author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS GUTIERREZ, Defendant-Appellant.
    Second District
    No. 80-339
    Opinion filed March 16, 1982.

      Mary Robinson and David Morris, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerald Grubb; State’s Attorney, of Belvidere (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

■ The defendant, Carlos Gutierrez, was convicted in a consolidated bench trial of the felony of leaving the scene of a vehicular accident involving death (Ill. Rev. Stat. 1979, ch. 95H, par. 11 — 401) and of several misdemeanor charges for driving on a suspended license. In his appeal he contends that the information was insufficient to charge the felony. Alternatively he contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt and that the sentences were excessive.

At approximately 7:20 a.m. on December 23, 1979, Catherine Drozynski left her parent’s home, to go jogging. At 8:30 a.m., her body was discovered in a ditch along Shaw Road, in Boone County. The cause of death was later attributed to head and pelvic injuries, consistent with an automobile collision.

Police who were called to the scene noted that weather conditions had been very foggy that morning. A number of passersby had congregated at the scene, but no one identified himself to police, as having been involved in the accident.

Investigating officers discovered a set of vehicular tracks, composed of mud or mud-type gravel, which proceeded on and off the highway near the accident site. Evidence was presented, without objection, which linked the muddy tracks with the vehicle involved in the accident. The tracks were traced, on and off the highway surface, to a short distance up the road from the accident site. There, the vehicle apparently left the road, and made a 180-degree turn, back toward the site. The tracks could not be traced from that point, due to the distortion caused by other vehicles.

There was evidence that no one had reported to the Boone County Sheriff or to any other authority in the area within 48 hours of the accident, to identify himself as the driver of the hit-and-run vehicle.

A length of car antenna, and its black plastic base was found near the victim. Automotive paint fragments were removed from the victim’s clothing. This indicated to police that the hit-and-run vehicle could be a “greenish-gold” car, missing its radio antenna. An officer on routine patrol located such a vehicle parked near the apartment complex where defendant lived.

Officers subsequently spoke with defendant, who admitted ownership of the car. Defendant was interviewed by a Spanish-speaking officer on December 26, 1979, after he was apprised of his rights. He told police that his Buick had not been moved over the weekend of December 23. When asked about the car’s missing antenna, defendant explained that he had recently installed a tape player in his car. Because his radio did not work, and the antenna wasn’t necessary to the operation of the tape deck, defendant removed the antenna and threw it in the city dump. Defendant told police that the dents in his front fender were old, and were perhaps caused when he changed a tire. Police officers testified that the paint was chipped on top of the car’s front right fender. The metal was exposed and shiny — indicating a recent collision.

When asked about his whereabouts, defendant responded that he had been at a party in the early morning of December 23, at a friend’s apartment within the complex. He walked home, because his child was sick, and remained at his apartment thereafter. Defendant insisted that his Buick had not been used. When informed that the police sought to impound the car, defendant told police, “Go ahead and take the car because I didn’t do anything wrong. I know the car wasn’t used and if you guys want to take the car go ahead.”

Laboratory examination revealed that the section of car antenna and plastic base found at the accident scene matched the remnants of the antenna recovered from the Buick. Analysis revealed that the paint chips taken from the victim’s clothing matched samples taken from the Buick. Fibers obtained from the grille of the Buick matched fibers taken from the victim’s sweatpants. Finally, a pattern impressed on the Buick’s right front headlight housing was similar to the elastic pattern of the lower band of the victim’s sweatshirt.

Defendant was again interviewed by a Spanish-speaking officer on January 2,1980. Police asked him if a friend, or his wife could have driven the car. Defendant responded that he had the only keys to the car, and he had kept them in his possession during the time in question. Defendant was then confronted with the lab results. Nonetheless, defendant persisted in his prior explanations. Defendant was thereafter placed under arrest, and taken into custody. An Illinois Secretary of State driver’s abstract later revealed that defendant’s driver’s license had been suspended between March 12,1976, and March 12,1980.

