipal ordinance is civil in form and is tried and reviewed as a civil proceeding. Village of Maywood v. Houston, 10 Ill2d 117, 139 NE2d 233 (1957); City of Chicago v. Lawrence, 42 Ill2d 461, 466, 248 NE2d 71 (1969); City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870 (1967).

Apparently the defendant recognized Officer Rappaport as being his arresting officer and the person who signed the complaints because he did not cross-examine the police officer on this point or any other point but merely stated that his testimony was going to contradict the testimony of the complaining witness. Furthermore, when the defendant obtained his own counsel for purposes of an appeal, counsel did not file a motion for a new trial setting out this information, as he could have done since thirty days had not yet elapsed from date of judgment, but filed his notice of appeal. In effect, this contention is raised for the first time on appeal after the defendant did not question, at the trial, the identity of Officer Rappaport as the complaining witness.

The evidence itself as to the disorderly conduct charge is merely conflicting and was for the trial court to resolve as the trier of fact in this nonjury case. The judgments are amply supported by a clear preponderance of the evidence. Indeed, the defendant admitted to sitting down in Michigan Avenue with the other demonstrators, a plain violation of the ordinance prohibiting the obstructing of traffic within the City of Chicago.

Lastly, the defendant contends that the penalties are excessive and the result of the flag incident matter being brought to the attention of the trial court by the Assistant Corporation Counsel. The maximum penalty was imposed for each violation. Section 193-1 of the Municipal Code of Chicago states that a person convicted of disorderly conduct shall be fined not less than $5 nor more than $500 for each offense whereas no penalty is set forth in section 27-291 of the Municipal Code which defines obstructing traffic. However, section 27-363 states that the fine in such cases in which no penalty is specifically provided shall be not more than $200 for each offense.

The maximum fines imposed in this case are supported by the record. The defendant admitted that he sat down in Michigan Avenue with the other demonstrators. In light of the unusual circumstances in this case, we will not interfere with the trial court’s discretion in imposing the maximum fine for obstructing traffic.

As for the disorderly conduct charge, we are of the opinion that the maximum fine imposed was also supported by the evidence. Officer Rappaport testified that in response to a command from Deputy Rocheford given to the crowd over a loud speaker asking them to disperse, he heard the defendant tell the crowd: “Don’t go. Kill the pigs. Hell no, we won’t go.” The crowd refused to disperse. This evidence showed that the defendant was therefore leading the crowd in defying the police and later threw rocks at the advancing police line. These aggravating factors adequately support imposition of the maximum fine for disorderly conduct. The judgments are affirmed..

Judgments affirmed.

McCORMICK, P. J. and BURKE, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Jackson, Defendant-Appellant.
    Gen. No. 53,648.
    First District, Second Division.
    September 29, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Arthur Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The defendant, Frank Jackson, was indicted for murder. In a jury trial, he was convicted of voluntary manslaughter and judgment was entered. After the defendant’s written motion for a new trial was denied and a hearing in aggravation and mitigation was held, he was sentenced to fourteen to twenty years in the State Penitentiary. In this appeal the defendant contends that: (1) the trial court erred in overruling his motion to suppress his oral confessions; and (2) the minimum sentence is excessive and should be reduced.

Prior to trial, the defendant presented a written motion to suppress his oral confessions, given to certain police officers, on the grounds that admission of such evidence would “violate the due process clause of the Fourteenth Amendment of the United States Constitution and Article 2, Section 2 of the Constitution of the State of Illinois.”

Testifying for the State at the hearing, before the court, on the motion to suppress were Sergeant Patrick Ward and Detectives Richard Sandberg and James Griffin, all of the Chicago Police Department. Testifying for the defendant was defendant himself, Louise Garner, Glenda Matute and Detective John Loftus of the Chicago Police Department.

Sergeant Ward stated that on June 28, 1967, at approximately 8:30 a. m., he was on duty at the bonding desk located on the first floor of Central Police Headquarters in Chicago when the defendant came in alone and told him: “I want to give myself up; I killed my girl friend on the West side.” The defendant also stated that he was no longer armed. Ward searched him, found no weapon and directed him to sit in a chair behind the bonding desk. The accused was never handcuffed.

Continuing, Ward testified that the defendant then told him he had shot the deceased in his car while they were parked in an alley. He left her in the car and discarded the weapon in a garbage can located near his parked vehicle. This information was then verified by the Police Department. Ward stated that he then placed the defendant under arrest and gave him the Miranda warnings; namely, he had the right to remain silent; anything he said could be used against him in court; he had the right to have an attorney present during any questioning; and if he had no funds to hire an attorney, the State would obtain one for him. The defendant replied that he understood these rights.

In conclusion, Ward stated that at approximately 9 a. m. on June 28,1967, Homicide/Sex Detectives Sandberg and Griffin arrived at Central Police Headquarters, and he told them that he had given the Miranda warnings to the defendant. The detectives then took the defendant from Central Police Headquarters. Ward testified that he never struck the defendant and neither he nor anyone else in his presence ever made any promises or threats.

On cross-examination, Ward denied that when the defendant approached him he said that he merely wanted to report an accident nor that he ever said later that he wanted a lawyer and would say nothing further until he talked to an attorney.

Detective Sandberg testified that when he and his partner, Detective Griffin, met Sergeant Ward at approximately 9 a. m. on June 28, 1967, at Central Police Headquarters, they also met the accused who told them in response to their questions, that Sergeant Ward had explained his constitutional rights to him. Sandberg stated that he and Griffin then took the defendant out to their unmarked police vehicle, never handcuffed him, and drove to the homicide scene arriving there in about fifteen minutes. Continuing, Sandberg testified that, on the way to the homicide scene, he too gave the four Miranda warnings to the defendant who replied that he understood them. The accused never asked for an attorney but rather, on the way to the West side, told Sand-berg what had happened in his car earlier that morning. Sandberg was told this only after he had advised the defendant of his constitutional rights.

After arriving at the homicide scene and remaining there for about fifteen minutes, the defendant stated that he wanted to be taken to St. Leonard’s House in Chicago, which is a halfway house operated by the Episcopal Church for parolees. The accused wanted to go there to pick up his bankbook, his money, and tell the people he was in trouble.

Sandberg stated that at St. Leonard’s House, Detective Griffin remained in the police car while he and the defendant met a woman behind the desk on the second floor. Sandberg testified that he heard the accused tell her that he wanted his bankbook and money as: “I’m in trouble; I killed Sally.” From St. Leonard’s House, they went to Area 4 Homicide. There in a room on the second floor, Sandberg testified that Griffin again gave the defendant the Miranda warnings and the accused responded that he understood them. Thereafter, the accused gave them a detailed oral statement of the events preceding the homicide and when he was asked if he wanted to give a written statement to an assistant State’s Attorney in the presence of a court reporter, the defendant responded by saying he would first like to speak with an Episcopal minister from St. Leonard’s House. The police located Reverend Robert Taylor who arrived at the police station in about twenty minutes and spoke with the accused in private. The defendant thereafter refused to say anything further until he had talked to an attorney.

The testimony of Detective Griffin was essentially a corroboration of Sandberg’s testimony.

