author: JUSTICE MORAN JUSTICE UNDERWOOD,

text:
    (No. 53827, 53872 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FOREST P. WHITLOW et al. (James Marando, Appellant).-THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FOREST P. WHITLOW et al. (Forest P. Whitlow et al., Appellees).

      Opinion filed February 19, 1982.
    Rehearing denied March 25, 1982.

      UNDERWOOD and SIMON, JJ., dissenting.
    Peter N. Soble, of Rock Island, for appellant.
    No appearance for the People.

      Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Herbert Lee Caplan, Michael B. Weinstein, and Kenneth A. Fedinets, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Louis B. Garippo, Ltd., of Chicago, for appellee Forest P. Whitlow.
    F. Jack Nathan, of Spector, Tappa, Kopp & Nathan, of Rock Island, for appellees Joseph P. Delfino and John L. Brewer.
    Anton R. Valukas, Jeffrey D. Colman, and Michael B. Brohman, of Jenner & Block, of Chicago, for appellee Truman K. Gibson, Jr.
   JUSTICE MORAN

delivered the opinion of the court,:

Defendants, Forest P. Whitlow, John L. Brewer, Joseph P. Delfino, Truman K. Gibson, Jr., and James Marando, were charged in a 12-count indictment with conspiracy, theft and violations of sections 12 and 14 of the Illinois Securities Law of 1953 (Ill. Rev. Stat. 1973, ch. 121½, pars. 137.12(F), (G), (I), 137.14). A jury in the circuit court of Rock Island County found defendants Whit-low, Brewer, Delfino and Gibson guilty on all counts. The trial judge vacated the jury’s verdict on counts I and VI, the conspiracy counts, on the ground that a defendant cannot be convicted for both the inchoate and substantive offenses. The verdict on count XII was vacated because it did not properly allege an offense. Judgment was entered on the remaining nine counts. Each of these defendants was sentenced to concurrent terms of not less than one nor more than three years’ imprisonment on each count. Gibson was additionally fined $20,000.

Marando’s case was severed during trial due to conflicts between his defense and that of the other defendants. He pleaded guilty to counts II through V, and the remaining counts were dimissed on a motion by the State. Marando was sentenced to concurrent terms of not less than one nor more than three years’ imprisonment on each count.

The appellate court consolidated the cases for review, and affirmed Marando’s conviction. With respect to the other defendants, it reversed and remanded the cause for a new trial due to prosecutorial misconduct. (86 Ill. App. 3d 858.) We granted leave to appeal to defendant Marando in cause No. 53827 and to the People in cause No. 53872.

The State raises one issue on appeal: Did prosecutorial misconduct prejudice the defendants and thereby make a fair trial impossible? In their cross-appeal, defendants Gibson, Whitlow and Delfino raise the following questions: (1) Was the grand jury process abused? (2) Should the indictment be held void? (3) Was the evidence insufficient to support the jury’s guilty verdict? In his separate appeal, Marando contends that the indictment was void because it failed to allege a necessary element of the securities law offenses. This issue was raised for the first time on appeal, but he asserts that it involves a jurisdictional defect and therefore can be raised at any time. Defendant Brewer died, and the appeal has been dismissed as to him.

Count I of the indictment charged defendants with conspiracy to violate the securities law. Counts II through V alleged various violations of the securities law. Defendants were charged in count VI with conspiracy to commit theft. Counts VII through XII alleged that defendants committed theft by deception in violation of section 16 — 1(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 16—1(b)(1)). The indictment basically alleged that, in selling stock in the Royal National Investment and Mortgage Corporation (Royal National), defendants made false statements and did not inform prospective purchasers of material matters relating to the company and the stock. All of the defendants were officers and directors of Royal National with the exception of Marando, who was a commissioned salesman. Gibson, a lawyer, served as corporate counsel.

The evidence disclosed that, subsequent to the incorporation of Royal National, Mar ando solicited purchasers of the company’s stock. The prospective purchasers were informed that the corporation intended to promote a sludge project, which involved the acquisition and transportation to the Bahama islands of processed wastes for use as fertilizer. Other corporate ventures included the training of Bahamians for employment, the establishment of a scholarship search program and the development of lithographic blankets.

The company’s stock sold at $1 per share, and most purchasers acquired 10,000 shares. A number of witnesses testified that they were informed the stock would go public in the near future and sell over the counter at $5 per share. In fact, the company dissolved in a few years without going public. Various witnesses also testified that defendants claimed they each invested $50,000 in the corporation, when in fact only $220 was contributed by one defendant.

Additional evidence showed that the corporation was financed almost solely by proceeds realized from the stock sales. Between March and July of 1973, over 60% of the money acquired was disbursed to the defendants, although they had claimed they received no salaries from the corporation.

Defendants Gibson, Whitlow and Delfino first contend, in their cross-appeal, that the grand jury process was abused because the sole witness appearing before the grand jury was unsworn. We disagree. The transcript does not indicate whether or not the witness was sworn. Therefore, this is not a case where it is clear that the grand jury was presented with unsworn testimony. There is a presumption that an indictment returned by a legally constituted grand jury is valid, and it is sufficient to justify a trial of the charge on the merits. (See People v. Jones (1960), 19 Ill. 2d 37, 43.) Defendants have indicated no circumstances which would overcome this presumption. They merely assert that the transcript fails to state the witness was sworn. In the absence of any evidence to the contrary, we must presume that the grand jury foreman properly administered the oath, as required by law. Ill. Rev. Stat. 1975, ch. 38, par. 112—4(c).

Defendants further assert that the grand jury process was abused because no evidence of criminal conduct was presented to the grand jury. A review of the grand jury transcript indicates that evidence was presented from which defendants’ illegal conduct could be inferred. Additionally, there are numerous cases to the effect that a court will not inquire into the adequacy of the evidence. (E.g., People v. Creque (1978), 72 Ill. 2d 515, 522.) If it were otherwise, “a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment.” Costello v. United States (1956), 350 U.S. 359, 363, 100 L. Ed. 397, 402, 76, S. Ct. 406, 408-09.

In their cross-appeal, defendants Gibson, Whitlow and Delfino raise a number of contentions which they assert require dismissal of the indictment. First, they allege that counts II through V of the indictment should have been dismissed because they fail to state an offense. Specifically, they claim that these counts fail to allege specific intent to defraud as an element of securities law violations.

The statute under which defendants were convicted provides, in relevant part:

“Sec. 12. Violation. It shall be a violation of the provisions of this Act for any person:
* * *
F. To engage in any transaction, practice or course of business in connection with the sale or purchase of securities which works or tends to work a fraud or deceit upon the purchaser or seller thereof;
G. To obtain money or property through the sale of securities by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading;
***
I. To employ any device, scheme or artifice to defraud in connection with the sale or purchase of any security, directly or indirectly.” Ill. Rev. Stat. 1973, ch. 121½, pars. 137.12(F), (G), (I).
“14. Sentence. ***
B. Any person who violates any of the provisions of sub-sections E, F, G, H, I, and J of Section 12 of this Act shall be guilty of a Class 4 felony.” Ill. Rev. Stat. 1973, ch. 121½, par. 137.14(B).

The State asserts that these provisions do not mention, and therefore do not require, any mental state on the part of individuals accused of violating the statute. Consequently, it is argued that the legislature intended that securities law violations be absolute liability offenses.

Section 4—9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 4—9) provides:

“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4 — 4 through 4 — 7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” (Emphasis added.)

Absolute liability cannot apply in this case since the offenses charged are felonies, unless the legislature clearly indicates the intent to impose it. The securities law provisions in question are silent as to the required mental state. However, it has been held that “[t] he mere absence of express language describing a mental state does not per se lead to the conclusion that none is required.” (People v. Valley Steel Products Co. (1978), 71 Ill. 2d 408, 424.) There is no indication that the legislature intended to impose absolute liability for securities law offenses. Indeed, the harshness of potential penalties for these violations militates against such a conclusion.

When the statute does not prescribe a mental state, and the offense does not involve absolute liability, “any mental state defined in Sections 4—4, 4—5 or 4—6 is applicable.” (Ill. Rev. Stat. 1973, ch. 38, par. 4-3(b).) These sections refer to intent, knowlege and recklessness. Therefore, it is necessary to determine which of these mental states should apply to securities law violations.

This court has not previously ruled on this issue. However, section 17 of the antifraud provisions of the Securities Act of 1933 (Act) (15 U.S.C. sec. 77q(a) (1976)) is closely analogous to the Illinois provisions and has been construed by the Federal courts. The Act provides:

“(a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly-
(1) to employ any device, scheme, or artifice to defraud, or
(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.”

Section 24 of the Act contains the applicable penalty provision and provides that “[a]ny person who wilfully violates any of the provisions of this title *** shall upon conviction be fined not more than $10,000 or imprisoned not more than five years, or both.” (Emphasis added.) 15 U.S.C. sec. 77x (1976).