Two witnesses testified on defendant’s behalf. Uraulae Romo testified that he drank beer with defendant until 2 a.m. on December 23,1979. At that time, defendant’s wife telephoned, and asked defendant to come home because their child was sick. Defendant finished his beer, and then went to his apartment (which was located within the same complex). Defendant was described as “a little bit drunk” when he left.

Defendant’s wife, Karen Gutierrez, testified that she telephoned her husband at Romo’s apartment, and asked him to come home because their child was sick. Defendant came home between 2:30 and 3 a.m. Karen went to sleep between 3:30 and 4 a.m., and got up once during the night to bottle her baby. She testified that defendant was in the apartment at those times, as well as when she arose at 10 a.m. She indicated that she was a light sleeper, and would have been awakened had defendant arisen during the night.

The trial court found the defendant guilty of all charges. Following a sentencing hearing, defendant was sentenced to serve 3 years’ imprisonment on the charge of leaving the scene of an accident, to run concurrent with a 364-day term on each misdemeanor charge. The sentences, however, were to run consecutive “to any sentence heretofore imposed by any Court of the State of Illinois or the United States.” No post-trial motions were filed on defendant’s behalf.

The information charged the defendant with being the driver of a vehicle involved in an accident resulting in the death of the victim, with failing to immediately stop his vehicle at the scene and return and remain at the scene to fulfill the requirements of the statute (Ill. Rev. Stat. 1979, ch. 95%, par. 11 — 403), and in addition with failing to report information as to the accident at a police station or sheriff’s office near the place where the accident occurred within 48 hours after the accident.

The defendant concedes that the record supports the finding that the automobile owned by defendant was involved in the accident and that the accident resulted in the death. He principally argues that the information did not charge him with knowledge of the offense; and that the State failed to prove beyond a reasonable doubt that the defendant was the driver of the vehicle with knowledge of the accident.

We are first confronted with a claim of waiver of the insufficiency of the information, based on the defendant’s failure to challenge the information in the trial or to file a post-trial motion. See People v. Jackson (1981), 84 Ill. 2d 350, 358.

When, as here, a charge is attacked for the first time on appeal, it is sufficient if it apprises the defendant of “the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.” (People v. Pujoue (1975), 61 Ill. 2d 335, 339.) Even where the omission concerns a material element, such as a mental state required for commission of the offense, the Pujoue rule is applicable. People v. Walker (1980), 83 Ill. 2d 306, 313-14.

We conclude that the information before us is sufficient to apprise the accused of the precise offense charged with sufficient specificity to prepare his defense and to bar further prosecution arising out of the same conduct and is therefore adequate to charge the offense under the Pufoue standards. The defendant has not argued that the information as presently worded would fail to act as a bar to subsequent prosecution arising out of the same conduct, and it does not appear from the record that he could properly do so. His contention that the charge does not set forth the required mental state, that he had knowledge that his car had been involved in the accident, does not raise an issue of fundamental fairness in the circumstances since he was not prejudiced in the preparation of his defense. His defense was an alibi, and he had at all times maintained that he was not the driver of the hit-and-run vehicle. Since he claimed that he was not at the scene of the accident, the distinction between whether he struck the victim with or without knowledge could not have misled him in preparing his defense. (Cf. People v. Montgomery (1981), 96 Ill. App. 3d 994, 998.) We therefore find no reversible error in the form of the information.

Defendant has also argued that the court treated the information as a strict-liability offense and therefore did not consider whether the defendant had knowledge of the event. While it is true that the court did not mention the element of knowledge in his findings and adverted to knowledge only at sentencing, it does not follow that the court followed the wrong standard. The court is presumed to know the law and apply it properly; it is not required that he must state for the record the standard of proof he has employed, and in determining the sufficiency of judgment the entire record will be searched to support the judgment. People v. Thorpe (1977), 52 Ill. App. 3d 576, 578.

