text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Richard Dowdell, Defendant-Appellant.
    Gen. No. 54,021.
    First District, First Division.
    May 25, 1970.

      Irwin L. Frazin and Howard T. Savage, of Chicago, for appellant.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Gayle F. Haglund, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant Dowdell was found guilty of the offense of failing to register his possession of a firearm in violation of chapter 11.1, section 7, of the Municipal Code of the City of Chicago. He was fined $500. On appeal he contends that (1) the complaint failed to state a violation of the ordinance involved, and (2) the evidence was insufficient to establish the elements of the offense charged.

The complaint was filed in the Circuit Court of Cook County on November 2, 1968. It charged defendant with violation of chapter 11.1, section 7, of the Municipal Code of Chicago, which provides:

“Every person after purchasing or otherwise acquiring a firearm from any person other than a licensed firearms dealer shall, within 10 days of the purchase or other acquisition, provide the City Collector with the information stipulated in Section 11.1-8 of this Chapter on a registration form designed or approved by the City Collector. If the purchase or other acquisition of the firearms precedes the effective date of this ordinance, the person shall register the possession of a firearm with the City Collector on forms designed or approved by the City Collector within 30 days after the effective date of this ordinance.”

The complaint alleged:

“Granville Hawkins complainant, now appears before the Circuit Court of Cook County and states that Richard Dowdell has, on or about 2 November, 1968 at 217 E. 47th St., Chgo., Ill. committed the offense of Failure to Register Firearms in that he failed to register his possession of a firearm to wit: 1-.32 cal. NP Arminius Revolver Ser. #65685 and one .32 Cal. Smith and Wesson Blue Steel Revolver, Serial #63319, within 30 days of April 15, 1968 in violation of Chapter 11.1 Section 7 of the Municipal Code of the City of Chicago.”

At the hearing of defendant’s motion to suppress, which was denied, and at the trial, Chicago Police Officer Brown testified that on November 2, 1968, he and his partner were walking on 47th Street in Chicago when they saw a man come out of a store and change clothes in the back seat of an automobile. As the police officers walked past the car in which three men were seated, defendant Dowdell was sitting behind the driver’s wheel. The glove compartment was open, and they could see two pistols there. They identified themselves as police officers and asked the men to step out of the car. A license plate check was run on the car, and it disclosed that it was registered to defendant. The three men were then arrested. It was stipulated that the two weapons might be admitted into evidence.

At the conclusion of Brown’s testimony, the trial court denied defendant’s motion for a directed verdict and held that a prima facie case had been established “that the weapon has been in the possession of the person charged for more than ten days.”

Defendant then testified that on November 2, 1968, he was sitting behind the wheel of an automobile with two other men, when Officer Hawkins ordered him out of the car and recovered two pistols from the closed glove compartment. He had purchased the two guns on October 31, 1968, in a tavern and paid $20 apiece for them. He thought the seller’s name was James Dobbs. He did not ask if the weapons were registered, nor did he register them himself. He was the owner of the vehicle and had put the two pistols in the glove compartment when he bought them.

In finding defendant guilty, the court remarked that in a bench trial the court is the determiner of the credibility of the witnesses, that the weapons belonged to defendant Dowdell, and that the court did not believe that he had just purchased them.

Initially, defendant contends that “the complaint fails to state an offense against the ordinance of the City of Chicago described therein as having been violated, or against any ordinance of the City of Chicago, and the judgment based upon that complaint must fall.” In substance, defendant asserts that there was no allegation in the complaint that defendant purchased or acquired the firearm in question prior to April 15, 1968, nor is there an allegation that if it was purchased after that date that ten days had elapsed without him registering it. From this, defendant argues that “the trial court was, therefore, without any jurisdiction to enter the judgment against the Defendant and this absence of jurisdiction could not be waived by the Defendant, nor could jurisdiction in any way be conferred upon the trial court by any action, or inaction, on his part.”

Defendant’s authorities on this point include People v. Minto, 318 Ill 293, 149 NE 241 (1925), where the court said (p 295):

“An indictment or information charging a crime is a necessary preliminary to a conviction by the court for that crime. No waiver or consent by defendant to a criminal prosecution can confer jurisdiction or authorize his conviction in the absence of an accusation charging him with a violation of the criminal law.”

Also, “jurisdiction is ordinarily acquired by an indictment, information, or complaint, and where the accusation is invalid the court is without jurisdiction.” 14A ILP 70, § 95.

Since prosecutions for ordinance violations are not strictly or exclusively civil or criminal, but have been designated as quasi-criminal, civil procedure rules govern. A quasi-criminal complaint need not be drawn with the precision of an indictment or information, and it is adequate if it informs the defendant sufficiently to enable him to prepare his defense. If the circumstances are such as to make a more detailed statement necessary or desirable, a motion to that end should be made. City of Chicago v. Lewis, 28 Ill App2d 189, 193, 171 NE2d 70 (1960); City of Chicago v. Berg, 48 Ill App2d 251, 254, 199 NE2d 49 (1964).

An examination of the instant complaint in the light of the foregoing shows that it is in writing; that it cites the City ordinance alleged to have been violated; that it sets forth the nature and elements of the offense charged; that it states the date of the violation as definitely as can be done; and that it sets forth the name of the accused. In sum, we find no merit in this contention and hold that the instant complaint adequately informed the accused of the nature and cause of the accusation, and it was sufficient to enable him to prepare his defense. See People v. Tammen, 40 Ill2d 76, 78, 237 NE2d 517 (1968).

Considered next is defendant’s contention that the evidence here was insufficient to establish the offense charged. Defendant points out that the City failed to prove that he either purchased or acquired the firearms prior to April 15,1968, or that if he purchased or acquired the firearms after that date, ten days had elapsed without him registering them. He further notes that the only evidence was that defendant acquired the firearms on October 31, 1968, and was possessed of them on November 2, 1968. Defendant asserts that there was “nothing in evidence from which an inference can be drawn that he purchased or acquired them prior to that date. ... To convict a person of a violation of a city ordinance without evidence violates the due process clause of the Fourteenth Amendment to the United States Constitution. Thompson v. City of Louisville, 362 US 199, 4 L Ed 2d 654, 80 SCt 624 (1960).

“ ‘Just as “Conviction upon a charge not made would be sheer denial of due process,” so it is a violation of due process to convict and punish a man without evidence of his guilt/ ”

Defendant further notes that neither human experience nor common sense allows the inference that one who possessed a firearm on November 2, 1968, purchased or acquired that weapon prior to April 15, 1968, or even ten days prior to November 2, 1968. He asserts that such a presumption would be unconstitutional. On this point defendant cites Leary v. United States, 395 US 6 (1969), where the court stated (p 36):

“The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”

The City contends that once it showed the firearms to be unregistered, a prima facie case was established, and the burden of going forward with the evidence fell on defendant to show that he came within the 10-day grace period in the ordinance, but that defendant failed in this regard. It notes that the substantive thrust of this entire chapter of the Municipal Code is that all firearms, regardless of how they are acquired, must be registered, and that the 10-day exception is a mere grace period allowed. It further notes that courts have frequently, in interpreting statutes, required that the burden of going forward with the evidence shifts once a violation of the principal part of the statute is shown. Among the authorities cited are Fong Yue Ting v. United States, 149 US 698 (1893); United States v. Tehan, 365 F2d 191 (6th Cir 1966), and Morrison v. California, 291 US 82 (1934).

In Fong Yue Ting v. United States, an Act of Congress provided that any Chinese laborer found within the United States without a required certificate of residence after one year would be adjudged to be in the country unlawfully. The court held that the lack of a certificate was prima facie evidence.

In United States v. Tehan, the Circuit Court of Appeals upheld the constitutionality of the provision in the Ohio Code which shifted the burden upon the defendant to show that the securities he sold were sold under such circumstances as to bring the sale within the exceptions to the law.

In Morrison v. California, the court stated (pp 90-91):

“For a transfer of the burden . . . there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception.”

After examining the foregoing, we conclude the purpose of the ordinance is to require registration of all firearms, and that in the instant case the evidence offered on behalf of the City was sufficient to show the firearms were unregistered. A prima facie case of violation of the municipal ordinance was then established, and the burden of going forward with the evidence was shifted to the defendant to show that he came within the 10-day grace period provided for by the ordinance. As the trial court did not believe defendant as to when he purchased the firearms, we find that the evidence submitted on behalf of the City was sufficient to find defendant guilty of the ordinance violation as charged.

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

Affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald Neidhofer, Defendant-Appellant.
    Gen. No. 54,073.
    First District, First Division.
    May 25, 1970.