For the defense, the defendant testified that he was fifty-three years of age at time of trial and when he spoke to Sergeant Ward on June 28, 1967, he told him that he wanted to report an accident as his girl friend was in his car and she had been shot. When Ward asked him who had shot her, the defendant said he replied that he would like to talk to an attorney before he made any further statements. Ward then told him he was under arrest, searched him and asked if he had a record. The accused said he was on parole at the present time.

Continuing, the defendant stated that neither Ward nor Sandberg nor Griffin ever gave him the Miranda warnings, and he was taken to St. Leonard’s House after telling Sandberg and Griffin that he wanted to go there so he could obtain his bankbook and thereafter hire an attorney to defend him. While at St. Leonard’s House he had a conversation with Louise Garner and Glenda Matute in the presence of both Sandberg and Griffin, but the defendant denied that he ever told either or both of the women that he had shot and killed his girl friend, Sally Strickland.

The defendant went on to testify that at Area 4 Homicide the two detectives asked him to tell them what happened that morning, but he allegedly said that he wanted to talk to a lawyer first. The detectives responded that he could speak to an attorney after he gave them his oral statement. They called the Reverend Robert Taylor only after they had completed questioning him.

On cross-examination, the defendant stated that he had taken a bus to Central Police Headquarters and had not driven Sally Strickland to a hospital.

Louise Gamer testified that she was office manager of St. Leonard’s House on June 28, 1967, when she saw the defendant enter with two police officers. She was unable to say that Detectives Sandberg and Griffin were the two police officers who accompanied the defendant on the morning of June 28,1967, but she did say that she asked the accused, in the presence of the police, what was the trouble and he replied: “There’s some difficulty; I have come here to get my bankbook.” When she asked the defendant the nature of this difficulty, he did not reply. She then suggested that he and the two police officers go up to the second floor and obtain his bankbook. She did not see them again.

Glenda Matute testified that she was a secretary at St. Leonard’s House on June 28, 1967, when she saw the defendant accompanied by two police officers. She was unable, however, to identify Detectives Sandberg and Griffin as the two policemen who accompanied the accused on the date in question. She did say that she met these three people on the second floor of St. Leonard’s House and when she asked the defendant what was the matter after he had asked for his bankbook, he replied: “I am in a little trouble.” When she asked the policemen what was the trouble, one of them replied that the defendant had shot a woman. In conclusion, she stated that she did not recall the accused saying: “I shot and killed Sally Strickland.” He did not tell her why he wanted his bankbook.

Detective John Loftus testified for the defense and stated that he was a homicide detective assigned to Area 4 and he saw the defendant for about two minutes near the noon hour on June 28, 1967. Loftus denied being present when the defendant allegedly gave an oral statement to Detectives Sandberg and Griffin in the Area 4 police station. He did admit giving contrary testimany at the Coroner’s Inquest, however, but said that he was merely testifying from a report made by Detectives Sandberg and Griffin who could not be present at the Inquest because they were out of town on an extradition matter. Loftus was impeached, however, when he admitted that at the Inquest he did not disclose that he was testifying from a report prepared by someone other than himself, but rather did testify at the Inquest that the accused gave his oral statement when he was sitting across the table from him; that he did not detect the odor of alcoholic beverages on the defendant’s breath at that time; and that the answers given by the accused were coherent and distinct. Loftus also admitted that he could have sought a continuance of the Coroner’s Inquest as he had done in the past, but he did not do so in this case.

At the conclusion of this testimony, the defense rested. The court then ruled and suppressed the oral statement made by the defendant at Area 4 Homicide but refused to suppress the oral statement made at Central Police Headquarters to Sergeant Ward; the oral statement made to Detectives Sandberg and Griffin on the way to the homicide scene; and the oral statement made to a woman at St. Leonard’s House. These three oral statements were ruled admissible in evidence.

At the trial of the case before the jury, the State presented seven witnesses: James Talbert, the brother of the decedent; Sergeant Ward; Detectives Sandberg and Griffin; Patrolman Perry Miller; John Sadunas, a firearms examiner employed by the Chicago Police Department; and William Steurner, a pathologist. The defense presented five witnesses: the defendant and four character witnesses including Louise Garner, Glenda Matute, Reverend Robert Taylor and the defendant’s foreman, Charles Andrews.

James Talbert, the brother of the decedent, testified that he saw his sister on June 27, 1967. She was fifty years of age and in good health. When he next saw her, she was dead.

Sergeant Ward repeated for the jury the testimony that he had given earlier to the court at the hearing on the motion to suppress. Essentially, he stated that the defendant came up to him in Central Police Headquarters and told him that he wanted to give himself up as he had shot and killed his girl friend. After the accused had told him that the shooting had taken place in his car in an alley at a specific location on the West side of Chicago and that he had discarded the weapon in a garbage can about twenty-five yards from the car, Ward had this information verified. After receiving confirmation, he then contacted Area 4 Homicide, advised the defendant that he was under arrest, and gave him the four Miranda warnings. The defendant replied that he understood them. In about fifteen minutes, the defendant left Central Police Headquarters with Detectives Sandberg and Griffin.

Detective Sandberg testified that after he and his partner, Detective Griffin, picked up the defendant at Central Police Headquarters and took him to their unmarked police car, he sat in the back seat with the accused, while Griffin drove the police car. As they pulled away, Sandberg testified that he gave the four Miranda warnings to the defendant, who replied that he understood them. Sandberg said he then asked the accused if he wanted to tell them what had happened that morning and received an affirmative reply.

Sandberg testified that the defendant told him, in the police car on the way to the homicide scene, that the deceased had called him at his apartment early in the morning of June 28, 1967, and wanted to see him; that he picked her up in his car and they went to a hotel together where they registered and had sexual relations; that she then asked him for $15. They returned to his apartment while she remained in his car. When he went to his apartment, he took $20 and his revolver. He returned to her and drove the car to a parking lot about one block from his apartment and was parked there when Sally Strickland demanded more than $15, or she threatened to tell his parole officer about some parole violations. When she put her arm around him, she felt his revolver; and that he pulled it out, pointed it at her head, and pulled the trigger three times. It fired twice.

Continuing, Sandberg testified that they reached the homicide scene at this point in the defendant’s oral statement. The accused pointed out his vehicle, a blue 1962 Chevrolet, which was parked in an alley near a parking lot. Sandberg then met Patrolman Miller who gave him an unloaded revolver and two shells for it. Sandberg identified People’s Exhibit 1 as the weapon he had received from Miller.

Two expended cartridges were marked as People’s Exhibit 2; a loaded cartridge with the initials “J. G.” scratched on its head was marked Exhibit 3; and another “live” cartridge, with no distinctive markings on it, was marked Exhibit 4. Sandberg identified these items as having been given to him by Patrolman Miller at the homicide scene. His partner, James Griffin, had scratched his initials on Exhibit 3 and had done so in Sandberg’s presence. Sandberg testified that when he showed the weapon to the accused, the defendant admitted that he had used it in shooting the decedent.

Continuing, Sandberg testified that he, his partner, and the defendant then left the homicide scene and went to St. Leonard’s House at the request of the accused, where they spoke to one woman on the first floor who directed them to the second floor. Once there, another woman gave the defendant his property, asked him what was wrong and the accused replied that he had shot Sally.

In conclusion, Sandberg stated that after taking the defendant to Area 4 Homicide, he went on to the County Morgue and received a blue sealed envelope from Dr. Steumer which contained one pellet from the body of the decedent. He took this envelope to the Crime Laboratory after being told by Dr. Steurner that the second bullet was lodged too deeply in the sinuses to be able to remove it without mutilating the body.