A number of Federal cases have held that fraudulent or specific intent is necessary in order to obtain a criminal conviction under the Act. (See United States v. Vasilios (5th Cir. 1979), 598 F.2d 387, 392; United States v. Vandersee (3d Cir. 1960), 279 F.2d 176, 179.) However, the courts appear to require intent at least partly because the penalty provision in the Act employs the term “wilfully.” (See United States v. Brown (9th Cir. 1978), 578 F.2d 1280, 1283-84.) No such qualifying language appears in the comparable Illinois provision. Further, a recent case indicates that either recklessness or knowledge will sustain a conviction for securities fraud. United States v. Farris (9th Cir. 1979), 614 F.2d 634, 638.

In Aaron v. Securities & Exchange Com. (1980), 446 U.S. 680, 64 L. Ed. 2d 611, 100 S. Ct. 1945, a civil case, the Supreme Court addressed the issue of which mental state is required to enjoin violations of the Act. The court concluded that under section 77q(a)(l), scienter is an essential element of the offense. It was defined as “a mental state embracing intent to deceive, manipulate, or defraud.” (446 U.S. 680, 686 n.5, 64 L. Ed. 2d 611, 620 n.5, 100 S. Ct. 1945, 1950 n.5.) Although scienter was thus defined with reference to intent, the court indicated that the term also includes knowledge. “The language of section 17(a)(1), which makes it unlawful ‘to employ any device, scheme, or artifice to defraud/ plainly evinces an intent on the part of Congress to proscribe only knowing or intentional misconduct.” (Emphasis added.) (446 U.S. 680, 696, 64 L. Ed. 2d 611, 626, 100 S. Ct. 1945, 1955.) In fact, the court did not rule out the possibility that even reckless conduct may suffice for a conviction under the Act.

We adopt the reasoning of the Supreme Court and hold that scienter is an essential element of the offense under our analogous section 12(I) (Ill. Rev. Stat. 1973, ch. 121½, par. 137.12(I)). This term embraces intentional or knowing misconduct. Since the indictment in the instant case charged the defendants with knowing and deliberate violations, it did not fail to allege a necessary element of the offense.

With respect to the requisite mental state under sections 17(a)(2) and (3), analogous to our sections 12(F) and (G), the Aaron court concluded that scienter was not a necessary element of the offense. (446 U.S. 680, 697, 64 L. Ed. 2d 611, 626, 100 S. Ct. 1945, 1956.) Hence, proof of culpability is not required to sustain a conviction under those provisions. We find it unnecessary to determine whether a lesser mental state is applicable to sections 12(F) and (G). Defendants were charged with “knowingly” or “deliberately” committing the offenses, and knowledge is the most that would be required. Further, the jury instruction required that defendants be found guilty if they acted wilfully, knowingly, or deliberately. (See Tallman v. United States (7th Cir. 1972), 465 F.2d 282.) Therefore, the indictment is not void for failure to state the necessary elements of the offense charged.

This same reasoning applies to Marando’s separate appeal challenging the indictment. Having determined that the requisite mental state was alleged therein, we need not consider whether the defendant waived this issue by pleading guilty to the securities law counts.

Defendants Gibson, Whitlow and Del fino next contend that counts II through V of the indictment fail to state an offense because the alleged purchasers of the securities are not named therein. It has been held that where the gravamen of the offense is the unlawful act itself, the indictment need not identify the purchaser. (People v. Adams (1970), 46 Ill. 2d 200, 203.) Similarly, in a forgery case, where the elements of the crime were sufficiently alleged, it was held unnecessary to aver intent to defraud a specific person. (People v. Crouch (1963), 29 Ill. 2d 485, 489.) In the instant case, the elements of the offense were sufficiently alleged, and thus failure to name the purchasers is not fatal to the validity of the indictment.

Defendants further argue that counts IV and V should be dismissed because they are duplicitous. “Duplicity” has been defined as the joinder of separate offenses in a single count of the indictment. (People v. Ross (1961), 21 Ill. 2d 419, 420-21.) Specifically, defendants point out that sections 12(F) and (I) are phrased disjunctively. The indictment charging violations of these provisions is phrased in the conjunctive, as the word “and” is substituted for the term “or” which appears in the statute. This distinction does not render the counts duplicitous. “When a penal statute mentions several acts disjunctively and prescribes that each shall constitute the same offense and is subject to the same punishment, all or any of such acts may be charged conjunctively as constituting a single offense.” People v. Diekelmann (1937), 367 Ill. 372, 386.

Similarly, counts II and III of the indictment are not void for vagueness or duplicity. Defendants were sufficiently apprised of the charges against them, and it is unnecessary that each alleged misrepresentation and omission be set out as a distinct offense. The indictment did not lack the necessary certainty to charge an offense.

Finally, defendants assert that counts VII through XI should be dismissed because they fail to allege the means by which the thefts were committed. The counts in question charged defendants with theft by deception in the language of the statute. An indictment which charges an offense in the statutory language “is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.” (People v. Patrick (1967), 38 Ill. 2d 255, 258.) In the instant case, the statute clearly specifies the acts constituting the offense. (See People v. Kamsler (1966), 67 Ill. App. 2d 33.) Section 16—1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 16—1) provides, in part:

“A person commits theft when he knowingly:
** *
(b) Obtains by deception control over property of the owner; [and]
* * *
(1) Intends to deprive the owner permanently of the use or benefit of the property.”

The only potentially vague terms in the statute, “deception” and “obtains control,” are defined in sections 15—4 and 15—8 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 15—4, 15—8). Since the statute sufficiently defines the offense, the State need not allege specific acts indicating a violation of the statute. People v. Aud (1972), 52 Ill. 2d 368, 370; People v. Peters (1957), 10 Ill. 2d 577, 580.

The State contends, in its appeal, that any instances of prosecutorial misconduct which may have occurred during trial are insufficient to warrant a new trial. The first alleged instance of misconduct occurred during voir dire of the jury. Defendants expressed a concern that one of the accepted jurors, Mrs. Hicks, made certain misrepresentations at her voir dire examination. As a result, the court conducted a further examination of the juror in chambers. During the judge’s questioning, the prosecutor interrupted and stated: “I think it should be clear that it is not the People, Your Honor, asking these questions.” Mrs. Hicks was subsequently selected as forewoman of the jury. We agree with the defendants that this comment was an improper attempt to prejudice the juror against defendants. Apparently, the prosecutor made this statement to advise Mrs. Hicks that he was not responsible for her discomfort.

In his opening statement, the prosecutor informed the jury that the investors were told their money would partly be used to build condominiums. Seventeen of the State’s witnesses were investors in Royal National, and none of them testified about any possible condominium project. The only evidence adduced at trial which is at all related to the prosecutor’s statement was the testimony of witness Westercamp. He indicated that representations were made to him concerning the company’s desire to acquire money for mortgage purposes. According to Westercamp, reference was made to a housing project in the Bahama islands that might require mortgage money. This evidence, standing alone, is insufficient to support the State’s allegation.

Again in his opening statement, the prosecutor argued a fact upon which no evidence was produced. The State told the jury that the investors were not informed of certain matters which would have influenced their decision as to whether to purchase the stock. In this context, the prosecutor commented that “[t] hey [the investors] were never told that the one legitimate bill ever incurred by Royal National, a bill to send somebody to the Bahamas to see if some of these projects might be feasible, a bill for approximately $2,500, a bill amounting to not even one percent of the total income of Royal National never was paid and goes unpaid to this date.” The bill to which the State referred was due to Dr. Bauer, a consulting engineer, for his advice as to the feasibility of the sludge operation. The amount was $1,500, not $2,500. More importantly, evidence showed that this bill was incurred after the last shares of stock were sold. Thus, as defendants assert, they could not have informed prospective purchasers about a bill they had not yet incurred. For this reason, the prosecutor’s allegation was improper.

Defendants cite, as a further instance of misconduct, the State’s direct examination of its witness, Mr. Streeter. Marando allegedly made misrepresentations to Mr. and Mrs. Streeter. The State initially called Mrs. Streeter to the stand, and she testified at length as to the facts and circumstances of the alleged false statements. The State then conducted a direct examination of Mr. Streeter. His sole testimony was as follows:

“Yeah, I told him [defendant M aran do] I didn’t have the money to invest and I was strapped and then I started the story a few years before that I lost my daughter and I had an insurance policy on her since she was a little girl and she left two little girls and I had that $10,000 life insurance policy so I asked him if it was a good place to invest it for these two little girls and he said it was and so that is where the $10,000 went.”

Defendants moved for a mistrial or, in the alternative, that the testimony be stricken. The trial court denied both motions, though it admonished the prosecutor “to try and refrain from what verges on somewhat inflammatory testimony.”

The prejudicial effect of the quoted testimony outweighs any possible probative value. The State knew what the witness would say on direct examination, and the elicited testimony was clearly designed to inflame the jury. It has been held that “[i] t is improper for the prosecutor to do or say anything in argument the only effect of which will be to inflame the passion or arouse the prejudice of the jury against the defendant without throwing any light on the question for decision.” (People v. Dukes (1957), 12 Ill. 2d 334, 342-43.) This is equally applicable to the examination of witnesses.