We have made an exception to the waiver rule in cases tried by the court and in which the alleged error relates to the sufficiency of the evidence to sustain the findings of the trial court. (People v. Christiansen (1981), 96 Ill. App. 3d 540, 542.) Thus the defendant’s challenge to the sufficiency of the evidence to support the conviction will be considered on appeal.

While we agree that it was encumbent upon the State to establish beyond a reasonable doubt that the defendant “had knowledge that the vehicle he was driving was involved in an accident or collision” (People v. Nunn (1979), 77 Ill. 2d 243, 252), proof that the defendant was the driver of the vehicle may be established by circumstantial evidence. (City of Marquette Heights v. Clarkson (1978), 64 Ill. App. 3d 162, 164.) The physical and scientific evidence establishes that the victim of a hit-and-run accident collided with the front right fender of the vehicle with enough force to dent the fender, chip its paint, and snap its radio antenna off at its base. There was also evidence that the hit-and-run vehicle pulled

off the road, proceeded past the accident site and then made a U-turn back toward the site. The false exculpatory statements of the defendant were also probative as evidence of his consciousness of guilt. Defendant admitted ownership of the car and stated that only he had control of the keys and it had not been moved over the weekend of December 23. This was obviously false, as was defendant’s explanation relating to the removal of the antenna and the explanation of how the dents in the right front fender had been previously caused. “A defendant’s false exculpatory statement has independent probative value as evidence of consciousness of guilt and is admissible.” (People v. Mitchell (1975), 35 Ill. App. 3d 151, 162.) When, from the evidence, it is absolutely clear that the defendant’s vehicle, as to which he has the only keys by his own statement, has clearly participated in the accident, the familiar rule that one who elects to justify his presence at or near the scene of a crime while denying participation may be judged by the credibility of his explanation should equally apply here. (Cf. People v. Spagnolia (1961), 21 Ill. 2d 455, 458.) The alibi testimony did not establish defendant’s whereabouts at the exact time of the accident and was not sufficient to raise a reasonable doubt under all of the circumstances.

Also, contrary to defendant’s assertions, there was sufficient evidence in the record for the trier of facts to conclude that the defendant failed to report the accident to police within 48 hours as required by statute. While he argues that the State’s witness testified to his contacts with other local authorities after the accident, which was hearsay, the defendant on each occasion denied his involvement in the transaction which left the reasonable inference that he had not reported. We conclude that all the necessary elements of the offense charged have been proved beyond a reasonable doubt.

The defendant seeks, alternatively, a remand for resentencing.

He argues, first, that the trial court erred in imposing sentences which were made consecutive “to any sentence heretofore imposed by any Court of the State of Illinois or the United States.” A sentence which is to begin at the termination of another term must clearly identify the prior sentence and its termination without resort to supplemental sources. (People v. Toomer (1958), 14 Ill. 2d 385, 387.) The language here used by the court, taken alone, is too broad and does not clearly identify the sentences to which the current sentence is to be made consecutive. (See People v. Logan (1974), 23 Ill. App. 3d 41, 42; People v. Walton (1969), 118 Ill. App. 2d 324, 333.) Nevertheless, the record is sufficient to enable us to determine and identify the previous sentence and its termination. Prior to stating the sentence, as we have above quoted, there was a discussion between the court and both counsel as to defendant’s conviction in the Federal District Court of the offense of distribution of heroin and reference to a sentence imposed of 6-8 years in the Federal penitentiary. The court specifically noted that it was within his “power to allow consecutive sentences with respect to the Federal charges and the State charges.” Moreover, the Federal conviction and sentence were set forth in the presentence report before the judge and included the statement that defendant was in the custody of- the United States authorities on the conviction of two counts of distribution of heroin for which the defendant had been sentenced to 6 to 8 years in the Federal prison and was currently being held by the Federal authorities. Reference to a presentence report has been held proper as a basis for determining the sentences that defendant is currently serving. People v. Green (1980), 83 Ill. App. 3d 982, 986.