Detective Griffin corroborated much of the testimony of his partner, Detective Sandberg, and also stated to the jury that the defendant had told him that after shooting his victim and discarding the weapon, he left his car in the alley and took a bus to Central Police Headquarters. Griffin also identified the four exhibits for the People and stated that he took the murder weapon to the Crime Laboratory.

Patrolman Perry Miller testified that he was ordered to a specific alley on the West side of Chicago and there found a blue Chevrolet with a woman slumped over in the middle of the front seat. She had two bullet holes in her left temple and was leaning over toward the driver’s side of the car with her head lying on top of the front seat. The doors and windows of the car were closed and there was nothing in her hands.

Miller went on to state that he found a gun in a garbage can in the alley approximately twenty yards from the vehicle. He identified People’s Exhibit 1 as this weapon and said he delivered it to Detective Sandberg in the alley. He also identified People’s Exhibit 2 as the two spent cartridges that were inside the weapon; Exhibit 3 as the shell in the gun that had been hit by the firing pin but had not gone off; and Exhibit 4 as another cartridge which was also in the gun.

John Sadunas, a firearms examiner employed by the Chicago Police Department, testified that as part of his duties he uses a microscope to make comparisons of fired bullets. He examined People’s Exhibit 1 and said it was the weapon he had examined in the Crime Laboratory on June 28, 1967. He fired the weapon and compared, under a microscope, the expended bullet with the one received from the Coroner’s Office in a blue sealed envelope. In his opinion, the bullets were fired from People’s Exhibit 1.

William Steurner, a physician who on June 28, 1967, was a pathologist with the Cook County Coroner’s office, testified that he conducted an external examination of Sally Strickland on that date and noted two bullet wounds on the left side of her head. Based upon the nature of the wounds and the powder burns, it was his opinion that the weapon was fired within three f'eet of the deceased. One bullet was recovered from the decedent’s brain and based upon his observation, it was his opinion that the two bullets were fired from left to right and in a horizontal path. It was also his opinion that these two bullet wounds were the cause of death. In conelusion, he testified that the one bullet he removed from the decedent was placed in a blue envelope and was sealed and labeled. He then gave it to an officer from the Chicago Police Department.

The State recalled James Talbert, the brother of the deceased, who testified that she was right-handed.

For the defense, the defendant testified and admitted that he had twice been convicted of burglary and larceny and in 1948, he had been convicted in Chicago of two counts of rape and two counts of armed robbery, thereafter serving over eighteen years in the State Penitentiary for these crimes. He was paroled in July, 1966, through the efforts of St. Leonard’s House and he went to live there. Thereafter, he worked to support himself and also met the decedent. He began to see her every night, she asked him for money, and he gave her at least $55 a week.

Regarding what happened in the car that morning, the defendant’s testimony, if believed, indicated that the homicide was done in self-defense. He testified that after giving the deceased $15 in his car, she noticed that he had more in his possession and she asked for more. He refused, but she tore the pocket of his trousers in an attempt to get more money. He put his money in his other pants pocket and started his car to take her home. After going down the alley for about twenty yards, the decedent produced a pistol and pointed it at him. People’s Exhibit 1 looked like this weapon.

With this weapon pointing at the accused, the deceased allegedly told him that she would kill him if he did not give her more money and nothing would be done about his death since he was on parole. Continuing, the accused told the jury that he then grabbed her arm or hand with his hand and heard a click. They started to tussle and he heard the weapon discharge, but he could not tell how many times it went off. The deceased became still and he saw blood running down her face. After driving his car a short distance in the alley, he stopped the car, got out, and saw a pistol laying on the seat. He picked it up and wanted to take it with him to the police as he was going to give himself up, but then decided not to take the weapon with him since he was on parole and should not have any weapons. He discarded the gun in a garbage can and took two buses to Central Police Headquarters.

Continuing, the defendant testified that he told Sergeant Ward that he wanted to report an accident, that his girl friend was in his car and had been shot. When Ward asked him who shot her, the defendant replied that he wanted to talk to a lawyer, whereupon Ward allegedly placed him under arrest. In conclusion, the accused stated that he was right-handed and that he made no oral confession or statement to Sergeant Ward or to Detectives Sandberg and Griffin on the way to the homicide scene or to any one at St. Leonard’s House. He also denied that any police officer ever gave him the Miranda warnings and that he ever purchased or obtained a gun while on parole.

Charles Andrews, the defendant’s foreman, stated that the accused worked for him for about a year; that he was a reliable and sober employee who worked every day; and that he had a reputation in the community of being a peaceful and very quiet man.

Louise Garner and Glenda Matute both denied that the accused told both of them together or individually at St. Leonard’s House that he had shot and killed Sally Strickland or any other woman. Louise Garner also testified that the defendant had a reputation in the community of being a peaceful man.

Reverend Robert Taylor, an Episcopal Minister and Executive Director of St. Leonard’s House, testified that he met the defendant in prison after the accused had written to him requesting assistance when he appeared ■before the Parole Board. After gaining his parole, the defendant lived at St. Leonard’s House for three months and then obtained his own apartment but continued to take his meals at St. Leonard’s. In conclusion, this witness also testified that the accused enjoyed a reputation in the community of being truthful, honest and peaceable.

Initially, the defendant relies upon Miranda v. Arizona, 384 US 436, and urges that the trial court erred in denying his motion to suppress the three oral statements admitted into evidence against him. These three statements are respectively: (1) the oral statement he made to Sergeant Ward at Central Police Headquarters; (2) the oral statement he made to Detectives Sandberg and Griffin in the police vehicle on the way to the homicide scene; and (3) the oral statement he made to a woman at St. Leonard’s House. This contention assumes that the oral statements given to Sergeant Ward and the woman came within the ambit of the Miranda decision. It is our opinion that the ruling in the Miranda case does not apply to these two oral statements because neither one was the result of custodial interrogation by the police. The statement given to Ward was purely volunteered, and the one given to the woman was not the result of any custodial interrogation by the police. Neither was it shown that the police and the woman were acting in concert against the defendant. From this record, just the opposite conclusion is apparent.

In Miranda, the court defined custodial interrogation to mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 US 436 at 444. Furthermore, the court expressly stated that its decision did not require that police officers stop and give the Miranda warnings to a person who enters a police station and states that he wishes to confess to a crime. Volunteered statements of any kind are not barred by the Fifth Amendment’s privilege against self-incrimination.

In the case at bar, the oral statements given to Sergeant Ward and the women at St. Leonard’s House were volunteered by the accused and were not the result of custodial interrogation. Hence, the holding in Miranda v. Arizona is not applicable to them. See also: People v. Savage, 102 Ill App2d 477, 242 NE2d 446 (1968) and People v. Lopez, 93 Ill App2d 426, 235 NE2d 652 (1968).

The most incriminating statement given by the defendant was that uttered in the police vehicle on the way to the homicide scene. The holding in Miranda is applicable here since the accused had been arrested and was being interrogated by the police without the presence of an attorney. The prosecution thus had a heavy burden to demonstrate to the trial court that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. Arizona, 384 US 436, at page 475. The recent case of People v. Morehead, 45 Ill2d 326, 259 NE2d 8, states at 331 that “such warnings were given at the outset of interrogation as Miranda requires it was not necessary that they be repeated every time and on every occasion anyone might subsequently talk with the defendant.”