      James J. Hajek, Robert J. Hajek, Law Firm Hajek & Hajek, of Berwyn, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James W. Reilley, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

Donald Neidhofer, the defendant, was tried before a magistrate on a complaint charging him with committing the offense of public indecency in violation of chapter 38, section 11-9 of the 1967 Ill Rev Stats. After waiving a jury trial, he was found guilty and fined $500. To reverse the conviction, he brings this appeal.

The evidence discloses that Kathy Norge who was seventeen, and her fifteen-year-old sister, Peggy, were walking on Rutherford Avenue near 54th Street in Chicago at 5:00 p. m. on December 12, 1968, when the defendant who was parked in a "Volkswagen truck called to Peggy for directions to Cicero Avenue. Peggy testified that she alone walked to about two or three feet from the truck and gave directions to the defendant who was sitting in the passenger seat next to the window. She said she could only see him from the chest up through the right seat window and observed that he was wearing a plaid shirt. As she was walking away, the defendant then asked her where the expressway was and how he could get onto it. While Peggy was telling him, Kathy went in front of the truck at the windshield and then told Peggy that the defendant wasn’t wearing any pants. Peggy testified that she didn’t really believe her, but Kathy said, “Let’s get out of here,” so they started walking home.

Kathy Norge testified that when the defendant asked her sister on the second occasion how he could get onto the expressway she “thought something was going on” so she went to the front of the truck, looked in and saw the defendant exposed. She said that he was only wearing a plaid shirt and she could see him to the knee. Kathy testified further that she pulled Peggy’s sleeve and told her, “he doesn’t have any pants on,” and when her sister didn’t believe her she pulled harder and they walked away. Kathy told her mother about the incident and then called the police, who shortly thereafter apprehended the defendant.

The defendant testified that as he drove down Rutherford Avenue, two girls ran in front of his truck and he jammed on the brakes. He thought he might have hit one of the girls, but they continued running. The defendant drove for another three-quarters of a block and then parked his truck to straighten a Christmas tree which had been dislodged. About that time he said he noticed two girls walking on the sidewalk. Thinking these were the girls who had run in front of him, he called to them, intending to ask whether he had struck one of them, but when they turned he saw they were not the same ones. He said he didn’t know what to say to them so he asked them for directions. Shortly thereafter he was arrested. The defendant testified that he was on his way home from work and was wearing his regular work clothes. He denied having exposed himself.

Because of our disposition of the case, it is only necessary to consider the defendant’s contention that he was not proven guilty beyond a reasonable doubt. It is axiomatic that a charge of indecent exposure is an accusation easily made and hard to defend by the party accused. People v. Nunes, 30 Ill2d 143, 195 NE2d 706. We are mindful that the credibility of witnesses and the weight to be given to their testimony is generally better left to the trial judge who saw and heard the witnesses and his decision should be disturbed by the reviewing court only in exceptional cases. It is, however, our duty to reverse a conviction if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt.

In People v. Grear, 42 Ill2d 578, 248 NE2d 661, a seventeen-year-old girl testified that she was standing on a corner with a girl friend when the defendant drove by at about 5 to 10 miles per hour. According to the witness, the defendant was holding his erected “personal part.” The other girl who was also present did not notice anything unusual. The defendant had said nothing to either girl and had not made any attempt to attract their attention. The defendant was convicted after a bench trial. In reversing the conviction, the Supreme Court found that it was significant that the girl companion of the witness did not see anything out of the ordinary. The court noted that the girl had only a fleeting opportunity to view the driver of the car and held that the evidence was not of the clear and convincing nature required to establish guilt beyond a reasonable doubt.

In the case at bar, as in Grear, one of the girls admittedly did not see any exposure. In fact, this was the girl who received the attention of the defendant and to whom he addressed his inquiry while she was only two feet from his truck. In our opinion, the evidence was not of the clear and convincing nature required to establish guilt beyond a reasonable doubt.

The judgment of the Circuit Court is therefore reversed.

Reversed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    William D. Brewer, Plaintiff-Appellant, v. Jimmie Brown, Individually and as Agent of Toledo Scale Co., and Toledo Scale Co., Defendants-Appellees.
    Gen. No. 54,159.
    First District, First Division.
    May 25, 1970.

      Harold H. Margules, of Chicago (Charles T. Booher, Jr., of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith and John G. Langhenry, Jr., of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action in which the jury returned a verdict in favor of defendants and judgment was entered thereon. Plaintiff appeals from an order which denied his motion for a new trial. On appeal the sole issue presented is whether the jury was properly instructed. The record does not contain a transcript of any of the evidence that was presented in the trial court or of the conference on instructions.

The abstract of record filed by plaintiff includes two of defendants’ instructions, Nos. 6 and 7, which plaintiff contends should not have been given. These instructions dealt with the violation of the speed statute and the statute requiring the use of a horn and provided in their last paragraphs:

“If you decide that the plaintiff violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the plaintiff was contributorily negligent before and at the time of the occurrence. IPI No. 60.01.”

Plaintiff asserts that “defendants’ instructions on violation of statute were improperly given since they were written so as to apply only to plaintiff, and as such were partial to defendants, and since there is a pattern instruction on violation of such statute which is free from argument and does not single out one party.” Plaintiff notes that under instruction No. 6 the burden of having a motor vehicle equipped with a proper horn and to use that horn under proper conditions was placed only on plaintiff and not upon defendants. Also, in defendants’ instruction No. 7, the burden of using reasonable speed was solely placed upon plaintiff. Authorities cited are Acosta v. Gill, 48 Ill App2d 186, 198 NE2d 741 (1964), and Macak v. Continental Baking Co., 92 Ill App2d 63, 235 NE2d 855 (1968). The opinions in both of these cases indicate that the record included the trial evidence.

In Macak v. Continental Baking Co., an intersection collision was also involved. The court instructed the jury as to the speed statute as follows:

“If you find from a preponderance of evidence that the plaintiff violated said statute and that she was negligent in so doing and that such negligence, if any, on the part of the plaintiff proximately caused the occurrence in question, then you may find in favor of the defendants.”

The Appellate Court stated (p 67):

“Pattern jury instructions were devised to induce the use of instructions impartially prepared and free of argumentative language. Supreme Court Rule 25.1(a) requires the use of IPI instructions by both sides whenever the court determines that the jury should be instructed on the issue in question and an IPI instruction is applicable. ... In the instant case the court determined that an instruction on violation of the statute was appropriate. IPI No. 60.01 gives an instruction on violation of the statute which is free from argument and which does not single out one party. Defendant’s Instruction No. 3 is written so as to apply only to the plaintiff and as such is partial to the defendant. The trial court should have given IPI No. 60.01 rather than the slanted, partial instruction which it gave. In a case of close liability, as this one is, it was reversible error to give this improper instruction. Accordingly, the cause must be remanded for new trial.”

Plaintiff further argues that Supreme Court Rule 239 was violated. That Rule provides:

“(a) Use of IPI Instructions; Requirements of Other Instructions. Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law. Whenever IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given in that subject should be simple, brief, impartial, and free from argument.”

Plaintiff notes that defendants had modified IPI instruction No. 60.01 by deleting the words “a party” or “the parties” and inserting the words “the plaintiff.” Plaintiff further asserts that “to allow any verdict to stand where substantial changes have been made in an instruction, without bothering to properly cite the changes or inform the court or opposing counsel of the modifications would destroy the work of the Illinois Supreme Court Committee on Jury Instructions. The fact that no objection was made is not material to the real issue on this appeal. Do judges and attorneys have the right to expect honesty and fair dealings in the tendering of instructions ? May we look to a citation at the bottom of the instruction and accept it as being correct? Must we go over each and every instruction word for word, comma by comma, and period by period to make sure that there are no material changes in an instruction from what it is purported to be? I think not.”

Defendants contend that plaintiff “has failed to sustain his burden of proving that defendants’ instructions 6 and 7 were both improper and prejudicial.” They assert that plaintiff has not filed an adequate record so as to allow this court to determine whether the giving of the instructions was error. They note that while plaintiff contends that these instructions should have applied to defendants as well as plaintiff, the record does not contain any evidence that these instructions apply to both parties, and it is improper to give instructions which are not supported by the evidence. Authorities cited are Crutchfield v. Meyer, 414 Ill 210, 111 NE2d 142 (1953), and Shore v. Turman, 63 Ill App2d 315, 210 NE2d 232 (1965), where the court stated (p 321):

“We cannot quarrel with the proposition that a party has a right to have the jury instructed on his theory of recovery or defense. Equally entrenched in our law is the proposition that the lifeblood of a legal theory is facts and if there are no facts supporting the theory, it is error to instruct on that theory. . . . To inject into a case by way of instructions an issue not fairly presented by the pleading and the evidence in the case is reversible error.”