Finally, defendants assert that the prosecutor made improper and prejudicial comments during his closing argument. One alleged prejudicial statement concerned the office space rented by Royal National. Evidence showed that in 1971 defendant Gibson rented the premises in question for use as his law offices. In May of 1973, Royal National shared the office space with Gibson, at which time the rent payments increased by approximately $400. With reference to the rental, the prosecutor stated:

“What about their offices? *** I won’t for a minute stand here and tell you that a company doesn’t need offices but I will tell you that when rent jumps $400 a month for the same space at 625 North Michigan Avenue in Chicago, something is wrong and you can look at the ledger sheets yourself and find out how much Truman Gibson was getting during the time he was associated with this company to pay his rent. Where was that extra $400 a month going? I submit to you it was going in Mr. Gibson’s pocket.” (Em- ' phasis added.)

It can hardly be disputed that the State inferred defendant Gibson committed theft. This allegation is totally unsupported by any evidence from which the inference could be derived. This error is compounded by the fact that the State had reason to know its allegation was false. There is evidence in the record that the State was informed the rental charge for the premises did not materially increase when Royal National commenced to share the office space with Gibson. Further, all rent payments were submitted by the company directly to the landlord, Tuesday Publications. Gibson received no money therefrom.

Prior to trial, defendants made motions in limine to prevent the State from inquiring into their past criminal activity and any unrelated pending charges. This motion was granted. Nevertheless, in its rebuttal argument, the State made questionable references to defendants’ backgrounds. With reference to Gibson, the prosecutor commented that “[m]aybe this time he will get caught.” (Emphasis added.) The inference is that Gibson swindled people on prior occasions and was not “caught.” Following this comment, the prosecutor stated: “How many other corporations was he using? How many other shareholders? How much more money was he taking ***?” With reference to defendants Whitlow and Delfino, the prosecutor made the following, comment: “They know that if you pay five hundred bucks to R. Wayne Everett and Company you can get a list of the people who have been taken before *** and you can tell them a bunch of stories and you know they will fall for it because they have fallen for it before.” Again, this comment implies that defendants had previously engaged in illegal conduct.

With regard to Gibson’s promotion of the sludge operation, the prosecutor stated:

“What this says I believe is that these projects were truly projects of Truman Gibson and had they gone anywhere at all, the shareholders of Royal National might as well have jumped in the Mississippi River because Truman Gibson was going to be on the gravy train and they were going to have to sit around and split up shares of a company that had been dissolved in 1974.”

The quoted comment involves an expression of the prosecutor’s own belief. This court has consistently held that it is improper for the prosecutor to express his own opinion as to the defendant’s guilt. (E.g., People v. Monroe (1977), 66 Ill. 2d 317, 324.) Further, this comment, as well as other cited statements made by the prosecutor, was not based upon any evidence. A “fact not based upon evidence in the case may not properly be argued to the jury ***.” People v. Beier (1963), 29 Ill. 2d 511, 517.

Reversible error exists where there are reasonable grounds for believing the jury was prejudiced by the improper remarks. (People v. Allen (1959), 17 Ill. 2d 55, 63.) In light of the numerous instances of misconduct which occurred throughout the trial, it is unnecessary to assess the prejudicial effect of each isolated comment. We find that the cumulative impact of the statements may well have prejudiced the jury and constituted a material factor leading to the defendants’ convictions. Under these circumstances, defendants Whitlow, Gibson and Delfino are entitled to a new trial. See People v. Dukett (1974), 56 Ill. 2d 432, 443.

The State asserts that we should not consider many of these alleged instances of misconduct because the defendants failed to make timely objections to the comments. When a defendant fails to object at trial, any errors in the proceedings are ordinarily deemed waived. (People v. Jackson (1981), 84 Ill. 2d 350, 358.) However, this rule is not absolute. A reviewing court may consider errors which affect substantial rights (73 Ill. 2d R. 615(a)), or which, as in this case, are sufficiently prejudicial to deny defendant a fair trial. (People v. Sullivan (1978), 72 Ill. 2d 36, 42.) Further, defendants did make timely objections to many of the improper comments.

The State next contends that, even if the comments were prejudicial, they constituted harmless error in light of the overwhelming evidence of the defendants’ guilt. It has been held that improper comments may warrant a reversal of the conviction, even where there is considerable evidence against the accused. (See 72 Ill. 2d 36, 44; People v. Weathers (1975), 62 Ill. 2d 114, 120.) This is especially true where many of the remarks were extremely prejudicial, deliberately made, and the primary evidence against defendants was circumstantial. See 72 Ill. 2d 36; 62 Ill. 2d 114.

Finally, the State asserts that most of the prejudicial statements were directed solely at defendant Gibson; therefore, the other defendants should not be entitled to a new trial. We disagree. The defendants were tried jointly on both conspiracy and substantive charges, and an “accountability” instruction was tendered to the jury. Thus, the State’s theory involved the responsibility of each defendant for the acts of his codefendants. Under these circumstances, improper remarks directed at one defendant were likely to be considered by the jury as evidence against all of them. Further, certain comments made by the prosecutor were directed at each of the defendants.

The final issue raised by defendants Gibson, Whitlow and Delfino is whether the evidence was totally insufficient to support the jury’s guilty verdict. It is necessary to review this question since the cause will be remanded for a new trial. (See People v. Taylor (1979), 76 Ill. 2d 289, 309.) Defendants allege that the evidence was insufficient because it was entirely circumstantial and did not exclude every reasonable hypothesis of innocence. However, there was some direct evidence presented against each defendant. Whitlow and Del fino allegedly made numerous misrepresentations to a number of witnesses. Gibson attended stockholder meetings at which he introduced speakers, some of whom provided the investors with false information. He did nothing to correct or clarify false statements made in his presence. In addition, all defendants drew salaries from the corporation, contrary to representations made to the shareholders. Thus, our review of the record indicates that there was sufficient evidence upon which the jury could conclude, as it did, that the defendants were guilty.

For the reasons stated herein, the judgment of the appellate court, affirming Marando’s conviction and reversing and remanding for a new trial for defendants Whitlow, Delfino and Gibson, is affirmed.

Judgment affirmed.

JUSTICE UNDERWOOD,

dissenting:

The defendants were found guilty of all charges in a 12-count indictment at the conclusion of a lengthy and complex trial in which the evidence of guilt is overwhelming. I cannot agree with the majority opinion which now reverses those convictions on the basis of alleged prosecutorial misconduct consisting of isolated comments, most of which were unobjected to, and many of which were legitimate inferences with substantial evidentiary support. Unfortunately, my reasons for dissenting cannot be adequately stated in other than extended form.

Most of the allegedly improper remarks occurred during the State’s rebuttal argument. Of the many rebuttal remarks cited by the majority as error, the only one preserved for review by timely objection concerned Royal National’s rental arrangements and the prosecutor’s allegation that $400 a month was “going in Mr. Gibson’s pocket.” The majority states that the allegation is “totally unsupported” by any evidence (89 Ill. 2d at 340), and that the error is compounded because there is evidence in the record which shows the State had reason to know its allegation was false. The evidence to which the majority refers is an affidavit of W. Leonard Evans, president of Gibson’s landlord, Tuesday Publications, which was submitted after trial in support of defendant Gibson’s post-trial motion. Evans states that the rental payments for Gibson’s law office did not materially increase when Royal National began to share the space, and that he informed a representative of the State of this fact prior to trial. He further states that had he been asked he would have denied the allegation that Gibson received any portion of the rent paid by Royal National. In contrast to Evans’ statement, the ledger sheets of Tuesday Publications, stipulated into evidence, at all times show Gibson as the sole tenant, but conclusively demonstrate that the rental payments increased more than $350 a month when Royal National also began to use Gibson’s law office. During the period when the space was shared, Royal National paid the entire rent, approximating $625 per month. When Royal National ceased sharing the space, the rent which Gibson resumed paying returned to approximately $275 per month. Evans claimed, however, that the rent was always $600 per month, and his explanation regarding the discrepancy was that Gibson could not afford to pay the entire $600 per month when he had to pay his own rent, and because of his past relationship with the company, he was allowed to pay a lesser amount with the understanding that he would pay the deficiency when he was financially able to do so.

The irregular rent pattern lends support to the prosecutor’s assertion that something was amiss. Although the State’s allegation was refuted in part by Evans’ post-trial affidavit, I am not convinced that the State was required to accept Evans’ unlikely explanation of the irregularity in the payments, particularly in view of the fact that Gibson had been counsel for Tuesday Publications and his testimony was somewhat to the contrary. He stated that while his rent did not increase, “The rent for Royal National went up.” Despite Evans’ denial that Gibson received any portion of the rent payments, it is clear that Royal National paid Gibson’s entire law office rent during the time it shared his office, and the amount was in excess of $400. Thus, while Gibson may not have been literally “pocketing” $400 a month, he was literally benefiting by more than $400 a month during the period that Royal National shared his law office. In view of this, it seems to me that the majority’s reference to the prosecutor’s allegation as “totally unsupported by any evidence from which the inference could be derived” (89 Ill. 2d at 340) is simply not true.