In our opinion, the evidence presented by the prosecution at the hearing on the defendant’s motion to suppress amply indicated that he had been given the Miranda warnings on at least two separate occasions by two different police officers. He said he understood them and thereafter he indicated that he wanted to tell the police what happened on the morning in question. The accused stated that he never received the warnings from any police officer. In our opinion, the resolution of this conflict in the evidence was for the trial court to decide as the trier of fact at this voluntariness hearing. We are convinced that his decision is not opposed to the manifest weight of the evidence. The three oral statements were properly admitted into evidence.

The defendant also urges that the minimum sentence of fourteen years imposed in this case is excessive and should be reduced. We do not agree with this contention. The prosecution’s evidence, believed by the jury, indicated that he kept a weapon in his room. The hearing in aggravation and mitigation indicates that the defendant has a past record of at least five felony convictions. A minimum sentence of fourteen years is within the statutory guidelines (Ill Rev Stats (1965), c 38, § 9-2 (c)) and was proper punishment for the accused. We will not disturb the sentence. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965).

The defendant has filed three pro se briefs in this court. We have examined them and the record of proceedings and conclude that no error was committed by the trial court. The defendant was proved guilty beyond a reasonable doubt and the sentence is proper. The judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. JUSTICE DRUCKER STAMOS, P. J.,

text:
    Pamela Householder, a Minor, by Her Father and Next Friend, Richard Householder, Plaintiff-Appellant, v. The Prudential Insurance Company, Defendant-Appellee.
    Gen. No. 53,695.
    First District, Fourth Division.
    September 23, 1970.

      STAMOS, P. J., dissenting.
    Irving Tischer, of Chicago, for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Harold W. Huff and Howard T. Brinton, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from a directed verdict entered in favor of defendant, The Prudential Insurance Company, at the close of plaintiff’s evidence.

Plaintiff’s second amended complaint contained two counts. Count I alleged that defendant, The Prudential Insurance Company, as owner and operator of an escalator on its premises “so carelessly and negligently operated its escalator so as to cause it to shake, jerk, make noises, and move in a ‘bouncing’ fashion, thereby causing the plaintiff’s body to come into contact with the escalator” and that Prudential “was guilty of negligence in that it caused and allowed a part of said escalator to be in a sharp and dangerous condition so that when said sharp portion of the escalator came in contact with the leg of the plaintiff, it caused a severe and permanent injury.” Count II alleged that the Westinghouse Electric Corporation was guilty of carelessness and negligence in the design, manufacture, installation and maintenance of the escalator in the same manner as above set forth.

At trial there was testimony that on August 2, 1966, the plaintiff, who was two and one-half years old, visited the Prudential Building accompanied by her mother, father, twin brother, grandparents, and two aunts. Upon arrival at the building the family took the elevators to the fortieth floor. From there they took two banks of escalators to the top floor. They did not pay the admission fee to go out on the observation platform since they decided it would not be worthwhile. However, they did remain on the top floor for ten to fifteen minutes looking around and purchasing some souvenirs and postcards.

As the family started to leave, plaintiff and her mother proceeded first, followed by the grandparents and aunts and then Mr. Householder and plaintiff’s twin brother. Mrs. Householder helped the plaintiff on the first escalator and together they rode down. At the bottom of the first down-escalator Mrs. Householder picked up the plaintiff by putting her hands on the calves of plaintiff’s legs and lifting her up. Plaintiff and Mrs. Householder then mounted the second down-escalator. Plaintiff held Mrs. Householder’s right hand and placed her other hand on the handrail. Just a moment before they were to step off, Mrs. Householder heard a “slight thump” and plaintiff’s whimper. Mrs. Householder did not know where the sound came from. At about the same time she noticed a “little extra movement in the escalator, maybe a little jerk or something along with the thump .... It was just ever so slightly.”

After reaching the bottom Mrs. Householder again reached down with her hands on plaintiff’s legs to pick her up. She noticed there was a wetness on plaintiff’s right leg and as she looked down she saw a cut. At no time while on the second down-escalator did plaintiff crouch, fall, sit down, or tug at her mother’s hand. After the “slight thump” plaintiff made no movement which Mrs. Householder observed or felt; she continued to stand erect down the second bank of escalators; and she did not start crying until Mrs. Householder touched her leg. Mrs. Householder did not observe plaintiff’s leg before plaintiff got on the escalator while she was upstairs.

Plaintiff was taken to the hospital where approximately forty sutures were required to close the wound. The scar on the outside of plaintiff’s right leg measures approximately four and one-half inches in length and one-half inch in width, although the width varies.

At the close of plaintiff’s evidence both Prudential and Westinghouse moved for directed verdicts. After argument on the motions the trial court granted directed verdicts for both defendants. Plaintiff appeals only from the directed verdict granted in favor of Prudential.

Opinion

Plaintiff contends that she presented sufficient evidence of defendant’s negligence to submit the case to the jury. She bases her contention on the testimony of Mrs. Householder, which she claims shows that her injury must have occurred on the escalator. Defendant argues that there was no showing of negligence on its part which caused “plaintiff’s body to come into contact with the escalator.”

In her second amended complaint plaintiff specifically alleged that a sharp portion of defendant’s escalator came in contact with her leg causing a severe and permanent injury. However, at trial plaintiff presented no evidence which would identify “said sharp portion of the escalator,” and she failed to proffer any evidence that a sharp portion of defendant’s escalator actually came in contact with her leg causing the injury. Therefore, we must conclude that based on plaintiff’s failure to introduce any evidence of “said sharp portion” there was nothing to submit to the jury on this allegation of defendant’s negligence.

Plaintiff’s second amended complaint also charged that the defendant “so carelessly and negligently operated its escalator so as to cause it to shake, jerk, make noises, and move in a ‘bouncing’ fashion, thereby causing the plaintiff’s body to come into contact with the escalator.” Plaintiff had the burden of proving these allegations. In Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159, 159 NE2d 520, the court states:

It was the plaintiffs’ overall burden to establish the general or specific negligence of the defendant by a preponderance of the evidence. It was not enough for the plaintiffs to prove they were injured or that they were injured because of the negligence of someone. It was incumbent upon them to prove that the negligence of the defendant caused their injuries.

Mrs. Householder testified that just a moment before plaintiff and she were to step off of the second down-escalator she heard a “slight thump” and plaintiff’s whimper. At about the same time she also noticed “a little extra movement in the escalator, maybe a little jerk or something along with the thump. ... It was ever so slightly.”

We believe that this testimony fails to prove the allegations set forth in plaintiff’s second amended complaint. Mrs. Householder did not testify that the escalator shook or moved in a “bouncing fashion” nor did she know where the “slight thump” noise came from. Also, the-“little extra movement . . . maybe a little jerk” was ever so slight. There was no explanation in evidence, medical or otherwise, as to how so slight a movement could possibly have caused an injury of the kind sustained by plaintiff.