Defendants also maintain that where the complaining party has not been prejudiced by errors in the giving and refusing of instructions, the errors are not reversible. Authorities cited include Grosh v. Acom, 325 Ill 474, 156 NE 485 (1927), where it is said (p 494):

“Whether or not errors in a record in the matter of giving instructions or otherwise are reversible errors must necessarily depend upon the character and amount of proof in the record tending to support the finding and judgment of the court and the amount and character of the evidence contra.”

Defendants further contend that plaintiff’s argument that he did not object to the giving of defendants’ instructions Nos. 6 and 7 because they were not designated as modifications of IPI instructions has no merit, and that Supreme Court Rule 239 was not violated. They assert that the instructions were not modifications of IPI instructions and note that the pattern instruction allows for the designation of one party to the exclusion of the other.

After examining the record before us and the briefs of the parties, we conclude that the propriety of giving defendants’ instructions depended on the evidence given to the jury. As this record contains no transcript of any of the evidence, this court “will presume ‘that the court ruled or acted correctly. . . . Any doubt arising from the incompleteness of the record will be resolved against the appellant.’ ” People v. Zimmerman, 57 Ill App2d 190, 192, 206 NE2d 741 (1965).

Following that rule, we must affirm the order of the trial court because it is not apparent from the instant incomplete record that the giving of defendants’ instructions Nos. 6 and 7 constituted prejudicial error or that Supreme Court Rule 239 was violated.

For the reasons given, the order of the trial court is affirmed.

Affirmed.

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


text:
    Rochelle James, Plaintiff-Appellee, v. Cook County Department of Public Aid, et al., Defendants-Appellants.
    Gen. No. 54,164.
    First District, First Division.
    May 25, 1970.

      William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe, A. Zola Groves, and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellants.
    Gordon H. S. Scott, Mark Spiegel, and William Wagner, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Rochelle James, an AFDC recipient, brought this suit under the Administrative Review Act to review a decision of the Illinois Department of Public Aid which approved the findings of the hearing officer terminating the educational expense payments to the plaintiff in the monthly sum of $24.13. The trial court reversed the decision of the Department of Public Aid and ordered the educational allowance to be restored retroactively. From this order the defendants appeal.

The plaintiff was twenty-five years of age at the time she commenced this action in December, 1968, and had been a recipient of AFDC since July, 1965. She had four children ranging in age from four to eight years. Plaintiff’s monthly grant was $185.86, and she received child support payments of $65. With the assistance of the Department of Public Aid she attended night classes and was graduated from Wendell Phillips High School in January, 1968. During that time she received a special educational allowance of $24.13 a month. Upon her graduation from high school, it was the policy of the department that the special additional educational aid was to cease.

Miss James discussed her desire to continue school with the liaison officer and school authorities, and they encouraged her to go to college. She secured a four-year federal loan scholarship for undergraduate study and in April, 1968, matriculated at Chicago State College. The Cook County Department of Public Aid’s Kenwood District Office requested special approval from the Central Administrative Office of the Cook County Department of Public Aid under the exception policy of the Vocational Manual, chapter 1032, which concerns continuation of an educational plan beyond one year. On September 5,1968, the Central Administrative Office advised the Kenwood District Office that approval could not be given Miss James to attend college because the Illinois Department of Public Aid was not approving the college attendance of AFDC adult recipients. Her $24.13 monthly educational payments which had continued then ceased.

The issue presented to this court is whether the Department of Public Aid must continue the monthly payments of $24.13 for plaintiff’s educational expenses. Plaintiff contends that (1) she qualifies under section 9-5 of the Illinois Public Aid Act for a supplemental grant for incidental educational expenses; (2) Chapter 1032 of the Department’s Categorical Assistance Manual violates the equal protection clause of the federal constitution and (3) the Department of Public Aid is es-topped from denying her the supplementary grant.

Section 9-5 of the Illinois Public Aid Code (Ill Rev Stats 1967, c 23,) which makes provision for educational programs and vocational training and retraining states as follows:

The Illinois Department, the County Departments, and local governmental units, shall cooperate with all public or private education and vocational training or retraining agencies or facilities operating within this State, or making their services available to residents of this State, to the end that there may be developed all necessary education and vocational training or retraining services and facilities required to improve the skills of persons receiving aid under Articles III, IV, V, VI, and VII for whom jobs are not immediately available, or which will provide education, training or experience for persons who lack the skills required for such employment opportunities as are or may become available.
Participants in any such educational or vocational program shall be provided with an extra allowance to pay the costs of such participation.

The Public Aid Code (Ill Rev Stats 1967, c 23, § 12-13) expressly provides that the Department shall make all rules and regulations and take such action as may be necessary or desirable for carrying out the provisions of the code to the end that its spirit and purpose may be achieved and the public aid programs administered efficiently throughout the state.

Chapter 1032 of the Department’s Categorical Assistance Manual, entitled “Education and Vocational Training,” reads in part, as follows:

An educational plan for professional training courses which are at an undergraduate college level and directed toward the acquisition of an academic degree requires approval of the Regional Director (Cook County: Bureau of Welfare Administration). Approval may be given only in these situations:
The Division of Vocational Rehabilitation has approved the plan and will provide payment of costs of vocational rehabilitation services including the cost of tuition, books, transportation, and a substantial subsistence allowance;
For a plan other than one approved by the Division of Vocational Rehabilitation, the recipient has not more than one academic year to complete the undergraduate courses to receive a degree, and the following requirements can be met: a scholarship, loan, or stipend covering the cost of at least tuition is available to the recipient, the recipient will be attending classes at a school located within 40 miles of his home, and there is every probability that the recipient will get a job within a couple of months after receiving a degree. (Emphasis supplied.)

Plaintiff clearly does not fit within this regulation since she has more than one year of college to complete. To have approved her program would have required the Department to make an exception to its policy. But plaintiff contends that the policy of not approving college programs of more than one year for welfare recipients is arbitrary and outside the authority of the statute. We do not agree. The law enables recipients of public aid to receive necessary educational and vocational training or retraining in order to make them acceptable for employment. Plaintiff admittedly received additional special educational aid to assist her in completion of her high school education to make her acceptable for employment. The Department’s policy is not arbitrary, because it provides that where one has acquired the major portion of academic credits toward a degree and is able to get approval of the Regional Director, one year of aid to enable completion of a college curriculum is available.

Wide latitude must be given to administrative agencies. Their discretion is broad and its determination may not be overturned because a court may think them unwise or their policy inappropriate. See People ex rel. Baker v. Strautz, 386 Ill 360, 54 NE2d 441; South Carolina v. Barnwell, 303 US 177, 58 S Ct 510. While plaintiff’s desire to become a teacher and her determination to finish college is certainly commendable, it is not for this court to rewrite the statute or the regulations to enable her to do so. We hold that the decision of the Illinois Department of Public Aid is not in excess of the powers vested in such agency under the Public Aid Code and that the provisions in its manual are not arbitrary and discriminatory toward plaintiff.

We do not agree that chapter 1032 of the Department’s manual violates the equal protection clause of the Fourteenth Amendment. A classification having some reasonable basis does not offend against the fourteenth amendment merely because in practice it results in some inequality. South Carolina v. Barnwell, 303 US 177, 58 S Ct 510; Lindsley v. Natural Carbonic Gas Co., 220 US 61, 78, 31 S Ct 337, 340. It is enough if it rests upon a rational basis to secure the purpose for which it is intended. As stated in Allen v. Conkey, 39 Ill2d 427, 430, 235 NE2d 631, 632:

Laws are not deemed special or class legislation merely because they affect one class and not another, provided they affect all members of one class alike.

The statute and the regulations discriminate between types of educational programs not between groups of people. The classification is a rational one because it supports relatively short educational or vocational training programs for which most recipients will be qualified. Indeed, it was plaintiff who sought an arbitrary exception in her favor. She had already received all the additional educational aid to which she and other welfare recipients like her are entitled. She has shown that she has not been discriminated against.

Finally, we see no merit to the contention that the doctrine of estoppel should apply because the Department gave plaintiff the $24.13 per month for a special educational allowance during the first five months she was enrolled in college and led her to incur obligations which she would not otherwise have incurred. It is argued that plaintiff was led to believe that her college attendance was sanctioned by the Department and its Kenwood Office and that the additional aid would continue while she was in school. It is true that plaintiff was encouraged, motivated and helped by the educational worker to get the scholarship to go to college even though it was known that the Department’s policy did not provide for college work. But public policy forbids the application of the doctrine of estoppel to the State where public revenues are involved. See 18 ILP, § 33 (Estoppel) at page 112. The cases relied on by plaintiff allow estoppel where the government has exercised a proprietary or contractual function, but no case has been brought to our attention which requires the government to pay public revenues to an individual under a general welfare aid statute such as the one in this case because of the representations of administrative personnel. To allow such to be the case would result in the very unequal protection of the law against which plaintiff contends.