The remaining reference to any sentence imposed by any court of the State of Illinois appears to be an inadvertent noting of the fact that the court was ordering the felony case to run concurrently with the misdemeanor charges involving driving while license suspended (including several which arose other than out of the accident in which the victim was killed and which were consolidated for trial). It is our order that the sentences for the instant charges shall, in any event, begin at the termination of the Federal sentence and that the mittimus be corrected accordingly.

The defendant has also argued that the trial court erred in considering as an aggravating factor that the crime was “heinous” and threatened serious harm because the defendant was found to have left the scene when it was not known whether the victim was still alive. He argues, first, that the legislature considered leaving the scene as an element of the crime and did not intend a factor implicit in its commission to be also a statutory aggravating factor. If a factor is implicit in an offense, a necessary element of an offense, “it is reasonable to conclude that the legislature already considered that factor in establishing the penalties.” (People v. Conover (1981), 84 Ill. 2d 400, 405.) However, the record as a whole supports the imposition of consecutive sentencing. The record includes nine convictions for speeding since 1975, five suspensions of driving privileges, conviction for collision involving property damage, and convictions on a weapons charge as well as the Federal convictions for the distribution of heroin. Further, the aggravating factor of “threatened serious harm” is not inherently present in each violation of section 11 — 401 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95M, par. 11 — 401). It is apparent that some “hit-and-run” incidents might involve minor injuries to the victim, or other circumstances which negative, as a factual matter, the threat of serious harm. We conclude that the court could properly take into account as an aggravating factor that under the circumstances it must have been clear that the driver knew at the impact that serious injuries were caused and possibly the victim might be alive and need help and yet turned in the other direction and left the scene. While the defendant has argued that the tire tracks were not absolute proof, this was a matter which the trial court as the finder of the facts resolved against the defendant.

The judgments are therefore affirmed in accordance with this opinion. The cause is remanded for the sole purpose of correction of the mittimus.

Affirmed and remanded.

UNVERZAGT and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES V. FELTERS, Defendant-Appellant.
    Second District
    No. 81-272
    Opinion filed March 16, 1982.

      Mary Robinson and John J. Barrett, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant appeals from his conviction of burglary after a jury trial and from the 14-year sentence imposed. He contends he was not proven guilty beyond a reasonable doubt, claiming that there was no evidence corroborating the inference arising from his possession of property stolen in the burglary.

There was evidence that the Russell residence had been gone through some time between when a family member left at approximately 11 a.m. on December 15, 1980, and when a family member returned at about 3 p.m. on that date. Fifty dollars in silver half dollars which had been saved in a tin, books of blank, unsigned checks, and two savings accounts’ passbooks were missing. A basement window had been “kicked in.” At about 3:17 p.m. on December 15, the defendant was identified as having inquired as to the balance in the Russell checking account. He cashed a missing check drawn on the owner’s account for slightly less than the balance. There was evidence that it takes 15 or 20 minutes to go between thé Russell home and the bank. About 30 minutes after cashing the check defendant again appeared at the bank and sought to withdraw some $8,000 from the savings accounts, but drove away when there was a delay. The only evidence offered by defendant was the testimony of a witness to rebut the testimony of the bank teller as to the clothing worn by the person involved.

It is established that unexplained possession of recently stolen property may support an inference of guilt of the crime of burglary only if (1) there is a rational connection between the possession and the participation in the burglary, (2) the guilt of burglary is more likely than not to flow from the possession of the burglary proceeds, and (3) there is corroborating evidence of guilt. People v. Housby (1981), 84 Ill. 2d 415, 424.