The majority also characterizes as unsupported by any evidence and an improper statement of personal belief the prosecutor’s comment that it was Gibson, not the corporation, who would have benefited had the sludge project been successful. Although Gibson introduced evidence that showed he had spent considerable time and effort promoting the sludge project, there was also considerable evidence that he was acting on his own behalf rather than for the benefit of Royal National. As the appellate court noted, the jury was presented with the factual question as to how much, if any, of Gibson’s activities relating to the sludge project were performed on behalf of Royal National.

During Gibson’s attorney’s closing argument he asked whether Gibson would have been reporting to the shareholders on the progress of the projects if he was really acting on his own behalf or keeping it all for himself. He also reviewed the evidence which showed the time and effort Gibson devoted to the sludge project. In rebuttal the prosecutor made the following comment:

“Counsel has again brought out that Mr. Gibson worked on these projects before Royal National and he worked on them after Royal National. What this says I believe is that these projects were truly projects of Truman Gibson and had they gone anywhere at all, the shareholders of Royal National might as well have jumped in the Mississippi River because Truman Gibson was going to be on the gravy train and they were going to have to sit around and split up shares of a company that had been dissolved in 1974.”

There was no objection. To hold, as the majority does, that this statement was without any evidentiary support is patently incorrect. Further, it clearly was not intended as an expression of personal belief but only as a statement of the inferences which the prosecutor believed might be drawn from the evidence. The statement does not even remotely resemble those which this court has held improper. For example, in the only case cited by the majority as authority for its holding, People v. Monroe (1977), 66 Ill. 2d 317, 323, the prosecutor charged that defense counsel’s closing argument was “fraudulent” and that one portion was “the biggest fraud of all.” He further stated:

“That is a preposterous defense. I have never heard of a weaker defense in five years of practicing in criminal law. Do you know why I can’t believe it? Because Mr. Olivero [defense counsel] doesn’t believe it himself.” (66 Ill. 2d 317, 323.)

In People v. Hoffman (1948), 399 Ill. 57, 65, the State’s Attorney stated, “If I had one slightest reasonable doubt about Stanley Hoffman’s guilt upon my words as a man and as an American, as a father and grandfather, I would say I do not believe he is guilty and I would dismiss this case. But, I know all the facts in this case as you know various people.” Similarly, in People v. Black (1925), 317 Ill. 603, 619, “Twice the State’s attorney told the jury that he would not ask them to send defendants to the penitentiary if he and his associate were not positive of their guilt.” Finally, in People v. King (1916), 276 Ill. 138, 154, the State’s Attorney made the following statement in his closing argument:

“I am not in the habit of prosecuting innocent men. It has not been a rule of my office. If the defendant were not guilty he would not be on trial in this court. I know him to be guilty. I am in possession of facts that convince me of his guilt.”

As these cases demonstrate, it is improper for the prosecutor to express his own opinion or belief of a defendant’s guilt, in part because by doing so he effectively makes himself a witness without the opportunity of being cross-examined. But it is entirely proper for the prosecutor to comment on a defendant’s guilt where the comment is based on the evidence (People v. Black (1925), 317 Ill. 603, 619; see also People v. Jackson (1981), 84 Ill. 2d 350, 360), and it is well established that “ ‘[s] tatements of counsel and argument based upon facts and circumstances proved, or upon legitimate inference therefrom, do not exceed the bounds of proper debate and are not to be discountenanced by the courts.’ ” (People v. Burnett (1963), 27 Ill. 2d 510, 517, quoting People v. Miller (1958), 13 Ill. 2d 84, 109; see also People v. Beller (1979), 74 Ill. 2d 514, 526; People v. Williams (1968), 40 Ill. 2d 522, 528; People v. Ostrand (1966), 35 Ill. 2d 520, 531-32.) The quoted comment in this case was not an expression of the prosecutor’s own belief; it was a legitimate rebuttal argument based upon the evidence.

With respect to defendants Whitlow and Delfino, the prosecutor made the comment in rebuttal: “[T] hey know that if you pay five hundred bucks to R. Wayne Everett and Company you can get a list of the people who have been taken before *** and you can tell them a bunch of stories and you know they will fall for it because they have fallen for it before.” Again, no objection was made. The majority cites this as improper argument because it implies that defendants had previously engaged in illegal conduct. The court also' apparently concludes that the comment was not based upon any evidence. First, I do not agree that, in the context in which it was made, it implied previous illegal conduct; second, there was evidence in the record that supported this statement.

Patrick Wilson, one of the State’s witnesses, testified that Delfino came to his home and invited him to Royal National’s East Moline office to discuss the possibility of Wilson working for the firm. He later met with Delfino at his office and discussed sales efforts. He stated that Delfino showed him “lead lists,” secured from Wayne Everett of the Everett brokerage firm, and that Delfino told him that the people on the list were people who had been known to invest money.

Carl ICran, an investor, testified that he received a letter from Wayne Everett and Company advising him that a Mr. Delfino of Royal National would be calling him to discuss a possible investment opportunity. The letter was admitted into evidence. On cross-examination by a defense attorney, ICran testified he had previously invested in a land deal with R. Wayne Everett. On redirect examination by the State, Kran stated that he never recouped his investment.

Further evidence introduced by the State included a check from Royal National to Wayne Everett in the amount of $500. Thus, another allegedly improper comment, made without objection, had evidentiary support. Viewed in context, the prosecutor did not imply that defendants had previously engaged in illegal conduct. Rather, the inference was that Everett and Company had a list of people who had previously invested in questionable deals, and that the defendants were able to obtain those names for a $500 fee.

I agree the prosecutor’s questions about other corporations and shareholders Gibson was using, and the remark, “[M]aybe this time he will get caught,” were improper. Nevertheless, there was no objection, and the error here was not so substantial as to constitute “plain error.” (People v. Jackson (1981), 84 Ill. 2d 350, 360.) Nor was the evidence so “closely balanced” as to justify our review of this error. (People v. Carlson (1980), 79 Ill. 2d 564, 576.) With the exception of the comment concerning the rental arrangement, none of these allegedly improper remarks were even brought to the trial court’s attention until after the jury had been instructed and retired to deliberate.

During the in-chambers voir dire of one of the jurors, Mrs. Hicks, the prosecutor made the improper statement: “ [I] think it should be clear that it is not the People, Your Honor, asking these questions.” Thereafter, while the defense attorneys expressed their displeasure with the prosecutor’s comment, none objected to Mrs. Hicks’ continued presence on the jury, despite the fact that two alternate jurors had yet to be chosen. No one expressed the view that Mrs. Hicks could no longer be an impartial juror. (Cf. People v. Harris (1979), 74 Ill. 2d 472, 474-75 (the trial judge did not abuse discretion in failing to discharge a juror on defendant’s motion because of the alleged prejudicial effect of the trial court’s in-chambers remarks to- a juror).) Only after the guilty verdicts were returned and the defense attorneys learned that Mrs. Hicks had been chosen as forewoman did the matter ever come up again. Hence, the issue is waived. See People v. Ford (1960), 19 Ill. 2d 466, 478-79; People v. Adams (1954), 4 Ill. 2d 453, 458; see also Cummings v. Chicago Transit Authority (1980), 86 Ill. App. 3d 914, 919; Allen v. Dorris (1974), 16 Ill. App. 3d 980, 983-84.

In the prosecutor’s opening statement he made two comments which the majority holds objectionable because of the subsequent failure to produce evidence. One such comment was that the investors were told their money would partly be used to build condominiums. As the majority points out, however, one of the State’s witnesses testified that he was told of the company’s desire to acquire mortgage money for a housing project in the Bahamas. Recently, we held that an opening argument can include a discussion of matters that may reasonably be inferred from the evidence. (People v. Warmack (1980), 83 Ill. 2d 112, 125-26 (opening arguments need not be limited to a discussion of direct evidence; “[s]ufficient evidence was presented from which the jury could reasonably infer that defendant owned the clothing, and such circumstantial evidence was sufficient to support the assertions of the prosecutor in his opening argument”).) I cannot believe that the slight variance between what was said on one point in the opening statement and the actual evidence was of any consequence in this trial. (Cf. People v. Allen (1959), 17 Ill. 2d 55, 63 (prosecutor’s reference in his opening statement to an admission by defendant was not reversible error despite the lack of such evidence).) Moreover, this particular point was not raised in any of the. defendants’ post-trial motions and has been waived. 73 Ill. 2d R. 366(b)(2)(iii); People v. Adkisson (1980), 83 Ill. 2d 1, 7; People v. Tannenbaum (1980), 82 Ill. 2d 177, 181; People v. Foster (1979), 76 Ill. 2d 365, 380.

The prosecutor also informed the jury in his opening statement that the investors were not told that the one legitimate bill incurred by Royal National was not paid. As the majority notes, this allegation was improper because the bill was incurred after the last shares of stock were sold. Nevertheless, the prosecutor cited numerous misrepresentations and omissions by defendants that would have influenced an investor’s decision on whether to purchase stock, and considerable evidence was produced in support thereof. Further, the jury heard the actual evidence which disclosed when this bill was incurred. Thus, the reference in the opening statement to the unpaid bill the investors were not told about was not reversible error. See People v. Allen (1959), 17 Ill. 2d 55, 63.