For the reasons set forth the judgment of the Circuit Court requiring the Department of Public Aid to pay the plaintiff a monthly educational allowance of $24.13 is reversed.

Reversed.

MURPHY and ADESKO, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Samuel Glasgow, Defendant-Appellant.
    Gen. No. 54,216.
    First District, First Division.
    May 25, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard S. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial defendant was convicted of the offense of burglary and sentenced to the penitentiary for a term of five to ten years. On appeal he contends that (1) he was not proved guilty beyond a reasonable doubt; (2) his Constitutional rights were violated in that he was indicted under an improper section of the Criminal Code; and (3) the sentence imposed was excessive.

On the afternoon of April 9, 1968, at about 1:30, Michael Hoke, a Chicago police officer, found a broken grille above the rear exit of the Elmore Shoe Store, Inc., at 916 East 63rd Street. The bars in front of the transom were broken, and the window had been knocked out. Officer Hoke testified that he climbed up the iron grille and looked inside the store, where he saw a man and a boy. He told them to come out, but they didn’t. He and another officer then knocked a board off the washroom door and crawled in. There were shoes strewn all about in the rear of the store — men’s shoes mostly. After an extensive search of the store, they found defendant and a juvenile lying up against a basement wall. Defendant told Hoke that he was in the basement hiding because of all the shooting going on at 63rd Street, and he didn’t want to get hurt. The officers placed him under arrest and handcuffed him. On his feet he had a new pair of shoes, which were taken from him and inventoried. Hoke found no old shoes in the basement. On cross-examination he said he was working in the riot area and considered the things occurring as looting. When he placed his flashlight on Glasgow, he saw nothing in his hand.

Mrs. Gertrude Wallace, the store manager, testified that when she and two employees left the store on April 8, 1968, it was properly locked and nothing was broken. The store had been locked due to the riots that had been occurring in the neighborhood the previous day. She did not know Glasgow, and he did not have permission to be in the store at the time of his arrest. She identified the shoes Glasgow was wearing as a brand sold in the store.

Defendant Glasgow testified that he was walking through the alley behind the shoe store when he was approached by a man who offered to sell him a new pair of shoes for $5, and he bought them. He saw some men, women and children coming out of the shoe store and was curious as to what they were doing. He admitted entering the store and had seen the police arrive.

On appeal, defendant’s original brief stated the issues presented for review were: “The defendant was not proved guilty beyond all reasonable doubt. If the Defendant is guilty his sentence should be reduced.” A supplemental brief filed on behalf of defendant states that the issue presented for review is: “Whether a defendant charged with burglary instead of looting during a riot has been deprived of the Federal Constitutional guarantee of equal protection of the laws and the State Constitutional guarantee that the punishment shall be proportionate to the offense.”

Initially considered is the contention of defendant in his original brief that he was not proved guilty beyond a reasonable doubt of burglary, the offense for which he was indicted and convicted. Defendant asserts that his testimony shows that “he admitted being in the shoe store. He was going through an alley and encountered a man who had these shoes and offered to sell them for $5, and defendant said he would buy them, which he did. He said they were too big, but they were better than the ones he had. Then he went into the store and tried to hide because of the shooting going on and because he did not want to get hurt. Then he testified he did not intend to take anything from the store. He said he thought the place was out of business. He went in through the window which was open.”

Defendant argues that the evidence for the State was lacking in that the complaining witness did not see defendant enter the store or take anything and could not say that the pair of shoes taken from defendant was a part of the merchandise of the shoe store; also, Officer Hoke did not see defendant take any shoes from the store and put them on his feet, nor were any old shoes found in the basement.

Defendant maintains that “the gravamen of the crime of burglary is the felonious intent of the defendant at the time he enters.” (People v. Glickman, 377 Ill 360, 364, 36 NE2d 720 (1941).) Defendant asserts that all the evidence is circumstantial and under the rules governing such evidence a conviction must meet the standards imposed by the court. Cited is People v. Magnafichi, 9 Ill2d 169, 137 NE2d 256 (1956), and People v. Dougard, 16 Ill2d 603, 158 NE2d 596 (1959), where it is said (p 607):

“Although this court is committed to the doctrine that the jurors are the judges of the weight of the evidence in criminal cases, yet we will not hesitate to reverse a judgment of conviction resting upon circumstantial evidence that raises little more than a suspicion against the accused, and leaves a grave and serious doubt of his guilt.”

We believe that the testimony of the State’s witnesses, although circumstantial evidence, raised more than mere suspicion against defendant, and it was sufficient to convict him of the offense of burglary beyond a reasonable doubt. It was for the jury to believe or disbelieve defendant’s story that he purchased his shoes from a man in the alley. In People v. Novotny, 41 Ill2d 401, 244 NE2d 182 (1968), it is stated (p 411):

“We have recently stated: ‘When the trier of facts renders a decision based upon credible and substantial evidence which is sufficient to convict, that verdict is not subject to question on review merely because the judge or jury chose to believe the consistent testimony presented by the State. . . .’ ... It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witness . . . ; and we will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt.”

Defendant next contends that “it is a violation of the Equal Protection Clause of the Federal Constitution and Article II, sec 11, of the Illinois Constitution to indict an individual under the general burglary statute when the alleged crime occurred during a riot, since the legislature has enacted a specific statute dealing with looting during times of less than normal security.” In support of the contention that defendant should have been charged with “looting” rather than “burglary,” defendant’s supplemental brief states:

“On April 4, 1968, Martin Luther King, Jr. was murdered. A riotous condition erupted in Chicago’s black ghetto, and particularly on the city’s south side. Individuals and mobs in outrage and fury sought vengeance, striking out blindly against the city. Amidst this cataclysm, the defendant, Samuel Glasgow, a Negro, was found with a juvenile in Elmore Shoe Company, Inc., 916 East 63rd Street, Chicago, on the seething south side. Samuel Glasgow was arrested and charged with burglary.
“The question before this court is whether the defendant can constitutionally be indicted under the general burglary statute when the legislature has enacted a specific and subsequent statute dealing with looting during times of less than normal security. The burglary statute, Ch 38, Ill Rev Stats, Sec 19-1, provides in relevant part:
“(a) A person commits burglary when without authority he knowingly enters ... a building . . . with intent to commit therein a . . . theft
“(b) Penalty: A person convicted of burglary shall be imprisoned in the penitentiary for an indeterminate term with a minimum of not less than one year.
“Looting is set forth in Chapter 38, Ill Rev Stats, Secs 42-1, 42-2: [Approved August 3,1967.]
‘A person commits looting when he knowingly without authority of law or the owner, enters . . . upon any premises of another or enters any commercial, mercantile, business or industrial building ... in which normal security of property is not present by virtue of a . . . riot, mob, or other human agency, and obtains or exerts control over property of the owner.’
“42-2: ‘A person convicted of looting shall be imprisoned in a penal institution other than the penitentiary for not less than 6 months and not more than one year or in the penitentiary for not less than 1 year and not more than 3 years.’
“The looting statute is a special statute promulgated by the legislature to deal with a specific situation. That the looting statute is a special law is evident: it comes into operation only when certain special events exist and the nature of the punishment is distinct from that of burglary. One of the preconditions necessary for the statute to apply is that a riot or like condition exist. The record shows that a civil disturbance existed in the area in which defendant was found on April 9, 1968.”

Defendant’s authorities on this point include Chicago Park Dist. v. Harris, 402 Ill 214, 83 NE2d 702 (1949), and People v. Hale, 55 Ill App2d 260, 204 NE2d 833 (1965). In Chicago Park Dist. v. Harris, the court stated (p 222):

“A special law [which is] a complete act within itself, operates to repeal pro tanto the general law to the extent of conflicting with it, or supersedes or constitutes an exception to the general law where there is a conflict between it and the special enactment.”

In People v. Hale, it is said (p 263):

“A particular enactment found in the statute is operative as against general laws relating thereto.”

On the question of looting, the record here indicates that neither defendant nor his counsel interposed any objection in the trial court, before, during, or after the trial, based on the contention that defendant should have been indicted and tried for “looting” instead of “burglary.” The asserted constitutional question is presented for the first time in this court. Objections of this kind must be initially raised in the trial court. (People v. Rohde, 403 Ill 41, 42, 85 NE2d 24 (1949), and People v. Brown, 13 Ill2d 32, 35, 147 NE2d 336 (1958).) In the absence of that issue being presented to the trial court by proper motions in the trial court and the rulings thereon preserved in the record, the question of whether defendant was erroneously indicted and tried for “burglary” instead of “looting” cannot be considered by this court. The indictment adequately charged defendant with the offense of burglary and at the trial for that offense the evidence was sufficient to prove him guilty beyond a reasonable doubt.