The evidence establishes that the Russells’ home had been forcibly entered and that the burglar took only cash, checks, and bank books, passing up more saleable goods such as guns and television sets which were left untouched. While there was no exact way for the jury to fix a precise time when the burglary took place, they could find from the circumstances that there was a short time interval between the completion of the burglary and the defendant’s appearance at the bank on the first occasion.

It is of course possible that defendant found the checks and passbooks after they were discarded by a burglar who kept only the coins, or that the defendant purchased the items. However, it is not probable that a burglar who apparently planned in advance to steal only cash and bank documents would change his mind immediately after the crime, leaving the stolen items where they were necessarily quickly discovered by defendant. Defendant obviously was not an innocent victim of circumstances, since he was discovered in the midst of a dishonest act, regardless of how he came to possess the items. Further, no evidence was introduced to suggest that he was the receiver of goods stolen by another. Thus, it is more probable than not that he was the burglar, satisfying the second prong of the test.

The third prong, corroboration, is the most difficult. Housby holds that the same evidence satisfying the second prong of the test could support a finding of guilt under the third prong. In addition, Housby noted that the presumption of guilt in that case was bolstered by evidence that defendant’s relationship to the possession was not honest. (84 Ill. 2d 415, 430.) Corroborative evidence here included not only the defendant’s “dishonest” relationship to the goods involved, but also the very short time span between the burglary and the defendant’s appearance at the bank, the fact that the defendant was seen in possession or control of much of the stolen property, and the nature of the burglary and of the stolen goods themselves.

The latter consideration is particularly strong. It is manifest that the burglar intended to steal, and did steal, only cash or items that could rapidly be converted to cash. Thus, the jury could believe that the burglar did not intend to sell stolen goods to unknowing purchasers, and did not attempt to sell the defendant somebody else’s bank books and blank checks. Nor need the jury accept the hypothesis that defendant simply stumbled upon checks and passbooks which were the principal object of a burglary and which were left behind almost immediately after the burglary in a place where another could easily discover the items. Although the corroborative evidence is circumstantial, we find it adequate under Housby standards. This is not a case where the jury could infer guilt only from the bare fact of possession of stolen goods.

Defendant relies on People v. Johnson (1981), 96 Ill. App. 3d 1123, which we find distinguishable. In Johnson, corroborative evidence was essentially nonexistent; the time span between the burglary and the discovery of defendant’s possession of the goods was 36 hours rather than the very few hours the jury could find from this record. In addition, the goods in Johnson were of the sort that might easily be sold to unknowing purchasers, the defendant was found with only a small part of the stolen property, and there was no evidence of unauthorized entry into the vie-the bare fact tim’s house. Thus, the connection necessarily depended on of possession without any corroboration.

a reasonable the burglary. We conclude that the evidence is sufficient beyond doubt to support the conclusion that defendant committed We therefore affirm the judgment.

Affirmed.

UNVERZAGT and VAN DEUSEN, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARGARET KINION, Defendant-Appellant.
    Third District
    No. 81-151
    Opinion filed May 5, 1982.
    Rehearing denied June 7, 1982.

      Robert Agostinelli and Verlin R. F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Defendant Margaret Kinion was indicted for 63 counts of felony theft. After a jury trial in the circuit court of Rock Island, she was found guilty and sentenced to 63 concurrent 10-year terms of imprisonment.

The facts upon which the indictment was predicated are uncontroverted. In April 1976, defendant was hired as an account clerk by the City of Rock Island. In this capacity, she was involved with the city payroll and after receiving favorable job evaluations, she was promoted to city accountant in September 1977. In this capacity, defendant’s primary responsibility was to post daily receipts in a cash journal. In September 1979, June Britton, who had responsibilities similar to those of defendant, called City Clerk William Tracey, Jr.’s attention to an irregularity she had discovered in the journal. A comprehensive audit followed. It established that defendant had manipulated the journal and appropriated approximately $14,000 in cash for her own use. It also established that she wrote herself 51 checks totalling over $50,000.