Nor do I believe that Perry Streeter’s testimony justifies a reversal. Considering all of the evidence in this lengthy record, and the number of witnesses who testified concerning the defendants’ misrepresentations, the Streeter testimony could not, in my opinion, have been a material factor in the conviction of these defendants. (People v. Dukett (1974), 56 Ill. 2d 432, 444, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226.) Some 23 witnesses testified on behalf of the State. Their testimony, together with the voluminous documentary and other evidence, overwhelmingly established defendants’ guilt. Contrary to the representations made to the investors that each defendant had contributed $50,000 in corporate capital, the largest such contribution was $220. Despite their assertions that no salaries were being paid them, more than 60% of the money invested by the victims was disbursed to defendants in the form of salaries and expenses. Numerous other misrepresentations and failures to disclose were testified to as occurring prior to and during Royal National’s brief existence. In sum, I simply cannot believe that this verdict could have been otherwise had any of the other alleged errors not occurred. People v. Jackson (1981), 84 Ill. 2d 350, 360.

I would affirm the convictions of all defendants.

JUSTICE SIMON joins in this dissent.


source: Caselaw Access Project

author: JUSTICE MORAN

license: Public Domain

text:
    (No. 54756.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GARY M. WILLINGHAM, Appellee.

      Opinion filed February 2, 1982.
    Rehearing denied March 25, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and John A. Barra, State’s Attorney, of Peoria (Herbert L. Caplan, Melbourne A. Noel, Jr., and Darrell Panethiere, Assistant Attorneys General, of Chicago, and John X. Breslin and Gerry R. Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Verlin R. F. Meinz, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Peoria County acquitted defendant, Gary Willingham, of two counts of murder but convicted him of attempt (armed robbery) and sentenced him to a determinate term of 15 years in the Department of Corrections. The appellate court reversed the judgment of conviction, holding that the evidence corroborating defendant’s confession to attempted armed robbery was insufficient to support his conviction of that offense. (92 Ill. App. 3d 1101.) The issues on appeal are: (1) Was defendant’s confession sufficiently corroborated to sustain defendant’s conviction of attempted armed robbery? (2) Were defendant’s statements to the police fruits of an illegal arrest? and (3) Did defendant’s sentence constitute an abuse of discretion by the trial court?

Defendant testified to the following events at trial (a previous trial ended in a mistrial). On the evening of June 4, 1979, Glenn Patton visited defendant at his apartment, which he shared with Mary Jamison. Patton informed defendant that he, along with David Thomas, was going to steal drugs from Gregory Sargent in retaliation for Sargent’s sexual advances toward Betty Balestri. Defendant told Patton he wanted no part of such a plan. Patton and defendant then left the apartment and drove in separate cars to the home of a friend, Tracy Lorenz, left there after a short visit, then drove separately to the apartment of David Thomas. Defendant drove a gold Camaro he borrowed from Mary Jamison. According to defendant, Patton and Thomas discussed stealing drugs from Sargent. Defendant stated, as he had done earlier in his apartment, that he was unwilling to participate in the scheme and left Thomas’ apartment alone, driving the gold Camaro. He testified that he went to see Sargent, a friend, in an attempt to resolve the Balestri situation. On his way from the parking lot to Sargent’s apartment, he passed William Lininger. Defendant stated that he was in Sargent’s living room discussing the matter when a knock sounded at the door. He heard a “bump” and a shot and subsequently discovered Sargent lying in the hall. He added that he became scared, ran downstairs and out of the building, where he encountered Patton and Thomas in the parking lot, whereupon the three of them left in Patton’s car. According to defendant, Patton stated that Thomas had shot Sargent. Thomas said it was an accident, and the two of them convinced defendant to dispose of the .32-caliber gun with which Sargent was shot.

William Lininger testified that in the late evening of June 4, 1979, he saw a gold or rust-colored Firebird or Camaro enter the parking lot of the Green Briar Apartments, where he and Sargent resided. Lininger then went outside and passed a black male walking from the parking lot to the apartment building, and they exchanged pleasantries about the weather. Subsequently, he observed two black males, one of whom he testified was the same man he saw earlier, exit the building, look up at some windows, and reenter the building. A short time later, Lininger heard a “pop noise” and saw two black males, whom he could not recognize, running from the building. Lininger then entered the building, at which time he observed a van pull into the parking lot. A young white male left the van and went into the building. Shortly thereafter, this same man ran outside, talked to the driver of the van, then came back inside and told Lininger that Sargent had been hurt. At that point, Lininger saw the victim lying in the hallway and he called the police.

One of the responding officers found a .32-caliber casing and a safety mechanism near the victim. A search of the Camaro automobile revealed only, after a license plate check, that its owner was Mary Jamison. Another officer who arrived at the scene was told by the victim, Sargent, that he opened his apartment door and was shot by two men wearing stockings over their heads. The officers discovered various drugs at the scene, but found no prints of defendant.

On June 5,1979, Lininger disclosed to police essentially the same information he subsequently related at trial. On the morning of June 9, police visited Mary Jamison at her apartment. She told them defendant left in her gold Camaro on the evening of June 4, and that he had not returned it until early the next morning. She further stated that she discovered a nylon stocking, knotted at the top, when the car was returned. Jamison also said that defendant owned a gun that looked like the .25 automatic in a picture shown to her by the police. Officer Haskins, one of the policemen who visited Jamison, testified at the suppression hearing that when the police were at the Jamison apartment she told them defendant might have placed the gun in his waistband on Monday, June 4.

At approximately 12:45 p.m., following the visit with Jamison, police effected a warrantless arrest of defendant outside his apartment. Shortly thereafter, a consent search of the gold Camaro revealed a nylon stocking and a pair of men’s pants with blood on the right pocket. At a lineup later that afternoon, Lininger was unable to identify defendant as the man he saw on the night of the offense. Later that evening, after being given his Miranda warnings, defendant agreed to speak to the officers. He first denied any involvement, but then stated that he was visiting Sargent on the night of June 4 when the victim answered his door and a “bump” and shot followed, whereupon he panicked and ran to the home of Tracy Lorenz.

On June 10,1979, upon further interrogation, defendant offered the following confession. He stated that Patton, Thomas and he planned to rob Sargent of cocaine in retribution for Sargent’s sexual advances toward Balestri. Defendant was to knock on the door and when the victim opened it, defendant would be knocked down by his companions, who would then rob the victim using an unloaded gun. Defendant stated he had disposed of the gun in a nylon stocking. The gun was ultimately discovered by the police with defendant’s assistance. At trial, defendant attributed the confession to his being tired and his belief that the police would not otherwise “leave [him] alone.”

We note that the State, in the appellate court, argued that defendant had waived the question of whether the confession was corroborated because of the defendant’s failure to include it in his motion for a new trial. The appellate court ruled against the State on the issue under authority of Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)). However, the State has not raised the waiver issue in its petition for leave to appeal or in its briefs before this court. Accordingly, we will discuss the merits of the corroboration of defendant’s confession.

The State argues that the independent evidence corroborated defendant’s confession, thereby demonstrating its truthfulness. It further maintains that the corpus delicti can be established, and the confession rendered trustworthy, even in the absence of independent evidence that a crime occurred. We disagree. A careful reading of the cases reveals that in order to establish the corpus delicti and the necessary trustworthiness to corroborate a confession, there must be some evidence, exclusive of the confession, tending to show that a crime did occur. It is axiomatic that, in order for a conviction based on a confession to be sustained, the confession must be corroborated. (E.g., People v. Holmes (1977), 67 Ill. 2d 236, 240, citing People v. Norcutt (1970), 44 Ill. 2d 256, 263; People v. Melquist (1962), 26 Ill. 2d 22, 28.) The corroboration requirement stems from an attempt to assure the truthfulness of the confession and recognizes that the reliability of a confession “may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past.” Smith v. United States (1954), 348 U.S. 147, 153, 99 L. Ed. 192, 199, 75 S. Ct. 194, 197. Accord, People v. O’Neil (1960), 18 Ill. 2d 461, 464.

In this State, the corroboration requirement is satisfied by proof of the corpus delicti. The corpus delicti is not required to be proved beyond a reasonable doubt exclusively by evidence independent of the confession, nor must it be established by evidence other than that which tends to connect the defendant with the crime. (People v. Perfecto (1962), 26 Ill. 2d 228, 229; People v. O’Neil (1960), 18 Ill. 2d 461, 463; People v. Lueder (1954), 3 Ill. 2d 487, 488.) Although various criteria have been set forth for what is necessary to establish the corpus delicti, we believe the most precise explanation was given in People v. Perfecto (1962), 26 Ill. 2d 228, 229, where this court stated:

“ ‘The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. (People v. Borrelli, 392 Ill. 481.) The same evidence may be used to prove both the existence of the crime and the guilt of the defendant, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. People v. Brown, 379 Ill. 262.’ People v. Gavurnik, 2 Ill. 2d 190, at 194.” (Emphasis added.)