Defendant finally contends that the sentence imposed was excessive. He notes that the only property stolen was a pair of shoes, no weapon was involved, and there was no injury to anyone. Also, there was no evidence whatsoever that defendant entered the premises by force. Authorities cited include People v. Lillie, 79 Ill App2d 174, 223 NE2d 716 (1967); People v. Marshall, 96 Ill App2d 124, 238 NE2d 182 (1968); and People v. Jones, 92 Ill App2d 124, 235 NE2d 379 (1968).

The State argues that the time of a sentence for burglary is not based upon property loss, and defendant was not sentenced for stealing small items but rather for the commission of a burglary, and “the sentence is not too severe, as this is Glasgow’s eighth conviction, as well as his fifth felony conviction.”

Imposition of sentence is peculiarly within the discretion of the trial court. Before a reviewing court will interfere, it must be manifest from the record that the sentence is excessive and not justified by any reasonable view which might be taken from the record. People v. Hobbs, 56 Ill App2d 93, 99, 205 NE2d 503 (1965).

Here, defendant’s conduct and his previous record indicate that defendant’s rehabilitation seems doubtful, and the primary concern here should be the protection of the public from defendant’s proclivities. However, in spite of the character and propensities of the defendant and the chances of reform, after considering the nature of the offense and the attendant circumstances here, we believe that the instant record indicates that this is a proper case for the exercise of the power “to reduce the punishment” imposed by the trial court. Rule 615(b)(4), Illinois Supreme Court Rules. See also, People v. Marshall, 96 Ill App2d 124, 238 NE2d 182.

For the reasons given, defendant’s conviction of burglary is affirmed and defendant’s sentence is reduced to a minimum of two years and a maximum of five years in thé Illinois State Penitentiary. As modified the judgment of the Circuit Court is affirmed.

Judgment modified and affirmed.

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


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Levi Wright and Woodrow Ward, Defendants-Appellants.
    Gen. Nos. 52,541, 52,951. (Consolidated.)
    First District, Fourth Division.
    May 27, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Oliver D. Ferguson, and James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellees.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This is a consolidated appeal. Defendants and a Lonnie Lowe were jointly indicted for armed robbery. After a bench trial, they were convicted and the court sentenced each to serve ten to fifteen years. For reversal of these convictions, defendants contend that (1) the suggestive nature of the pretrial identification to which they were subjected resulted in a courtroom identification that denied them a fair trial; (2) their identification by the complaining witness was so unsatisfactory that they were not proven guilty beyond a reasonable doubt. Additionally, the defendant Wright contends that because his alibi evidence was uncontradicted, and because the identification evidence was the testimony of only one witness, the alibi could not be discounted and he could not be found guilty.

April 2, 1966, at approximately 8:30 in the evening, Mrs. Jacqueline Scott “ [w] as coming from the launderette on . . . Pulaski at Washington” to her home at 3820 West Washington Boulevard in Chicago. As she walked east on Washington Boulevard, Mrs. Scott saw three men following her. When she reached the door of her building, one of the men passed her, the other two stopped in a building two doors away. While Mrs. Scott was trying to open the door, the man she identified as the defendant Wright asked her whether that address was “1820.” Mrs. Scott told him it was not. She asked Wright if he was looking for anyone in the building. At the same time Mrs. Scott rang the doorbell to her landlord’s apartment. As she did, “Levi Wright stepped up on the step behind me and put something around my neck. It felt like a knife.” She said, “I knew he took something out, the light flashed on it.” According to Mrs. Scott, “He told me, ‘Don’t scream,’ . . . .” Then “[a]t that time Ward (the other defendant) was putting his hand in my pocket, taking things out.” Mrs. Scott said she had some change and some papers in her pocket. The change “[i]t wasn’t very much, around 15 cents . . . .” Just as her pocket was gone into, Mrs. Scott’s landlord opened the door. The men “ [1] ooked up and saw him and they turned around and walked towards Hamlin .. . .”

Mrs. Scott testified that it was not raining the evening of April 2; that the area in front of her building was illuminated by lights from the Garfield Park Hospital across the street, from streetlights and the lights in the hallway. There was a shadow under a window. She was able to see the three men who accosted her. Mrs. Scott said she went into her home and called the police. In less than ten minutes, policemen came. She gave the police a description of the men.

Chicago policeman William Johnson testified that on April 2 at about 9:00 p. m., while he was working alone, he spoke with Mrs. Scott at 3820 West Washington Boulevard. She gave him a description of two men. After talking with her, he went to 237 North Pulaski Avenue and arrested defendant Wright and the coindictee Lonnie Lowe. A search disclosed that Lowe had a butcher knife on his person. Johnson handcuffed Wright to Lowe, put them in the rear seat of the car he was driving and took them to 3820 West Washington Boulevard. There Mrs. Scott was asked to look at the two men. When she first saw them she said “[t]hey looked like the men . . . and then “[t]hey took the boys out of the car and I saw them, I said, ‘They are the man (sic)’.” The two men were then taken to the 11th District Police Station where Mrs. Scott viewed Wright in a six-man lineup. A short time later, Officer Walter Zanolewicz with two other officers and Lonnie Lowe went in a squad car to a tavern at 325 South Pulaski Avenue and arrested the defendant Ward. He was brought to the police station where he alone was viewed by Mrs. Scott. Defendants contend that these pretrial identifications were unnecessarily suggestive and conducive of irreparable mistaken identifications in court that denied them a fair trial. Stovall v. Denno, 388 US 293, 18 L Ed2d 1199, 87 S Ct 1967 (1967); Palmer v. Peyton, 359 F2d 199 (4th Cir 1966).

The practice of one-man “showups” (as was done with Ward) and the handcuffing of an accused for viewing by the victim of a crime (as was done with Wright), where not necessary, has been condemned as being grossly suggestive. Stovall v. Denno, supra; compare People v. Lee, 44 Ill2d 161, 254 NE2d 469. However, whether a pretrial identification of an accused is so suggestive that it results in a courtroom identification that denies due process of law depends on the facts of each case. An in-court identification may be admissible if it is shown, by clear and convincing evidence, that it has an independent origin, arising from an earlier uninfluenced observation of the defendant. People v. Cook, 113 Ill App2d 231, 252 NE2d 29; People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152. And this is true even though there may have been an intervening suggestive confrontation. People v. McMath, 104 Ill App2d 302, 244 NE2d 330, affirmed 45 Ill2d 33, 256 NE2d 835. Therefore, we must examine the identification evidence and the testimony of Mrs. Jacqueline Scott concerning the crime and the events prior to its occurrence.

At the trial Mrs. Scott identified Ward as one of her assailants. She testified that she saw him alone at the 11th District Police Station the evening of the robbery. During cross-examination, however, she admitted that when she first saw Ward she told the police officers that she was not sure he was one of the men, “[B]eeause he had changed clothes.” There is no evidence in the record that Ward changed his clothes between 8:30 p. m. and the time he was viewed at the police station by Mrs. Scott.

Further cross-examination compelled Mrs. Scott to admit that seven months after the robbery she signed a written statement in which she said that she could not identify the man who went into her pocket (the man she said was Ward) because he was in the shadows near her door and she could not remember him. Thus, it can be seen that Mrs. Scott’s identification of Ward was uncertain. Her written statement made her in-court identification of him doubtful. It thus appears that Mrs. Scott’s pretrial identification of Ward was doubtful and uncertain and her in-court identification was inherently tainted with the unfair suggestion of the one-man showup to which Ward was subjected at the police station the evening of the robbery. Under these circumstances the in-court identification was rendered inadmissible, and Ward’s conviction in No. 52951 therefore cannot stand. Foster v. California, 394 US 440, 22 L Ed2d 402, 89 S Ct 1127 (1969); People v. Fiorita, 339 Ill 78, 170 NE 690; People v. Martin, 95 Ill App2d 457, 238 NE2d 205.

Mrs. Scott’s identification of Wright was different. She said it was Wright who put what felt like a butcher knife on her neck. It was Wright who came to the door as she was trying to open it and asked her if that address was “1820.” She spoke with Wright and asked him if he was looking for someone in the building. The area was illuminated by streetlights, lights in the hallway and lights from a hospital across the street. With the exception of the man who was in the shadow (the defendant Ward), she was able to see the men who accosted her. She gave the police a description of the men. Officer Johnson corroborated her by testifying that Mrs. Scott gave him the description of two of the men. She described Lonnie Lowe as the “tall one.” When Wright was arrested with Lowe, on the latter was found a 12-inch butcher knife. Mrs. Scott testified that when her landlord opened the door, the men “[l]ooked up and saw him and they turned around and walked toward Hamlin.” She could not have given this testimony without having looked at the men. In the written statement introduced in evidence by defendants, Mrs. Scott described Wright, his hair, his clothing and his height. Cross-examination did not shake her testimony concerning her identification of this defendant. We believe that these facts, clearly reflected in the record, show a sufficient, independent and uninfluenced origin or source of Wright’s courtroom identification by Mrs. Scott. People v. Cook, supra.