Furthermore, there was no evidence to support plaintiff’s claim that the alleged movement caused plaintiff’s body to come into contact with the escalator. As the plaintiff and Mrs. Householder started down the second escalator plaintiff had her right hand on the railing of the escalator, with her left hand holding her mother’s right hand. As they continued down the escalator at no time did the plaintiff crouch, fall, sit down, tug, or let go of her mother’s hand. Plaintiff was right beside her mother until Mrs. Householder reached down to take her off. Plaintiff stood erect down the second bank of escalators and made no movement that Mrs. Householder observed or felt. In fact, plaintiff did not start to cry until Mrs. Householder touched her leg.

We would also point out that Mr. Householder testified that his in-laws were behind his wife, but he could not observe them since he was still on the first down-escalator. He heard his wife scream as he was alighting therefrom and rode down the second escalator. The escalator was still functioning and he rode down as he would normally. He did not observe anything defective or wrong with the escalators. From his discussions with his in-laws and everyone else who had been there at the time of the alleged occurrence, no one, except his wife, indicated that they had observed or noticed anything unusual about the escalator or its operation.

In Tiffin v. Great A. & P. Tea Co., 18 Ill2d 48, 60, 162 NE2d 406, the court, in discussing the question of liability, states:

Liability may not be based on imagination, speculation, or mere conjecture, and the question of its existence should be submitted for jury determination only where there is some direct evidence supporting each material allegation of the complaint or some circumstantial evidence from which inferences of such facts clearly preponderate.

See also Shramek v. General Motors Corp., Chevrolet Motor Division, 69 Ill App2d 72, 216 NE2d 244.

In the instant case, in view of the testimony and the photographic exhibits of the escalator, which by themselves show no defect, we must agree with the trial judge’s statement that, “There is no showing by the testimony presented in plaintiff’s case that in fact the escalator caused the injury in question to the plaintiff here.” Therefore, we find that the trial court properly directed a verdict in favor of the defendant.

Plaintiff also argues that there was sufficient evidence to submit the case to the jury based on the doctrine of res ipsa loquitur. One of the requirements which the plaintiff must prove before the res ipsa doctrine may be applied is that the instrumentality in question caused the injury. Shramek v. General Motors Corp., supra. However, as heretofore determined, there was no showing by the plaintiff that the escalator in fact caused her injury. Therefore, this is not a case which permits the application of the res ipsa doctrine.

Plaintiff next contends that the trial court erred in refusing to accept an offer of proof concerning a subsequent inspection of defendant’s escalator by her father, Richard Householder. The offer of proof was “that he [Richard Householder] went back to the escalator at a subsequent date and at that time examined this escalator most closely and examined the leading edges of these stairs and found that they were sharp and that they were all about in the same condition.”

The questioning of Mr. Householder on cross-examination by defendants’ counsel concerned his inspection of the escalator on the day of the accident shortly after he returned from taking plaintiff to the hospital. Plaintiff’s offer of proof, however, concerned Mr. Householder’s inspection of the escalator at a “subsequent date.” It did not give a specific date nor did it show that the condition of the stairs at the time of the alleged occurrence had remained unchanged in the interim. We find no error in the court’s refusal to admit the offer of proof. LaSalle Nat. Bank v. Feldman, 78 Ill App2d 363, 373, 223 NE2d 180, and Schwartz v. Peoples Gas Light & Coke Co., 35 Ill App2d 25, 181 NE2d 826.

The judgment is affirmed.

Affirmed.

ENGLISH, J., concurs.

STAMOS, P. J.,

dissents:

The majority opinion concludes that plaintiff failed to prove causation thereby precluding the application of the doctrine of res ipsa loquitur. I cannot agree that plaintiff has failed to prove the matter of causation.

Mrs. Householder related in her testimony that she assisted plaintiff in embarking upon and disembarking from both escalators in the same manner, by placing one hand under plaintiff’s calves. Neither in assisting plaintiff in embarkation of either escalator nor in disembarkation of the first escalator did Mrs. Householder notice any injury to plaintiff’s leg. However, after disembarking the second escalator, Mrs. Householder immediately perceived plaintiff’s injury. Therefore, the evidence substantiates plaintiff’s claim of being injured during the second escalator ride.

The remaining issue then is whether the escalator itself or some other extrinsic force acted upon plaintiff to produce the injury. Mrs. Householder’s only observation as to plaintiff’s reactions during the second escalator ride was that plaintiff whimpered. However, Mrs. Householder did note that plaintiff’s whimper, the erratic escalator movement and the thumping noise occurred simultaneously. It was shortly after these simultaneous happenings that Mrs. Householder discovered the injury upon again touching plaintiff’s calf at the bottom of the escalator.

In view of these facts, I feel that the plaintiff has shown a causal relationship between the escalator’s movements and her inj ury.

The majority places emphasis upon the fact that Mrs. Householder testified that the “jerk” of the escalator was “ever so slight.” However, the operators of escalators must anticipate that their devices will be utilized by the infirmed, aged, handicapped and the very young, as well as the able bodied. The intensity of the “jerk” or abrupt movement of an escalator may be of little or no consequence or alarm to most riders, but in the case at bar a two and one-half year old child is the plaintiff.

The severity of the injury she sustained, requiring forty sutures, and the photograph of her injured leg reflect to a great measure what her mother described as a “little extra movement” and “jerk” that was “ever so slight.”

The majority also emphasizes the fact that Mrs. Householder did not testify that the escalator moved in a “bouncy fashion” as alleged in the complaint. However, I fail to appreciate the merit in distinguishing a “bounce” from a “jerk” in resolution of the issues presented on appeal.

We also note that the majority states that the photographic exhibits of the escalator show no defect. However, the majority held, and I believe properly so, that the plaintiff’s offer of proof as to Mr. Householder’s inspection of the escalator at a subsequent date was properly refused. The photographic exhibits of the escalator were allegedly taken on the same date as Mr. Householder’s subsequent inspéction. Therefore, since the offer of proof was inadmissible for remoteness so is the use of the photographs to depict a defect or lack thereof. The photographic exhibits as admitted could be used for purposes of identification only.

Therefore, I feel that plaintiff presented sufficient evidence to apply the doctrine of res ipsa loquitur and believe that the trial court erred in directing a verdict for defendant. The judgment should be reversed and remanded for new trial.

       It seems that the examination referred to in the offer of proof occurred on June 9, 1967, when pictures of the escalators were taken. This was ten months after the accident.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eligha Williams and Alford Garner, Defendants-Appellants.
    Gen. Nos. 54,090, 54,093. (Consolidated.)
    First District, First Division.
    September 21, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Defendants, Eligha Williams and Alford Garner, were jointly indicted for the offense of robbery. Both defendants were represented by the Public Defender. On September 11, 1967, both pleaded guilty. On the recommendation of the State they were admitted to probation for a term of three years. Subsequently, and in separate hearings, the same trial judge found that both defendants had violated the conditions of probation, and he terminated the probation of both defendants. Each was sentenced to the penitentiary for a term of five to eight years. Defendants’ separate appeals were consolidated here for disposition.

On appeal defendant Williams contends that (1) he was denied due process in the revocation hearing when he was sentenced, because he was not allowed to present evidence or mitigating circumstances in his behalf; (2) he was denied effective representation of counsel when the trial court refused to grant defendant Williams a continuance to prepare his case for hearing on the rule to show cause why his probation should not be terminated; and (3) the sentence imposed was excessive. On appeal, defendant Garner contends only that his sentence was excessive.