Defendant responded with an insanity defense. The evidence established that she had several times in the past been committed to institutions for psychiatric difficulties and was working with a psychiatric case worker up and through the period of the charges herein. Seven professionals testified at trial. Of the four who testified for the defense, three diagnosed defendant as schizophrenic and one as chronically psychotic. Dr. Bruce Danto stated that she could not discern right from wrong or conform her conduct to the law. Of the three who testified for the State, one diagnosed defendant as a severe hysteric, and two stated she had an antisocial personality. Dr. Truce Ordona and Dr. Werner Tuteur testified that defendant was legally sane at the times of the offenses. Additional facts will be presented in our discussion of the issues.

The first of the eight issues presented for our review is whether those convictions for the appropriations of cash must be reversed as the State allegedly failed to prove the acts were done without authority. Defendant contends the lack of direct proof of this element of the crimes was fatal to the State’s case. While we recognize that section 16 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)) requires that a person must obtain or exert “unauthorized control over property” to commit theft, we find that the State met its burden in establishing this. Paul Berg testified that the only money which defendant was authorized to receive from the city was her paycheck, which was issued biweekly. It follows that the cash in question was taken without authority.

The second issue is whether the convictions must be reversed as the defense counsel allegedly labored under a conflict of interest. The alleged conflict claim stems from the fact that defendant executed a note, deed, and mortgage in counsel’s favor in return for his services. Defendant contends that counsel would thus be interested in establishing her capacity to execute these instruments while inconsistently attempting to establish her unfitness for trial and insanity defense. Unfitness for trial occurs when a defendant is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 10.) Legal insanity occurs when a defendant lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. (Ill. Rev. Stat. 1979, ch. 38, par. 6 — 2.) Capacity to contract requires that a party must be of “sufficient mental ability to appreciate the effect of what he is doing” and “be able to exercise his will with reference thereto.” (Thatcher v. Kramer (1932), 347 Ill. 601, 609, 180 N.E. 434.) It is thus clear that three different standards are here involved, and a defendant could have the capacity to contract while being unfit for trial or legally insane. This being the case, we decline to adopt the per se conflict rule advocated by defendant. To adopt such a rule would mean that a per se conflict would arise retroactively in every case where a contract for the employment of private counsel had been entered into and thereafter an insanity defense was contemplated or raised. Actual prejudice must be shown. In this case defense counsel’s representation of his client was vigorous, singleminded and diligent. No claim is made, and the record fails to demonstrate, that there were any deficiencies in the activities of defendant’s counsel or any prejudice to her arising from the initial compensation arrangement and her representation.

The third issue presented for our review is whether the trial court erred in not dismissing the indictment or, alternatively, severing its counts. Section 111 — 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 4(a)) provides:

“Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.”

Defendant contends the charged offenses are not part of the same comprehensive transaction as they took place over several years and were effected by different techniques.

While there is language to the effect that joinder is not permitted “where the crimes occur several days apart 6 e *” (People v. Hyche (1978), 63 Ill. App. 3d 575, 578, 380 N.E.2d 373, 376, aff'd (1979), 77 Ill. 2d 229, 396 N.E.2d 6; People v. Daniels (1976), 35 Ill. App. 3d 791, 797, 342 N.E.2d 809, 813), Hyche cites Daniels, which in turn cites People v. Pullum (1974), 57 Ill. 2d 15, 309 N.E.2d 565. Pullum involved an armed robbery on September 4,1970. On September 20,1970, the defendant was stopped by police officers for running a red light. When the defendant failed to produce a license and. explained the car was borrowed, the police ran a check and discovered it was stolen. A post-arrest search revealed cannabis. After setting out the statute, the court concluded:

“Here the defendant was confronted with wholly unrelated charges. The crimes charged occurred 16 days apart, were wholly dissimilar, and contained no common elements. The only thread of continuity between the two offenses is that the defendant was in possession of marijuana and the 1970 Cadillac at the time of his arrest. The record does not indicate that the possession of marijuana at the time of the arrest for armed robbery was in any way connected with the armed robbery.
We do not find, as did the appellate court, that the marijuana charge and armed-robbery charge are a part of the same comprehensive transaction, and we hold that the failure to grant the motion to sever constituted reversible error.” (People v. Pullum (1974), 56 Ill. 2d 15, 18, 309 N.E.2d 565, 566.)