Nonetheless, it is contended that because the identification evidence against Wright came only from the testimony of Mrs. Scott, and Wright’s alibi evidence was not expressly contradicted, the alibi cannot be discounted and he found guilty. This contention assumes that Wright’s alibi evidence was not subject to question. It overlooks the quality of Miss Shirley Wright’s testimony that she reached the party, six blocks away from the scene of the crime, at about 8:00 p. m. Wright, she said, got there “around 8:30 or quarter to 9:00.” Mrs. Scott testified that the robbery took place at approximately 8:30 in the evening. This alibi evidence did not eliminate the possibility that Wright committed the offense.

The alibi at most, created a conflict between the testimony of Mrs. Scott and that of Wright. The fact that he had an otherwise uncontradicted alibi did not, in and of itself, constitute reasonable doubt of the defendant’s guilt. It was the function of the trial judge to resolve conflicts in the testimony, and he was not obliged to believe the defendant’s alibi evidence over the positive identification by Mrs. Scott. People v. Setzke, 22 Ill2d 582, 177 NE2d 168; People v. Jackson, 95 Ill App2d 28, 32, 237 NE2d 858. The trial judge, as he had the power to do, disbelieved the alibi evidence and believed the State’s witnesses which included Wright’s positive identification by Mrs. Scott. People v. Perkins, 17 Ill2d 493, 162 NE2d 385; People v. Pierre, 114 Ill App2d 283, 252 NE2d 706. The evidence the court believed proved Wright guilty beyond a reasonable doubt. Judgment in No. 52,541 is affirmed.

Judgment in No. 52,541 affirmed; judgment in No. 52,951 reversed.

DRUCKER and ENGLISH, JJ„ concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Luis Velez Adorno, Defendant-Appellant.
    Gen. No. 53,547.
    First District, Fourth Division.
    May 27, 1970.

      Kenneth J. Wysoglad and Christopher A. Mills, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard S. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was convicted after a bench trial of the offense of unlawful dispensing of a narcotic drug. (Ill Rev Stats 1967, c 38, § 22-3.) Judgment was entered and defendant was sentenced to a term of ten to fifteen years. Defendant raises three points on appeal: (1) he did not knowingly and understandingly waive his right to a jury trial; (2) he was denied the right to confront and cross-examine the witnesses against him; and (3) the offense was not proven beyond a reasonable doubt.

The facts may be briefly summarized. On April 14, 1967, at approximately 6:30 p. m., Officer Eugene Manion of the Chicago Police Department, upon information received from a reliable informant, proceeded to the corner of Washtenaw and Division. From his automobile he observed the defendant standing on the corner. Defendant was approached by two men, Aroyo and Lee, known to Manion to be narcotic addicts. The three men began walking north on Washtenaw while Manion followed them on foot. When the three men stopped he heard the defendant say, “Wait there and I’ll get the stuff.” Defendant left but soon returned and rejoined Aroyo and Lee.

Manion then observed the defendant hand a silver package to Aroyo and start to hand a brown package to Lee. Lee began to give defendant some United States currency. Manion then stepped out from behind a big tree and identified himself. Lee grabbed the currency from defendant. Aroyo dropped the silver package he had received from defendant, and defendant dropped the brown package. Manion observed and followed the fall of the silver package that he had seen defendant hand to Aroyo.

Manion arrested the three men and picked up the silver package from the ground. The package was inventoried and then tested at the Chicago Police Crime Laboratory. It was found to contain heroin.

At trial defendant testified in his own behalf and stated that he did not know Aroyo or Lee when apprehended with them and had never handed either of them a package.

Defendant contends that he did not knowingly and understandingly waive his right to a jury trial. However, when defendant’s counsel was asked by the court if there would be a jury or bench trial, counsel answered, “It will be a bench.” The court then explained to defendant that he had the right to a jury trial or, if he wished to be tried by the court, he could waive his right to be tried by a jury. The court then told defendant that if he wanted to waive a jury trial he could sign a jury waiver form. Defendant signed the jury waiver.

In People v. Sailor, 43 Ill2d 256, 253 NE2d 397 defendant also contended that the court failed in its duty to see that her waiver of a jury trial was knowingly and understandingly made. However, the court found no merit in defendant’s argument and at page 260 stated:

The record reveals that defendant’s counsel, in her presence and without objection on her part, expressly advised the court that the plea was “not guilty” and that a jury was waived. An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action.

In the instant case we find that defendant knowingly and understandingly waived his right to a trial by jury.

Defendant also argues that he was denied the right to confront and cross-examine the witnesses against him. Defendant was convicted for dispensing a narcotic drug to a man identified by Officer Manion as Mr. Aroyo. Defendant claims that since Aroyo did not appear as a witness, he was denied the right to confront the witnesses against him.

It is only necessary for the prosecution to call as many witnesses as it believes necessary to prove defendant guilty beyond a reasonable doubt. In the instant case the only witnesses who testified against the defendant were two police officers, who were thoroughly cross-examined by defense counsel. Defendant had seen the list of the prosecution’s witnesses before trial and he knew that Aroyo was not going to be called as a witness by the State. If defendant felt that the testimony of Aroyo was essential he could have required his appearance by means of the subpoena power. This he did not do.

Furthermore, an adverse presumption against the State does not arise from its failure to call Aroyo as a witness. In People v. Jones, 30 Ill2d 186, 195 NE2d 698, the defendant argued that the failure of the State to call a witness to a crime created a presumption that the testimony would be adverse to the State. However, the court at page 190 stated that:

The State is not obligated to produce every witness to a crime and the failure to produce a witness does not give rise to a presumption that the testimony of that witness would be unfavorable to the prosecution.

Defendant next contends that he was not proven guilty beyond a reasonable doubt of dispensing a narcotic drug.

It has been consistently held that the testimony of one witness, if it is positive and the witness credible, is sufficient to support a conviction even though the testimony is contradicted by the accused. People v. Johnson, 24 Ill2d 195, 181 NE2d 164; People v. Cox, 22 Ill2d 534, 177 NE2d 211; and People v. Smith, 121 Ill App2d 105, 257 NE2d 261. Furthermore, in a non jury trial it is the function of the trial court, as the trier of the facts, to determine the credibility of the witnesses and the weight to be accorded their testimony. The trial court’s finding will be disturbed only where the evidence is so unreasonable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. People v. Scott, 38 Ill2d 302, 231 NE2d 441, and People v. Stover, 121 Ill App2d 263, 257 NE2d 580. In the instant case the evidence showed that the defendant dispensed a narcotic drug and his guilt was proven beyond a reasonable doubt.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Richard Long and Roosevelt Nick, Defendants-Appellees.
    Gen. No. 53,790.
    First District, Fourth Division.
    May 27, 1970.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, John O. Clarke, and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellant.
    James L. Mitchell, of Chicago, for appellee, Richard Long.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

The State appeals from an order dismissing an indictment against the defendants-appellees for failure to state an offense. The jurisdiction of this court is invoked pursuant to Supreme Court Rule 604(a). Notice of appeal was sent to both defendants. However, only defendant Long has filed a brief.

The Grand Jury returned Indictment 68-2413, charging the defendants with the offense of burglary (Ill Rev Stats 1967, c 38, § 19-1) “in that they, without authority, knowingly entered into the store of Kenwood Food Mart, Inc., a corporation [on April 7, 1968] with the intent to commit the crime of theft therein, in violation of chapter 38, section 19-1 of the Illinois Revised Statutes. . . .” Defendant Nick was also charged with the offense of aggravated battery.

Defendant Long and defendant Nick were arraigned on July 25 and July 29, 1968, respectively. Both the State and the defendants, through respective counsel, stipulated “that on or about 12:30 a. m. on April 7, 1968, with respect to the premises of the Kenwood Food Mart, Inc., a corporation, located at 1348 East 61st Street, Chicago, Illinois, (i) normal security of the property was not present (ii) by virtue of a riot, mob or other human agency.” Defendants contended that in view of the stipulation, looting (Ill Rev Stats 1967, c 38, § 42-1) and not burglary should have been charged. Therefore defendants made a motion to dismiss the burglary indictment, under the provision of Ill Rev Stats 1967, c 38, § 114-1(a) (8).

At the hearing on the motion to dismiss, defendants argued that the looting statute was a special statute in comparison to the general burglary statute and that since it was passed subsequent to the burglary statute the legislature must have intended that the looting statute repeal pro tanto the burglary statute or create an exception to the burglary statute. The State argued that the trial court had no authority under section 114-1 (a) (8) to dismiss the burglary indictment when all the elements of the offense are stated. The State also pointed out that the elements of burglary and looting are different, and that obviously it was not the intent of the legislature to make looting the sole remedy available during periods of civil disturbance or riot; rather, the legislature intended that the looting statute was to be an addition to the already existing laws.