The record shows that when defendants pleaded guilty to the offense of robbery of Joseph Gillen, the court held an extended hearing in aggravation and mitigation for both defendants. Defendant Garner, aged 37, had a lengthy record for vagrancy, drunkenness and damage to property. There were no felony convictions. Defendant Williams, aged 20, also had a record for the same type of offenses as Garner, and no felony convictions. After a consideration of the facts presented, and upon the recommendation of the State, both defendants were admitted to probation. At that time, the trial judge informed the defendants that he was giving them a chance to set themselves straight, and if they returned before him for a violation of their probation terms, he would impose sentences on them in conformity with the statutory provisions dealing with robbery.

As to defendant Garner, the record shows that on November 4,1968, at the hearing of a rule to show cause why his probation should not be terminated and sentence imposed upon his original conviction, evidence was presented to show that in April 1968 Garner had been convicted of criminal damage to property and sentenced to serve one year at the State Farm in Vandalia. The court, after reviewing the original findings on the robbery charge, sentenced defendant Garner on that charge to a term of five to eight years in the state penitentiary.

As to defendant Williams, the record shows that a rule to show cause why Williams’ probation should not be terminated was issued on December 2, 1968. The Public Defender entered his appearance on behalf of defendant Williams on December 3, 1968. The matter was assigned to the original trial judge and continued to December 11, 1968. After a number of continuances, the matter came up for hearing on January 31, 1969. At that time, counsel for defendant Williams asked for another continuance, stating that this was the first time he had a chance to talk with defendant, and he wanted to check over allegations as to the defendant leaving the state without notifying his probation officer, entering the Armed Services and subsequently going AWOL from that service. It was then shown by the State that on October 21, 1968, defendant Williams was convicted of theft and sentenced to serve 60 days in the House of Correction. It further appeared that defendant Williams served the 60 days and had not appealed. The trial court denied a continuance and proceeded with the hearing on the rule to show cause and terminated the probation of defendant Williams. Also, the court denied the request of defendant’s counsel to present mitigation evidence on behalf of Williams prior to sentencing. The court then sentenced defendant on the original conviction of robbery to a term of five to eight years in the state penitentiary.

Considered first is the contention of defendant Williams that he was denied procedural due process of law when the trial court sentenced him for violation of probation without allowing him to present evidence in his behalf. On this point the record shows the following:

THE COURT: “Five to eight years is the sentence.”
DEFENSE COUNSEL: “Judge, we respectfully request, we haven’t had a chance at this point to present any mitigation on behalf of the defendant. We initially came up to Your Honor on motion for continuance to get the information.”
THE COURT: “Counsel, you are aware of the fact the law provides that a conviction subsequent to a probation order is sufficient to revoke his probation.”
DEFENSE COUNSEL: “Your Honor, we also feel — ”
THE COURT: “Especially a conviction involving the same kind of conduct for which he was originally sentenced.”
DEFENSE COUNSEL: “We feel, Your Honor, that we still should have an opportunity to present some type of mitigation on behalf of the defendant before Your Honor sentences the man.”

Defendant Williams charges that “the so-called hearing which was conducted was in reality not a hearing at all. Procedural due process requires that any defendant be given an opportunity to present evidence in his own behalf and rebut the prosecution’s evidence. Although the defendant, through his attorney, represented to the court that he was not prepared to proceed and had not had an opportunity to gather evidence favorable for the defendant, the trial court denied this request and summarily revoked the defendant’s probation. The defendant was stripped of all his rights and privileges and denied the opportunity to defend himself.” In support of his contention defendant cites Ill Rev Stats, c 38, § 117-3(b), which states:

“When a warrant is issued, the court shall within a reasonable time after the apprehension of the probationer conduct a hearing on the issue of the probation violation. The probationer may be admitted to bail pending the hearing. At the hearing the State shall have the burden of proving the violation.”

Defendant further argues that in a violation of probation hearing, it is required that a defendant be granted a full hearing on the issue, and that he be given notice of the charges against him and the opportunity to appear and defend himself with the aid of counsel. (Mempa v. Rhay, 389 US 128 (1967); Gideon v. Wainwright, 372 US 335 (1963).) Defendant also cites People v. Price, 24 Ill App2d 364, 164 NE2d 528 (1960), where the court said (p 376):

“It has frequently been said that notice to a defendant and an opportunity to be heard are fundamental requirements and co-existent essentials of the constitutional guaranty of due process of law ....
“. . . a defendant in every case where probation has been granted is entitled to a conscientious judicial determination according to accepted and well recognized procedural methods upon the question whether the conditions imposed upon the defendant when he was admitted to probation have been violated. Such a defendant is entitled to know the nature of the charge in advance of any hearing wherein he is alleged to have breached the order granting him probation and must be given an opportunity to answer any charge that has been preferred against him.”

The State argues that there was no reason to grant the continuance asked for by defendant’s counsel, and “the office of the Public Defender had the cause for nearly two months and the only question considered seriously by the judge in arriving at the decision that probation should be revoked was the fact of the subsequent theft conviction. The defendant had been found guilty and had not appealed. Certainly the mere assertion of the defendant at the hearing that he did not commit the theft was not sufficient to call for a delay in the hearing in the face of a conviction and completed sentence on the charge.”

As the State asserts, the termination of probation is a question resting within the sound discretion of the trial court. (People v. Tomaszek, 54 Ill App2d 254, 204 NE2d 30 (1964).) The standard of proof at a hearing to determine whether probation should be terminated is one of the preponderance of the evidence, not the fixed standard of reasonable doubt applied to a finding of guilty in an actual criminal trial. People v. Smith, 105 Ill App2d 14, 18, 245 NE2d 13 (1969).

The granting of a continuance is also a matter within the sound discretion of the trial court, and this discretion will not be interfered with on review unless it has been clearly abused. (People v. Parks, 110 Ill App2d 455, 249 NE2d 720 (1969).) The termination of the probation of Williams was based on the subsequent theft conviction alone, and the investigation of other allegations in the rule to show cause was not necessary. The denial of a continuance to defendant in no way cut him off from presenting other proof at the hearing.

When a defendant is made aware of the charges out of which the rule to show cause for termination of probation arises and where the proof shows that the defendant had been convicted of a subsequent offense, the State has fulfilled its burden of proof. (Ill Rev Stats, c 38, § 117-3; People v. Price, 24 Ill App2d 364, 164 NE2d 528; People v. Stepnewski, 121 Ill App2d 249, 257 NE2d 570 (1970).) We conclude that the trial judge did not abuse his discretion either in denying defendant’s request for a continuance of the hearing on the issue of defendant’s probation violation or in terminating defendant’s probation in accordance with applicable statutory provisions.

We find it was not error for the court to refuse defendant Williams an opportunity to present mitigating evidence in his behalf at the probation termination hearing. A hearing in aggravation and in mitigation had been conducted as to each of the defendants at the original robbery trial before being placed on probation. The record does not indicate there was any necessity for another hearing in mitigation. In view of the familiarity of the trial judge with the past record of defendant Williams, it was discretionary for the trial judge to hold a second mitigation hearing at the time of the termination of defendant Williams’ probation.

We find no merit in the contention of defendant Williams that he was denied effective assistance of counsel by not being allowed a continuance of the hearing. The record here does not demonstrate that defendant was prejudiced by the denial of a continuance by the trial judge, and there was no showing that defendant was denied any proper assistance of counsel.