Thus, in establishing the corpus delicti, there must be some evidence, apart from the confession, demonstrating that a crime occurred. Once the required showing has been made, the circumstances along with the confession may be considered in determining whether the corpus delicti is sufficiently proved (as well as the guilt of the defendant). Accord, McCormick, Evidence § 158, at 346-47 (2d ed. 1972).

Both parties make a reference to a two-prong test whereby a conviction based upon a confession will be upheld if independent evidence (1) shows a crime did occur, or (2) corroborates or bolsters the circumstances in the confession. We acknowledge the statement made in several cases that if there is corroborating evidence that tends to confirm the circumstances related in the confession, both can be considered in determining whether the corpus delicti is sufficiently proved in a given case. (E.g., People v. Melquist (1962), 26 Ill. 2d 22, 28-29; People v. O’Neil (1960), 18 Ill. 2d 461, 463-64; People v. Gavurnik (1954), 2 Ill. 2d 190, 194.) However, this statement does not obviate the requirement that either some independent evidence or the corroborating evidence tend to establish that a crime occurred. In the above-cited cases, the corroborating evidence did, in fact, tend to prove that a crime occurred and was properly considered along with the confession in determining that the corpus delicti was sufficiently proved.

We note that in People v. Norcutt (1970), 44 Ill. 2d 256, this court, in determining whether the crimes to which defendant confessed were committed by the defendant, stated that it was sufficient if the other evidence in the case tended to show that a crime did in fact occur or tended to corroborate the confession. It was not stated, however, that either factor by itself was sufficient to establish the corpus delicti. In view of the narrow issue to which the statement was addressed, we interpret the comment to mean that either factor was sufficient to connect defendant to the offense, a requirement that must be satisfied in addition to the corpus delicti in order to support a conviction. See People v. Perfecto (1962), 26 Ill. 2d 228, 229; McCormick, Evidence § 158, at 347-48 (2d ed. 1972).

The necessity of showing that a crime did occur in establishing the corpus delicti is illustrated by People v. O’Neil (1960), 18 Ill. 2d 461, a case involving an arson confession, which was cited by People v. Norcutt for the proposition that it is sufficient for a conviction if other evidence in the case tends to corroborate the confession. In O’Neil, this court stated:

“Experience has shown that untrue confessions may be given to gain publicity, to shield another, to avoid apparent peril, or for other reasons, and because of this, the law demands corroborating proof that a crime did in fact occur before the individual is punished therefor. However, once this proof has been acquired, no further reason exists for ignoring a confession when considering whether the corpus delicti has been established.” (Emphasis added.) 18 Ill. 2d 461, 464.

Similarly, in People v. Lueder (1954), 3 Ill. 2d 487, this court, in holding that the corpus delicti of arson was not established, remarked, “[I]t may be seen that the independent evidence tends to establish only that a building burned. There is nothing, save the confession alone, which suggests or tends to corroborate the element that some person wilfully fired the building.” 3 Ill. 2d 487, 489.

In summation, if the independent evidence tends to prove that an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered along with the confession in establishing the corpus delicti. In such event, the independent evidence need not establish beyond a reasonable doubt that an offense did occur.

Section 8—4(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1977, ch. 38, par. 8—4(a)) provides:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.”

Section 18—2(a) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 18—2(a)) provides:

“A person commits armed robbery when he [takes property from the person or presence of another by the use of force or by threatening imminent use of force] while armed with á dangerous weapon.”

Defendant argues that there is no independent evidence that an offense occurred and that the independent evidence did not sufficiently corroborate the confession. The record discloses that defendant, himself, testified that Patton told him he and Thomas were going to rob the victim. After purportedly expressing his objection, defendant still accompanied Patton to Thomas’ apartment. Following more discussion concerning the robbery, to which defendant again purportedly expressed his disagreement, defendant drove to the victim’s apartment in the gold Camaro. Lininger testified that he observed a gold Camaro or Firebird enter the parking lot and he saw a man walking from that area toward the building. The man passed him, at which time they spoke briefly about the weather. Defendant admitted this occurrence. Lininger testified that shortly thereafter, during which time he did not see anyone else enter the apartment building, the man whom he had passed came out of the building with another man. The former stood by the doorway while the latter walked to the end of the building and looked up at some windows. The two then reentered. Lininger then heard a “pop noise” and observed two men fleeing. Eventually, the .32-caliber gun that fired the fatal shot was recovered with defendant’s assistance, wrapped in a nylon stocking.

Defendant’s going to the apartment of the intended victim after a robbery was discussed constituted a substantial step, and the above-related independent evidence tended to show that defendant took this substantial step with the intent to commit an armed robbery. Any alleged discrepancies between the independent evidence and the circumstances related in the confession, such as the victim speaking of two men, not three, and Lininger observing two men fleeing, rather than three, did not necessarily create inconsistencies.

From our review, we find that independent evidence tended to show that an offense occurred. Further, the record reveals that the same evidence corroborated the facts contained in defendant’s confession. We hold that the corpus delicti was established and it was not error for the trial court to admit the confession.

Defendant next argues that his statements should have been suppressed as fruits of an illegal arrest. To support that argument he asserts that police had no probable cause for his arrest. This court has held that probable cause exists “when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.” (People v. Robinson (1976), 62 Ill. 2d 273, 276; People v. McCrimmon (1967), 37 Ill. 2d 40, 43.) In determining if probable cause existed, this court has also stated: “‘Whether or not probable cause for an arrest exists in a particular case depends upon the totality of the facts and circumstances known to the officers when the arrest was made. [Citations.] In deciding the question of probable cause in a particular case the courts deal with probabilities and are not disposed to be unduly technical. These probabilities are the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. [Citations.]’” (People v. Robinson (1976), 62 Ill. 2d 273, 276-77, quoting People v. Clay (1973), 55 Ill. 2d 501, 504-05.) Moreover, we will not disturb the trial court’s finding of probable cause unless that finding is manifestly erroneous. People v. Clay (1973), 55 Ill. 2d 501, 505.

Prior to the time of defendant’s arrest on June 9, as previously related, the police knew that Sargent had been shot and died, that Lininger saw a gold Camaro arrive at the apartment complex where the offense occurred, that a black male walked into the building from the area where the Camaro was parked, that two men, one of whom may have been the man he first saw enter the building, came out of the building, then reentered the building, and that a shot followed. The victim, Sargent, told police he had been shot by two men wearing nylon stocking masks. Upon locating the owner of the Camaro they were told that, on the night of the offense, she had lent the Camaro to defendant, who did not return it until early the next morning. She told police that when the Camaro was returned she found a nylon stocking knotted at the top inside the automobile. She also told police that defendant owned a gun similar to a .25-caliber gun and that he might have taken it with him when he left on the night of the offense. Following the receipt of this information, the police arrested defendant. We believe the record clearly reveals that the police had a reasonable belief that an offense had been committed and that defendant was involved in its commission. The trial court’s finding of probable cause was not contrary to the manifest weight of the evidence and will not be disturbed.

Defendant’s final argument on appeal is that the trial court abused its discretion in sentencing defendant to 15 years’ imprisonment. A reviewing court may intervene only upon a showing that the trial court abused the sentencing discretion entrusted to it. (People v. Cox (1980), 82 Ill. 2d 268, 275; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) The trial court is the appropriate forum to determine a suitable sentence, and the trial judge’s decisions with regard to sentencing must be accorded great deference and weight. (People v. La Pointe (1981), 88 Ill. 2d 482, 492-93; People v. Perruquet (1977), 68 Ill. 2d 149, 154.) Our review indicates that the trial court considered factors in mitigation and aggravation. We note that the 15-year sentence was within the proper range. (See Ill. Rev. Stat. 1979, ch. 38, pars. 8—4(c)(2), 18—2(b), 1005—8—1(a)(4).) An extended-term sentence was not imposed. The record reveals that at the time of this offense, the defendant was on parole for a previous armed robbery and the instant sentence was to be served concurrently with the former conviction. Under these circumstances, we hold that the trial court did not abuse its discretion.

For the above-stated reasons, the judgment of the appellate court is reversed and the circuit court’s judgment is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 54635.
    THE PEOPLE ex rel. WILLIAM J. SCOTT, Attorney General, Appellant, v. SCHWULST BUILDING CENTER, INC., et al., Appellees.

      Opinion filed February 2, 1982.

      Rehearing denied March 25, 1982.

      UNDERWOOD, J., took no part.
    Tyrone C. Fahner, Attorney General, of Springfield (Thomas M. Genovese, Thomas J. DeMay, and Bruce J. Baker, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    John P. Schwulst, of Arnold, Gesell, Schwulst & Stevens, of Bloomington, for appellees.
   JUSTICE MORAN

delivered the opinion of the court:

The circuit court of McLean County granted the motion of defendants, Schwulst Building Center, Inc., Carl F. Schwulst, Jr., and Warren W. Schwulst, to dismiss with prejudice an action brought by the Attorney General of Illinois (State) arising under section 3(4) of the Illinois Antitrust Act (Act) (Ill. Rev. Stat. 1979, ch. 38, par. 60—3(4)). The appellate court, in a two-to-one decision, held that section 3(4) does not apply to land and affirmed the dismissal of the complaint insofar as it was brought under section 3(4) of the Act. However, it reversed the trial court’s order of dismissal with prejudice and remanded the case to allow the State to amend its complaint. 92 Ill. App. 3d 552.