Despite several suggestions by the trial court that the State amend the burglary indictment to also include looting, the State elected to stand on the burglary indictment alone.

After arguments of counsel the court sustained defendants’ motion and dismissed the burglary indictment. The count alleging the offense of aggravated battery by defendant Nick was stricken off with leave to reinstate. The State appeals from the court’s order dismissing the burglary indictment.

The State contends that a trial court cannot dismiss an indictment under section 114-1 (a) (8) when all of the elements of an offense are stated in the indictment. In order to state an offense an indictment must meet the five requirements as set forth in section 111-3 of the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, § 111-3). In the instant case Indictment 68-2413 met these statutory tests. The indictment stated that the defendants committed the offense of burglary in that they, without authority, knowingly entered into the Ken-wood Food Mart on April 7, 1968, with the intent to commit theft therein.

Section 114-1 of the Code (Ill Rev Stats 1967, c 38, § 114-1) explicitly sets forth the ten grounds upon which an indictment may be dismissed. The only way a trial court can properly dismiss an indictment is to act pursuant to one of these provisions. In the instant case the indictment was dismissed on one of these grounds — failure to state an offense (Ill Rev Stats 1967, c 38, § 114-1 (a) (8)). However, since Indictment 68-2413 fully complied with the provisions of section 111-3 we find that it properly stated the offense of burglary. See People v. Patrick, 38 Ill2d 255, 230 NE2d 843 and People v. Blanchett, 33 Ill2d 527, 212 NE2d 97.

Defendants argue that because of the matter disclosed in the indictment and, more importantly, because of the matter contained within the stipulation, the only offense which the defendants should have been charged with was looting. (Ill Rev Stats 1967, c 38, § 42-1.) However, we believe that the stipulation relied upon by the defendants in their argument and by the trial court in its opinion in no way affected the burglary indictment. The burglary indictment fully complied with the requirements of section 111-3 and properly charged that offense.

Furthermore, there was no stipulation as to the facts of the incident nor could any evidence be adduced at the hearing on the motion to dismiss the indictment. In this vacuum defendant has speculated on situations in which proof of control over property under the looting statute might be equated with the proof of burglary with intent to commit theft. (Ill Rev Stats 1967, c 38, § 16-1.) However, we are bound to consider only the indictment itself and we have found it properly states the offense of burglary.

Defendants further claim that when normal security of property is not present by virtue of riot, mob or other human agency, the crime of burglary is not a proper charge. However, we do not believe that it was the intent of the legislature to frustrate and impede prosecutions for burglaries perpetrated during periods of civil disturbance and treat burglars differently simply because lack of security made their job easier.

We would also note that in People v. Rhodes, 38 Ill2d 389, 231 NE2d 400, defendant contended that he should have been charged with a misdemeanor and not a felony. However, at page 396 the court stated that:

The State’s Attorney is the representative of the People and has the responsibility of evaluating the evidence and other pertinent factors and determining what offense can properly and should properly be charged.

The judgment of the trial court dismissing the indictment is reversed and the cause is remanded for trial.

Reversed and remanded.

ENGLISH and LEIGHTON, JJ., concur.

       § 19-1. Burglary.) (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Motor Vehicle Law, approved July 11, 1957, as amended, railroad car, or any part thereof, with intent to commit therein a felony or theft.

       § 42-1. Looting by Individuals.) A person commits looting when he knowingly without authority of law or the owner enters any home or dwelling, or upon any premises of another, or enters any commercial, mercantile, business or industrial building, plant or establishment, in which normal security of property is not present by virtue of a hurricane, fire or vis major of any kind or by virtue of a riot, mob, or other human agency and obtains or exerts control over property of the owner.

       Motion To Dismiss Charge.) (a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
      (8) The charge does not state an offense.

       Form of Charge.) (a) A charge shall be in writing and allege the commission of an offense by:
      (1) Stating the name of the offense;
      (2) Citing the statutory provision alleged to have been violated;

        (3) Setting forth the nature and elements of the offense charged;
      (4) Stating the date and county of the offense as definitely as can be done; and
      (5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.

       § 16-1. Theft.) A person commits theft when he knowingly: (a) Obtains or exerts unauthorized control over property of the owner; . . . and
      (1) Intends to deprive the owner permanently of the use or benefit of the property; ....


author: MR. PRESIDING JUSTICE STAMOS

text:
    Welfare Finance Corporation, Plaintiff-Appellant, v. Charles H. Bachman, a/k/a Harold C. Bachman or Bochman, and Anne Bachman, Defendants, v. Ray-Car Motors, Inc., Garnishee-Appellee.
    Gen. No. 53,913.
    First District, Fourth Division.
    May 27, 1970.
    Thomas Ryan Rees, of Chicago, for appellant.
    Dario A. Garibaldi, of Flossmoor, for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff, Welfare Finance Corporation, appeals from the Circuit Court’s order vacating its judgment against garnishee for $1,457.15 plus costs and from the subsequent judgment entered in its favor for $51.35.

On February 16, 1968, plaintiff obtained a judgment by confession against defendant Charles H. Bachman (a/k/a Harold C. Bachman) for $1,400 representing the unpaid principal and interest on a note executed by defendant on July 10, 1962. After the summons to confirm judgment was returned, “defendant not found” on February 16, 1968, an alias summons to confirm judgment was served upon Bachman by leaving a copy thereof with his employer, Ray-Car Motors Incorporated, on March 19,1968. The judgment was confirmed on April 15,1968, upon defendant’s failure to appear.

Plaintiff then caused a wage deduction summons and affidavit with accompanying interrogatories to issue returnable May 20,1968, which were served upon garnishee on April 19, 1968. Garnishee failed to respond to the interrogatories and a conditional judgment was entered against it for $1,457.15 plus costs. On May 22, 1968 garnishee was served with summons after conditional judgment to show cause why the judgment should not be made final. Garnishee failed to appear and the judgment was made final July 1,1968.

While these proceedings as to the above wage garnishment were taking place, plaintiff also caused a second wage deduction summons and affidavit with accompanying interrogatories returnable July 24, 1968 to be served on May 22, 1968, the same date of service as the summons after conditional judgment. On June 7, 1968, garnishee in response to plaintiff’s interrogatories in the second wage deduction summons replied, “not in our employ.” On the basis of this answer garnishee was discharged as to the second wage deduction cause on June 24, 1968. Plaintiff then obtained an order vacating this dismissal, but, for want of prosecution, garnishee was again discharged on August 21,1968.

On January 13, 1969, plaintiff filed an affidavit for garnishment against Bremen State Bank based upon the July 1, 1968 judgment in the first wage deduction cause. Garnishee then petitioned under Ill Rev Stats, c 110, § 72, Civil Practice Act, 1967, to vacate the judgment of July 1, 1968, alleging that it had been erroneously finalized in view of the fact that the answer to the interrogatory returnable June 24, 1968 had stated “not in our employ.” Garnishee further alleged the discharges of June 24,1968 and August 21,1968.

The court granted garnishee’s motion and vacated the conditional judgment of May 20, 1968 and the final judgment of July 1, 1968. Garnishee was then given leave to file an amended answer to the interrogatory returnable May 20, 1968. The amended answer was subsequently filed admitting that one Harold Bachman had worked for garnishee and itemizing payroll checks written in Bachman’s favor from April 19, 1968 to May 24, 1968 totaling $458.39.

On February 13, 1969, the court entered judgment for plaintiff and against garnishee for $51.35. Plaintiff appeals the court’s order vacating the judgment finalized on July 1, 1968 and the judgment of $51.35 entered in its favor. Plaintiff prays the latter be vacated and the former reinstated.

OPINION

Plaintiff contends that the section 72 motion to vacate was improperly granted in view of the fact that garnishee failed to allege and prove diligence.

In Bartolini v. Popovitz, 108 Ill App2d 89, 246 NE2d 834 (1969) the court stated:

“Before a final judgment by default may be vacated, the defendant must not only show by petition and affidavit that he has a meritorious defense to the allegations contained in the complaint, but that he also exercised due diligence in presenting his defense.”

The material averments of defendant-garnishee’s petition allege:

“1. That on May 20, 1968 a conditional judgment was entered against Ray-Car Motors, Inc. in the amount of $1,457.15.
“2. That on June 24, 1968, Ray-Car Motors filed its no funds answer and the garnishment was discharged.
“3. That erroneously on July 1,1968, the conditional judgment against Ray-Car Motors, was made final and on July 15, 1968, the Plaintiff filed a motion to vacate the order of June 24, 1968, and set the matter for contest on August 21, 1968.
“4. That again on August 21, 1968, Ray-Car Motors, Inc. was discharged.”