Finally, both defendants contend that their respective sentences were excessive and should be modified by this court. Defendants assert that by the sentences imposed here, the court undertook to punish the defendants not only for the initial offense for which they were granted probation but for their subsequent offense. Defendants urge that the sentences fail to take into consideration or provide for defendants’ rehabilitation. In support, defendants cite People v. Lillie, 79 Ill App2d 174, 223 NE2d 716 (1967), and People v. Morgan, 55 Ill App2d 157, 204 NE2d 314 (1965), where the court said (p 161):

“Invoking punishment for violation of probation does not, in any sense, undertake to punish for the offenses committed subsequent to the granting of probation. Granting probation only defers the imposition of sentence as to the matter wherein probation was granted.”

The imposition of a sentence is peculiarly within the discretion of the trial court, and unless clearly abused a reviewing court will not interfere therewith. Accordingly, before an Appellate Court will interfere it must be manifest from the record that the sentence is excessive and not justified under any reasonable view which might be taken of the record. See People v. Hobbs, 56 Ill App2d 93, 205 NE2d 503 (1965), and People v. Garkus, 105 Ill App2d 426, 245 NE2d 653 (1969), where the court stated (p 428):

“The trial court had placed the defendant on probation despite what was described as a ‘substantial criminal background.’ The court had warned the defendant that if the conditions of probation were violated it would not be sympathetic to him. Despite the court’s leniency, he broke the terms of his probation by continuing to engage in criminal activities. The punishment imposed by the trial court was within its discretion and was fully warranted.”

The instant record does not manifest that this is a proper case for the exercise of the statutory power to “reduce the punishment” imposed by the trial court. The sentences imposed of five to eight years were within the statutory limits set for the original conviction of robbery, upon which probation was granted. Each defendant had a lengthy record for vagrancy and other misdemeanor offenses. Each defendant had been warned by the trial court that the granting of probation was each man’s last chance to rehabilitate himself without suffering confinement in the Illinois State Penitentiary. Neither defendant heeded the warning. Defendant Williams was subsequently convicted of theft in that he had victimized a man on the street and taken money from him by force. Garner was again convicted of the same type of misdemeanor which occupied page after page of his previous record. As the State asserts, there is nothing in the record to show that the trial judge acted harshly or in anger in sentencing either of the defendants. We conclude the sentences imposed on both defendants were not excessive and should be affirmed.

For the reasons given, the judgments of the Circuit Court of Cook County as to defendant Williams (Appeal No. 54,090) and as to defendant Garner (Appeal No. 54,093) are affirmed.

Judgments affirmed.

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


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James McBride, Defendant-Appellant.
    Gen. No. 53,922.
    First District, Fourth Division.
    September 23, 1970.

      Patrick T. Murphy and Freddy S. Meinfelder, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

In two separate indictments, defendant was charged with one murder and two armed robberies. After a jury trial, he was convicted of voluntary manslaughter and both robberies. The court imposed concurrent sentences of two to ten years.

In this appeal it is contended that (1), the trial judge erred in not allowing a psychologist (in testimony before the jury), to answer hypothetical questions concerning defendant’s sanity; (2), the trial judge erred in refusing to instruct the jury on the subject of sanity; (3), the trial judge erred in giving the jury an instruction defining murder when the evidence could not support a conviction for that offense; (4), the trial judge erroneously instructed the jury on the subject of self-defense; and (5), defendant was prejudiced by final arguments in which the assistant state’s attorneys made a personal attack on defendant’s court-appointed counsel.

On August 27, 1967, at approximately 6:15 a. m., Preston Fox was the night clerk in the Nicollet Hotel in Chicago. Present at the time was a self-described prostitute, Mrs. Helen Barnes, who lived in the hotel and was the maid. Defendant entered the hotel. Moments later, Fox and defendant exchanged words, followed by an altercation in which each man struck the other with his hand. Fox drew a .38-caliber gun from his pocket. The two men struggled for the gun. As they did, Mrs. Barnes stepped into a room nearby. In the struggle, the men moved out of Mrs. Barnes’ vision. When they returned within Mrs. Barnes’ view, she saw the gun in defendant’s right hand. The two men again struggled out of Mrs. Barnes’ vision. She heard the gun go off. Mrs. Barnes then heard Fox say, “You did it.” He fell to the floor and died a short time later from a wound caused by a bullet that entered his left chest.

With Fox’s gun in his possession, defendant ran out of the hotel and.went six blocks north and west to a filling station at 327 West Chicago Avenue. A taxicab was being checked by the station attendant, Lester Woodruff. Standing nearby was the driver, Randall Ehardt. Using the gun, defendant robbed both men, taking $17.00 from Woodruff and between $6.00 and $7.00 from Ehardt. Defendant then ordered Woodruff to lie on the ground near some gas pumps. He ordered the cab driver to drive him away. Woodruff heard defendant say, “I’ve killed one man and another doesn’t make any difference.” After the cab left, Woodruff called the police.

When Ehardt drove from the filling station, defendant, seated in front, held him at gun-point. The cab went a short distance north, then east. He then told Ehardt “[t]hat he wanted to go to the County Hospital Blood Bank.” At one intersection, an illegal left turn by Ehardt (ordered by defendant) attracted a police car. Ehardt attempted to comply with the officers’ command to stop; but defendant told him “to take off.” A short distance away the cab was stopped by a road block. Defendant was forced out, arrested and searched. On his person $23.00 in currency were found. In the cab was found the gun defendant took from Preston Fox. It and a bullet taken from the body of Fox were admitted in evidence. Defendant, through his counsel, stipulated that the bullet was fired by the gun.

In his defense defendant called Doctor Joseph Garvin, a psychologist. His testimony disclosed that more than eleven months after the events in question he examined defendant and subjected him to psychological tests. Doctor Garvin was asked whether he could “tell the ladies and gentlemen of the jury and the court something about McBride’s personality and makeup.” There was an objection. In proceedings outside the jury’s presence, the assistant state’s attorney argued that the question asked Doctor Garvin would have elicited irrelevant evidence. He argued that a question concerning defendant’s personality or his personality traits could not raise an issue concerning sanity. After hearing counsel, the trial judge sustained the state’s objection. Defendant’s attorney requested and was given leave to make an offer of proof by questioning Doctor Garvin outside the presence of the jury.

In answers to questions put to him by defense counsel, the court and the assistant state’s attorney, Doctor Garvin said that in his opinion defendant, at the time of the offenses charged in the two indictments, was not suffering from any mental disease or mental defect. A hypothetical question was asked Doctor Garvin. Then, before he could answer, he was asked:

THE COURT: “Are there enough factors there for you to conclude?”
A. “There really aren’t. We are asking about an act here which could have numerous interpretations, it might indicate that the man was not sane or thinking rationally, but it might indicate many other things, I do not know his purpose or —”
MR. MURPHY: Q. “By the fact you say there might be this, that and the other thing, would you characterize these thoughts in your own mind as a doubt?”
A. “I think you could say that, yes, there would be something for further exploration, but I could not come to any conclusion, there is no one conclusion that follows from those facts is the point I want to make.”
Q. “Doctor, I’m not asking you on the sanity issue at all.”
A. “Okay, then I would have a doubt, I would have some doubt.”