The primary issue before us is whether section 3(4) of the Act applies to land. As a corollary issue, we must determine if that section mandates application of the so-called “per se” test.

The facts were adequately related by the appellate court. To summarize, the record reveals that defendants own or control many single-family building lots in the Bloomington-Normal area. They are also engaged in selling building materials to contractors and home builders in the same area. Defendants sold some of the materials as a package, consisting principally of preassembled roof trusses, floor trusses, exterior and interior walls, and exterior trim. The State filed suit, alleging that the purchase of a building lot was conditioned upon the purchase of a package of building materials to be used in the same lot, thereby violating section 3(4) of the Act.

The original complaint was filed on February 16, 1977. Defendants’ motions to dismiss under sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48) were allowed with leave to plead over. The amended complaint, which is at issue here, was filed July 29, 1977. Motions to dismiss were denied. On November 17, 1977, defendants filed a demand for a bill of particulars, which was allowed by the trial court. Plaintiff filed the bill of particulars, and defendants filed a motion to strike the same. The trial court allowed the motion to strike with leave to amend. Plaintiff filed an amended bill of particulars, after which defendant filed a motion to strike the amended bill and also to dismiss the action with prejudice. On March 25, 1980, the trial court granted defendants’ motion, stating only that the amended complaint did not state a cause of action and the bill of particulars did not reasonably answer the questions posed by the defendants. As indicated above, the appellate court majority concluded that section 3(4) of the Act does not apply to land and that the State, therefore, would be unable to state a cause of action under that section. The court found, however, that it does not follow that plaintiff could not state a cause of action under the Sherman-type provisions of section 3, particularly section 3(2) of the Act, and reversed the dismissal with prejudice and the order striking the amended bill of particulars. 92 Ill. App. 3d 552.

We initially note that the Illinois Antitrust Act, enacted in 1965 (Ill. Rev. Stat. 1979, ch. 38, pars. 60—1) was patterned after the Sherman Act (15 U.S.C. § 1 et seq. (1976)) and consciously omitted the Clayton Act (15 U.S.C. § 12 et seq. (1976)). (Ill. Ann. Stat., ch. 38, Commentary on the 1967 Illinois Antitrust Act, at 441 (Smith-Hurd 1977).) Section 3(4) was added to the Illinois Antitrust Act in 1969 and was inserted immediately following sections 3(1), 3(2) and 3(3), which were part of the Act enacted in 1965. As the appellate court indicated, section 3(4) was an almost verbatim enactment of section 3 of the Clayton Act verbiage with two major exceptions: (1) The addition of the words “or services” and (2) the elimination of the words necessary for Federal jurisdiction.

Section 3 of the Illinois act provides:

“Every person shall be deemed to have committed a violation of this Act who shall:
* * *
(4) Lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, or services, whether patented or unpatented, for use, consumption, enjoyment, or resale, or fix a price charged thereof, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodity or service of a competitor or competitors of the lessor or seller, where the effect of such lease, sale or contract for such sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce; ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 60—3(4).)

One violation set forth in this section is commonly referred to as a tying arrangement whereby a party agrees to sell or lease an item (the tying item) only on the condition that the purchaser or lessee also purchase a different item (the tied item).

The State argues that use of the term “commodities” in section 3(4) demonstrates a legislative intent that the section apply to land. Conversely, defendants argue that alleged tying actions under section 3(4) cannot include real estate as one of the tying or tied items. To support their position, the defendants contend that the language used in section 3(4) is very similar to the language used in section 3 of the Clayton Act, as well as the statutes of other States. Inasmuch as neither the Federal nor State cases construe this similar language as applying to land, defendants argue that section 3(4) of the Act likewise does not pertain to land.

We acknowledge the similarity of section 3(4) to section 3 of the Clayton Act (15 U.S.C. § 14 (1976)). And, as defendants point out, the term “commodities” as it appears in the Clayton Act as well as State statutes is held not to include real property. (E.g., Columbia Broadcasting System, Inc. v. Amana Refrigeration, Inc. (7th Cir. 1961), 295 F.2d 375, 378; Moore v. Jas. H. Matthews & Co. (9th Cir. 1977), 550 F.2d 1207; Suburban Mobile Homes, Inc. v. AMFAC Communities, Inc. (1980), 101 Cal. App. 3d 532, 549-50, 161 Cal. Rptr. 811, 821.) We also note section 11 of the Act, which provides that courts, in construing the Act, “shall follow the construction given to the Federal Law by the Federal Courts.” The Bar Committee Comments (Ill. Ann. Stat., ch. 38, par. 60—11, Bar Committee Comments—1967, at 513 (Smith-Hurd 1977)) add that the Illinois act should be construed like the Federal acts when “the language and structure of the Illinois Act do not indicate that a different result was intended.” (See Wash. Rev. Code 1961, tit. 19, § 19.86.050, which is identical to section 3(4) of the Illinois act and which is to be construed by the courts of that State with guidance by the interpretation given by the Federal courts. Also see Hansen v. Raleigh (1945), 391 Ill. 536, 549, which provides that the judicial construction previously placed on a statute that is adopted from another State is incorporated therein.)

We need not consider here the binding effect of section 11 on our courts, since a fundamental difference exists between the Illinois act, on the one hand, and the Clayton Act and the acts of other States, on the other. Section 4 of the Illinois Antitrust Act provides:

“As used in this Act, unless the context otherwise requires:
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‘Commodity’ shall mean any kind of real or personal property.” (Ill. Rev. Stat. 1979, ch. 38, par. 60—4.)

Neither the Clayton Act nor the statutes of other States contain a provision that defines “commodity” to include real property.

Legislative intent is to be derived primarily from a consideration of the legislative language itself. “There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.” (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) Moreover, when an act defines its terms, those terms must be construed according to the definitions contained in the act. (Krebs v. Thompson (1944), 387 Ill. 471, 478.) Thus, the term “commodity” as used in the Illinois Antitrust Act should be construed according to its definition in section 4.

Section 4 was enacted in 1965, at the same time as sections 3(1) (a), (b) and (c), which also incorporate the term “commodity.” When section 3(4) was enacted in 1969, it was inserted in the same section where commodity is used in the Act and where the term obviously applies to land. There was no language to the effect that use of the term in section 3(4) was to have a different meaning than use of the term elsewhere in that same section. This court has held that where a word is used in different sections of the same legislative act, unless a contrary legislative intent is clearly expressed, the presumption is that the word is used with the same meaning throughout the act. (Lawton v. Sweitzer (1933), 354 Ill. 620, 625; Board of Education v. Morgan (1925), 316 Ill. 143, 147.) Therefore, in the absence of a clear intent to exclude section 3(4) from the Act’s definition of commodity, we presume that section to be subject to the definitional section just as are sections 3(1)(a), (b) and (c).

We also note that section 3(4) expanded upon the Clayton Act by covering “services.” We do not agree with defendants’ contention that if the legislature intended section 3(4) to apply to land it would have more clearly indicated so. The language of section 3(4), taken from the Clayton Act, used the term “commodity.” As the appellate court dissent recognized, because section 4 already specifically defined “commodity” to include land, the legislature had no reason to expand upon the term “commodities” in order to demonstrate that land was included, as well as services. This legislative intent, derived from the plain language of the statute, is supported by the 1967 Bar Committee Comments (Ill. Ann. Stat., ch. 38, par. 60—4, Bar Committee Comments—1967, at 475 (Smith-Hurd 1977)). They declare that a primary purpose of the Act was to eliminate loopholes in previously existing Illinois legislation, two conspicuous ones being the omission of penalties designed to curb restraints with respect to services and real estate. The comments state, “Accordingly, the definitions of Section 4 were expressly designed to make services and real estate subject to the prohibitions of the law. It was the feeling of the draftsmen that exemptions should be strictly limited (Ill. Ann. Stat., ch. 38, par. 60—4, Bar Committee Comments—1967, at 475 (Smith-Hurd 1977).) There is no language in the 1969 amendments indicating that real estate was to be excluded from the prohibitions of the law and that the definitions of section 4 were to be inapplicable to the amendments.

Defendants argue that section 4 of the Act, defining “commodity,” was enacted in 1965 to accompany section 3(1) and does not apply to section 3(4). Defendants point to the introductory language of the definitional section, “As used in this Act, unless the context otherwise requires”: and argue that “commodities,” as it appears in section 3(4), is used in a different context. We disagree. We do not construe the use of language similar to that found in the Clayton Act or use of the phrase “or other commodities” in conjunction with the nouns “goods, wares, merchandise, machinery, supplies” to present a context that “requires” that the definition be disregarded. If the word “other” which precedes commodities had been omitted, the clause would be confusing, in that the implication could arise that the specific items named were not commodities. That is, the clause would read, “goods, wares, merchandise, machinery, supplies or commodities It is plausible to read the section as naming some specific commodities and then utilizing the general term “commodities,” the definition of which is supplied by the next section in the Act.