Garnishee’s petition fails to meet the standards as set out in Bartolini, supra.

The filing of an answer to the second (June 24) wage deduction interrogatory and the discharges in that proceeding have no relevance to the first (May 20) wage deduction action. It is evident that the answer applied only to the second wage deduction proceeding since garnishee has admitted that Bachman was in its employ until May 24 and it was obligated to file an answer. There is no explanation of the failure to answer the summons returnable May 20, 1968, or of the failure to appear at the hearing to finalize the judgment. The petition fails to show that garnishee exercised due diligence in presenting his defense.

However, garnishee contends that Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963) “eliminated the necessity to rationalize careless conduct in terms of excusable neglect in cases in which the default judgment constituted a possible miscarriage of justice.” In Wolfe v. Endres, 113 Ill App2d 96, 251 NE2d 740 (1969) we emphasized the fact that the opinion in Elfman, supra, relied upon the serious illness of the attorney’s mother, a meritorious defense and the allegation that opposing counsel took advantage of the attorney’s absence.

Garnishee also cites Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350 (1952), Dann v. Gumbiner, 29 Ill App2d 374, 173 NE2d 525 (1961), and Jansma Transport, Inc. v. Torino Baking Co., 27 Ill App2d 347, 169 NE2d 829 (1960).

These cases are also distinguishable from the present case. In Ellman, supra, the defendant was deliberately misled by the actions of the plaintiff. In Dann, supra, reasonable diligence was shown where the defendant immediately contacted his insurance broker who mailed the summons to the insurer only to have it lost in the mails. In Jansma, supra, plaintiff’s attorneys failed to notify defendant’s attorneys of the default judgment until after the 30-day period following judgment, even though they were in constant negotiation and contact.

The trial court erred in vacating the final judgment of July 1,1968. The judgment of February 13, 1969, and the order of January 22,1969 granting leave to file an amended answer are reversed and the cause remanded with directions to reinstate the judgment of July 1, 1968 in favor of plaintiff.

Reversed and remanded with directions.

DRUCKER and ENGLISH, JJ., concur.

         “(c) The employer shall file, on or before the return date, but in no event sooner than 30 days after service of the summons, or within the further time that the court for cause may allow, a written answer under oath to the interrogatories, setting forth, any amount due as wages to the judgment debtor for the payroll periods ending immediately prior to 30 days after service of the summons.” (Ill Rev Stats, e 62, § 77(c) (1967).)


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Louis Davis, Defendant-Appellant.
    Gen. No. 54,032.
    First District, Fourth Division.
    May 27, 1970.

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

delivered the opinion of the court.

Defendant was convicted after a jury trial of the offense of armed robbery. Judgment was entered and he was sentenced to a term of three to seven years.

Defendant asks that the judgment be reversed and the cause remanded for a new trial because of the following trial errors: (1) the trial court erred in allowing the State to introduce hearsay evidence which made it appear that complainant’s identification testimony had been corroborated; (2) the defense was improperly restricted from discrediting the testimony of a State’s witness; and (3) the closing argument of the prosecutor was improper and prejudicial.

Defendant does not challenge the sufficiency of the evidence. Therefore the facts may be briefly summarized. On July 2, 1967, the complainant, Shirley Farrow, entered the elevator of her building about 6:30 a. m. A man, later identified as the defendant, entered the elevator at the same time. The light was on inside the elevator and she could see the man’s face. As the door closed the defendant pulled the emergency bell and threatened complainant with a knife. The knife was held next to her neck. Defendant told her not to scream or he would kill her. He took a $10 bill out of complainant’s wallet which she had been holding in her hand. Defendant also took a $5 bill and two $1 bills from complainant which were hidden in her bra. Defendant then fled.

Complainant called the police and two officers arrived at approximately 6:45 a. m. She described the incident and the assailant and told the officers she could identify the assailant. The officers asked her to accompany them in the squad car while they searched the neighborhood. As they cruised the area complainant saw the defendant on the street and she immediately identified him as the person who had robbed her.

Defendant was arrested and a search of his person revealed a brown-handled knife which complainant said was the knife used in the robbery. One of the arresting officers, Officer McKinley, also testified that defendant carried $17 and some change. He had one $10 bill, one $5 bill and two $1 bills along with the change. The officer further testified that at the police station the complainant told defendant, “You are the man that robbed me.” Defendant asked her, “Why do you want to do this to me?” and he offered complainant up to $200 not to sign the complaint and drop the charge.

Defendant’s grandmother testified that the defendant was at her home at the time the crime was committed.

Defendant contends that the trial court erred in allowing the State to introduce hearsay evidence which made it appear that complainant’s identification testimony had been corroborated. Defendant points out that each of the arresting police officers testified that as complainant viewed defendant from the squad car as they cruised the neighborhood she had said, “That’s the man.” However, no objection was made to this testimony during the trial. As this court stated in People v. Cobb, 52 Ill App2d 332, 340, 202 NE2d 56:

Timely objection to hearsay statements must be made at trial and cannot be raised for the first time at the appellate level. People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817.

See also People v. Griswold, 100 Ill App2d 436, 241 NE2d 212.

Defendant next contends that the defense was improperly restricted from impeaching the testimony of a State’s witness. Defendant argues that the arresting officers’ written statements were inconsistent and should have been allowed into evidence. Officer McKinley, one of the arresting officers, testified that he had made two prior written statements, a police robbery case report and a prep sheet. During cross-examination defense counsel was allowed to read to the jury inconsistent statements from these documents but he was not allowed to introduce them into evidence. Prior to defense counsel’s closing argument the court admonished him not to deliberately and openly read from these documents since they had not been allowed into evidence. However, the court did allow counsel to refer to them in closing argument by summarizing the inconsistent statements.

The State argues that no prejudice accrued to defendant by the exclusion of the police report and prep sheet since counsel read the inconsistent statements to the jury and summarized them during closing argument. Furthermore, the State points out that defendant had already rested his case when he attempted to introduce the two documents into evidence. As the trial record shows, the documents were offered into evidence soon after the defense had rested. However, defendant claims that nothing had occurred since the time he had rested, and that no prejudice would have resulted from allowing him to introduce the documents into evidence at the time they were offered.

It is within the sound discretion of the trial court whether a case may be reopened for further evidence and this discretion will not be interfered with except where clear abuse or prejudice to defendant is shown. People v. Franceschini, 20 Ill2d 126, 169 NE2d 244; People v. Kelly, 378 Ill 273, 38 NE2d 9; People v. Simpson, 76 Ill App2d 441, 222 NE2d 102; and People v. Hill, 61 Ill App2d 16, 208 NE2d 874. We find that the trial court did not abuse its discretion when it denied defendant’s motion to introduce the two documents into evidence after defendant had rested his case. We further find that defendant was not prejudiced by the court’s action since the inconsistent statements were read to the jury and the court allowed counsel to summarize these statements during closing argument.

Defendant also contends that the court prevented him from discrediting the testimony of Officer McKinley when it sustained objections to defendant’s cross-examination of Officer Joseph. This officer was asked whether he had a conversation with McKinley concerning McKinley’s testimony on the preceding trial day. Defendant suggests that in this conversation Officer McKinley might have attempted to influence Officer Joseph to change his testimony. It would have been proper to allow defendant’s counsel to inquire about the conversation between the officers. (West Chicago St. R. Co. v. Byrne, 85 Ill App 488.) However, as stated in People v. Kirkwood, 17 Ill2d 23, 33, 160 NE2d 766:

Where it appears that the errors in the record could not have reasonably affected the result, the judgment of conviction should be affirmed. (People v. Lopez, 10 Ill2d 237; People v. Sleezer, 9 Ill2d 57; People v. Henry, 3 Ill2d 609.)

In view of complainant’s testimony, which was positive and unshaken, we believe the court’s ruling could not have reasonably affected the jury’s verdict.

Defendant’s final contention is that the prosecutor’s closing argument was improper and prejudicial. Defendant cites several remarks of the prosecutor which he alleges were improper and prejudicial to his case. One such remark by the prosecutor was that it was a fairly common tactic for defense counsel to try the police officers rather than the defendant. We find that this remark could not have been a material factor in defendant’s conviction. Therefore, it does not justify a reversal of the judgment. People v. Nilsson, 44 Ill2d 244, 255 NE2d 432.

The remaining remarks cited by defendant were not objected to in the trial court. Accordingly the alleged errors, if any, were waived. People v. Hampton, 44 Ill2d 41, 253 NE2d 385.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.

       A prep sheet (short for preparation sheet) is a statement given by a witness outside the Grand Jury room to a State’s Attorney’s stenographer. These “prep” sheets are brief summaries of a witness’ testimony before the Grand Jury and are used by the State’s Attorney to prepare for trial.