Counsel for the defendant then told the trial judge he wanted the jury to hear Doctor Garvin’s answer. There was an objection by the State. The objection was sustained. It is this ruling that forms the basis for defendant’s first contention. Defendant argues that the trial judge erred in precluding Doctor Garvin from answering the hypothetical question in testimony before the jury.

This contention is without merit. Doctor Garvin’s doubt concerning the sanity of a hypothetical person was not material. It would have had no bearing on defendant’s sanity at the time of the alleged offenses. It would not have been evidence that as a result of mental disease or mental defect defendant lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law when he committed the offenses charged against him. In contrast with People v. Noble, 42 Ill2d 425, 248 NE2d 96, there was no medical evidence on which the testimony of Doctor Garvin, a psychologist, could rest. Under these circumstances, the trial judge’s ruling was correct. Compare People v. Pecora, 107 Ill App2d 283, 246 NE2d 865.

Defendant’s second contention is that the trial judge erred in refusing to give the jury two of his instructions concerning sanity. Defense instruction No. 13:

Every man is presumed sane until this presumption is overcome by evidence sufficient to raise a reasonable doubt of sanity at the time of the crime. The presumption of sanity is overcome by evidence, tending to prove insanity of accused, which is sufficient to raise a reasonable doubt of sanity at time of commission of act for which accused is sought to be held accountable, and when that is done presumption of sanity ceases and prosecution is then required to prove sanity of accused beyond a reasonable doubt, as a necessary element of crime charged (sic)

Instruction No. 14:

A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

When these instructions were offered, the State objected on the ground that no evidence raised the issue of defendant’s sanity. Defendant’s counsel argued that both Lester Woodruff and Randall Ehardt testified that when defendant robbed them, he acted irrationally. Counsel urged that the testimony of the two lay witnesses and that of Doctor Garvin raised the issue of defendant’s sanity at the time of the offenses. After hearing argument, the trial judge refused to give the two instructions.

Under our law, “A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Ill Rev Stats 1967, c 38, § 6-2(a), (b). The law presumes all men are sane. People v. Kenzik, 22 Ill2d 567, 177 NE2d 162. Because of this presumption, to raise an issue concerning sanity, there must be some evidence that tends to prove insanity. People v. Munroe, 15 Ill2d 91, 98, 154 NE2d 225. This being so, there must have been such evidence before defendant was entitled to any instruction on insanity. Evidences of idiosyncratic behavior and irresponsibility of conduct were insufficient to warrant an insanity instruction. United States v. Gorman, 393 F2d 209 (7th Cir 1968), cert den, 393 US 832, 21 L Ed2d 103, 89 S Ct 102. Neither the testimony of the two lay witnesses nor that of Doctor Garvin was enough to raise a reasonable doubt concerning defendant’s sanity. People v. Davenport, 111 Ill App2d 197, 249 NE2d 328; see 73 ALR3d 146, Annotated. Therefore, refusal of defendant’s instructions on sanity was not error.

Defendant’s third contention is that the trial judge erred in giving the jury an instruction defining murder when there was no evidence to sustain a verdict for that offense. Defendant argues that the murder instruction without evidence of malice, express or implied, intimidated a confused jury into compromising defendant’s claim of self-defense.

Translating this language to terminology applicable to the Criminal Code, this contention disregards the testimony of Helen Barnes who said she saw Preston Fox’s gun in defendant’s right hand. A few minutes later, according to her, a shot was fired. This testimony, if believed by the jury, tended to prove that defendant disarmed Fox and then shot him. Ordinarily, one is not justified in shooting or employing a deadly weapon against his antagonist after the latter has been disarmed or disabled. 40 CJS, Homicide, § 131. Although defendant contends the killing of Fox was self-defense, it was a question of fact whether defendant, without justification, shot and killed Fox after he was disarmed. Whether the killing of one person by another occurs under circumstances which justify the act under the doctrine of self-defense, or was the result of some other motive, is a question of fact to be determined by the jury, under proper instructions, from consideration of all the evidence. People v. Smith, 404 Ill 125, 88 NE2d 444; People v. Adams, 113 Ill App2d 205, 252 NE2d 35. This was a murder prosecution; and there was evidence of that offense. Consequently, it was proper for the trial judge to instruct the jury on that subject so that the jury could decide whether the defendant was guilty of murder or of the lesser included offense of voluntary manslaughter. See People v. Dorsey, 98 Ill App2d 259, 240 NE2d 391.

Defendant’s fourth contention is that the trial judge erroneously gave the jury two State instructions.

Instruction No. 18:

The court instructs the jury that a person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in the Court’s instruction on self-defense, but his belief is unreasonable.

Instruction No. 22:

The court instructs the jury as a matter of law that the defense of self-defense is not available to a person who otherwise initially provokes the use of force against himself, unless:
1. Such force is so great that he reasonably believes that he is in imminent danger of death or great bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
2. In good faith, he withdraws from physical conduct with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

It is obvious that No. 18 did not primarily concern self-defense. This was the State’s instruction on voluntary manslaughter. It is a rule in homicide cases that if there is evidence, believed by the jury, which would reduce the offenses to manslaughter, an instruction defining the crime must be given. People v. Harris, 8 Ill2d 431, 134 NE2d 315; People v. Gajda, 87 Ill App2d 316, 232 NE2d 49. In its notes to Illinois Pattern Instructions in Criminal Cases, IPI — Criminal, 7.05, the Committee said, “When the charge is murder, the defense is self-defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instruction should be: first Instruction 7.01 (Murder) ; second, this Instruction 7.05; third, applicable instruction from Chapter 24 — Defenses.” The circumstances of this case made the instruction given proper.

No. 22 was on the subject of self-defense. Because there was a question whether defendant or Preston Fox was the initial aggressor in the altercation that resulted in the homicide, this instruction gave the applicable law to the jury. In substance, the instruction was IPI — Criminal, 24.09. On the evidence which the jury-heard, giving of this instruction was not error. People v. Jordan, 18 Ill2d 489, 165 NE2d 296.

Defendant’s fifth contention complains of the final arguments of the assistant state’s attorneys. He argues that they made a personal attack on his court-appointed counsel. We have carefully examined the summations to the jury. We find that the remarks complained about were concerned with the testimony of defendant’s court-appointed counsel which was offered to impeach Mrs. Helen Barnes, the State’s principal witness. The remarks which form the substance of this contention were addressed to the credibility of the two witnesses. Fairly construed, they were not reflections on defendant’s court-appointed counsel. They were arguments concerning the evidence. Statements of counsel and argument based on proven facts and circumstances, or upon legitimate inference therefrom do not exceed the bounds of proper debate and are not to be discountenanced by the courts. People v. Conrad, 81 Ill App2d 34, 49, 225 NE2d 713, affd 41 Ill2d 13, 241 NE2d 423.

After reviewing defendant’s contentions, we conclude that he received a fair trial. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.

        9—1(a)(1) and (2), 9-2(b)7-l.


author: JUSTICE THOMAS J. MORAN.

text:
    Helen Ricke, Plaintiff-Appellee, v. Cyril Ricke, Defendant-Appellant.
    Gen. No. 69-27.
    Second District.
    August 31, 1970.
    Paul T. Kalinich and Edward Van de Houten, Jr., of Glen Ellyn, for appellant; Robert Hotte, of Glen Ellyn, for appellee.
   Opinion by

JUSTICE THOMAS J. MORAN.

Not to be published in full.