We view the introductory language of section 4, “unless the context otherwise requires,” as applicable to places in the Act such as section 5(8) where the Commodity Exchange Act is. referred to or section 5(6) where the word “service” is used in reference to a not-for-profit organization in clear contrast to section 4, which defines services as any activity performed for the purpose of financial gain. Both these provisions were present in the original act when the “unless the context otherwise requires” language was also enacted. Unlike use of the term “commodities” in section 3(4), sections 5(6) and 5(8) are instances where the legislature expressed a clear intent that the definitions in section 4 are not applicable. We also find no merit in defendants’ argument that, based on rules of syntax and punctuation, the context requires that “commodities” in section 3(4) should be excluded from the definition. Defendants’ rather strained grammatical explanation certainly does not, in our opinion, evince a clear legislative intent to exclude commodities from the definitional section of the Act.

In summary, section 3(4) was added as part of the same section where the term “commodity” originally appeared and where it was clearly intended to include real estate. As stated earlier, where a word is used in different sections of the same legislative act, there is a presumption that it is used with the same meaning throughout, unless a contrary legislative intent is clearly expressed. (Lawton v. Sweitzer (1933), 354 Ill. 620, 625; Board of Education v. Morgan (1925), 316 Ill. 143, 147.) We do not presume the legislature was unaware of the definitional section when it enacted section 3(4). Had it intended to exclude the term “commodities” from section 4, it could have done so in an unambiguous manner. The failure of the legislature to do so, in light of the clear and specific language of section 4, indicates to us that the legislature intended the same definition to apply to “commodities” in section 3(4) as in the other paragraphs of that same section. Finding no clear legislative intent to exclude section 3(4) from the definitional section of the Act, we accordingly hold the terms “commodities” and “commodity” appearing in section 3(4) of the Illinois Antitrust Act to be applicable to land.

Defendants argue that per se rules do not apply to section 3(4) of the Act. As noted earlier, section 3(4) is patterned after section 3 of the Clayton Act, to which a per se analysis is applied. Not surprisingly, under this issue defendants retreat from analogies to Federal law which they utilized in the above argument, while the State, here, vigorously embraces analogies to Federal law. Defendants assert, “[I]t is debatable whether Illinois would follow the per se tests of Clayton section 3 given the fact that all per se violations are clearly set out in section 60 — 3(1) of the Act. *** [S]ubsection 3(4), not having been included as a new addition to the sections 3(1)(a), (b) and (c) is therefore not to be accorded per se status any more than a tying case could be under section 60 — 3(2) if the Sherman tying tests were met.” We disagree. There is no indication that the legislature intended to preclude the subsequent addition of other per se sections. Moreover, section 3(2), unlike section 3(4), specifically provides that a “contract, combination, or conspiracy with one or more other persons [must] unreasonably restrain trade or commerce.” (Emphasis added.) Section 3(4), on the other hand, requires only that the effect of the agreement described in the section “may be to substantially lessen competition or tend to create a monopoly in any line of commerce.” (Emphasis added.)

The above-quoted language from section 3(4) is identical to section 3 of the Clayton Act, to which a per se test is applied. (Standard Oil Co. v. United States (1949), 337 U.S. 293, 304-05, 93 L. Ed. 1371, 1381-82, 69 S. Ct. 1051, 1057-58; International Salt Co. v. United States (1947), 332 U.S. 392, 396, 92 L. Ed. 20, 26, 68 S. Ct. 12, 15. See Times-Picayune Publishing Co. v. United States (1953), 345 U.S. 594, 608-09, 97 L. Ed. 1277, 1289-90, 73 S. Ct. 872, 880; Atkins, State Antitrust Enforcement And Important New Amendments To The Illinois Antitrust Act (1970), 58 Ill. Bar J. 699, 724-25.) That language, unlike the portion of section 3(4) dealing with commodities, is not subject to a definition elsewhere in the Illinois act that would supersede Federal law. Accordingly, under section 11, the Illinois act should be construed consistent with the Federal law.

In applying a per se test, the United States Supreme Court has repeatedly stated that tying agreements are to be treated harshly:

‘“[Tjying agreements serve hardly any purpose beyond the supression of competition.’ Standard Oil Co. v. United States, 337 U.S. 293, 305, 306, 93 L. Ed. 1371, 1382, 69 S. Ct. 1051. They deny competitors free access to the market for the tied product, not because the party imposing the tying requirements has a better product or a lower price but because of his power or leverage in another market. At the same time buyers are forced to forego their free choice between competing products.” Northern Pacific Ry. Co. v. United States (1958), 356 U.S. 1, 6, 2 L. Ed. 2d 545, 550, 78 S. Ct. 514, 518.

We note that the Illinois legislature intended that tying arrangements be dealt with harshly. The legislature carved out exclusive dealing and tying arrangements in section 3(4) and made them subject to criminal sanctions. (Ill. Rev. Stat. 1979, ch. 38, par. 60—6.) The only other provision subject to criminal sanctions is section 3(1), indisputably a per se section. We believe subjecting section 3(4) to criminal sanctions further demonstrates the legislature’s intent that it be treated as a per se section, like section 3(1). See Curtis and Decker, The 1969 Amendments To The Illinois Antitrust Act (1970), 58 Ill. B.J. 698, 705.

Defendants argue that if section 3(4) mandates a per se test, there would be no reason for a plaintiff to bring an action under section 3(2) in a tying case, and that section would, in effect, be repealed. This argument, however, misses two essential points. First, section 3(4) proscribes only exclusive dealing and tying arrangements. Vertical arrangements still must be prosecuted under section 3(2). Second, plaintiffs obviously seek to apply a per se test in tying cases. As in the Federal cases, if the per se requirements are not met, the case can proceed under a rule-of-reason analysis under section 3(2). See Fortner Enterprises, Inc. v. United States Steel Corp. (1969), 394 U.S. 495, 499-500, 22 L. Ed. 2d 495, 503, 89 S. Ct., 1252, 1256-57.

In summary, we conclude that section 3(4) of the Illinois Antitrust Act, which is patterned after section 3 of the Clayton Act, which does not contain any “reasonableness” language, which carves out exclusive dealing and tying arrangements and which, like the per se provisions in section 3(1), carries criminal sanctions, should be construed as a per se section.

Under the dictum of Times-Picayune Publishing Co. v. United States (1953), 345 U.S. 594, 608, 97 L. Ed. 1277, 1290, 73 S. Ct. 872, 880, the Supreme Court, after a thorough analysis of prior Supreme Court cases, concluded that a violation of section 3 of the Clayton Act occurs when the seller has economic power in the tying product or if a substantial amount of commerce in the tied product is restrained. (Accord, Sargent-Welch Scientific Co. v. Ventron Corp. (7th Cir. 1977), 567 F.2d 701, 708 n.9, cert. denied (1978), 439 U.S. 822, 58 L. Ed. 2d 113, 99 S. Ct. 87.) The rationale underlying this per se test is that “from either factor the requisite potential lessening of competition is inferred." (345 U.S. 594, 609, 97 L. Ed. 1277, 1290, 73 S. Ct. 872, 880.) The presence of the identical language in section 3(4) of the Illinois act (i.e., a violation occurs if the effect of the agreement described in that section “may be to substantially lessen competition or tend to create a monopoly in any line of commerce”;) leads us to adopt the Times-Picayune test for establishing a per se violation under that section. Accord, People ex rel. Scott v. College Hills Corp. (1981), 92 Ill. App. 3d 651, 657-58; Maywood Sportservice, Inc. v. Maywood Park Trotting Association, Inc. (1973), 14 Ill. App. 3d 141, 152.

A review of the amended complaint, particularly paragraphs 7 and 11, leads to the conclusion that the factors delineated in Times-Picayune were sufficiently alleged.

Defendants contend that a tying arrangement was not properly alleged because nowhere in the amended complaint did the State allege that a party could not have the lot or the materials singly if requested. We disagree. The State’s amended complaint specifically alleged:

“That the purchase by a contractor or home builder or ultimate home owner of a developed lot from Schwulst Building by and through Carl and Warren Schwulst be conditioned upon the purchase of a package of building materials from Schwulst Building to be used on the same lot; and,
That the purchase by a contractor or home builder or ultimate home owner of a developed lot from Schwulst be made with the understanding that the contractor or home builder or ultimate home owner shall not purchase preassembled trusses and walls or suitable substitutes from competitors of Schwulst Building.”

After carefully reviewing the State’s amended complaint, we conclude it sufficiently alleges a tying arrangement falling under the per se proscription of section 3(4) of the Illinois Antitrust Act.

For the above-stated reasons, the judgment of the appellate court and the judgment of the circuit court are reversed, and this cause is remanded to the circuit court of McLean County for further proceedings.

Judgments reversed; cause remanded.

JUSTICE UNDERWOOD took no part in the consideration or decision of this case.