It can be seen that, while the court noted the 16 days between the crimes, the interval was not the basis of its holding. The Hyche court recognized this in stating that “we do not say that the mere passage or nonpassage of a certain amount of time is determinative of whether charges are properly joined 6 • (People v. Hyche (1978), 63 Ill. App. 3d 575, 578, 380 N.E.2d 373, 398.) We believe this is the better view and hold that, under the circumstances at bar, the time involved does not automatically eliminate the acts at bar from the category of a comprehensive transaction. We note parenthetically that a longer series of events has been so characterized. Cf. People v. Clark (1979), 71 Ill. App. 3d 381, 389 N.E.2d 911 (1971-1974), appeal denied (1980), 81 Ill. 2d 584.

As for the utilization of different techniques, we note that a defendant cannot insist that he not be put on trial for an indictment containing counts charging separate felonies unless it affirmatively appears that they are not parts of one and the same transactions, but are separate and distinct in law and in fact. (Cf. People v. Stingley (1953), 414 Ill. 398, 111 N.E.2d 548, cert. denied (1953), 345 U.S. 959, 97 L. Ed. 1379, 73 S. Ct. 945 (assault with intent to rape; intent to murder).) In the case at bar, defendant systematically converted funds from the city over a period of years. On some occasions she issued herself checks and on others she issued herself cash. We do not find this difference is fatal to the indictment.

While prosecutions of this nature would seem to be more appropriately initiated under section Ill — 4(c) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 4(c)), which requires acts or transactions “in furtherance of a single intention and design” rather than the “same comprehensive transaction” required by section Ill — 4(a) (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 4(a)), we do not find the failure to initiate the action under the former provision mandates a reversal under the circumstances here presented.

The final matter to be considered in our discussion of this third issue is whether the trial court erred in not severing the charges for purposes of trial. Severance is governed by section 114 — 8 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 8) providing:

“If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.”

The benchmark by which the determination of prejudice is made in the more common instance involving co-defendants is whether defenses are so antagonistic that severance is imperative to require a fair trial. (People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356.) In the instant situation, no such benchmark is available, and we must determine whether defendant was prejudiced without such guidance.

Defendant contends she was prejudiced by the jury being confronted with “endless details”, by the necessity of expert testimony regarding sanity on 60 days over a period of 33 months, and by the jury “simply throwing up their hands, forgetting about the individual charges.” Considering the initial allegation of prejudice, severance would have unquestionably simplified the State’s case in chief; however, the fact that defendant committed the acts in question was never challenged. The details concerning the matter of defendant’s sanity would remain essentially the same whether presented to one jury or 63, which brings us to the second allegation of prejudice. The essence of the insanity defense was that defendant was legally insane throughout the period in question. While the defense did not contend that defendant was so afflicted at all times, it specifically presented evidence that she was insane every time she converted funds. Thus the details of the defense would not be significantly altered, and the fact that 63 different days are involved is immaterial. As for the allegation of the jury ignoring the individual charges we find no substance to the argument.

An additional consideration is the transcription of testimony regarding the insanity defense covered over 1600 pages. Thus, the requested severance would necessarily result in a voluminous duplication of evidence. (See People v. Sockwell (1977), 55 Ill. App. 3d 174, 176, 371 N.E.2d 100, 102; People v. Marbley (1975), 34 Ill. App. 3d 434, 437, 340 N.E.2d 247, 249.) Considering this and the failure to establish that defendant was prejudiced, we do not find the trial court abused its discretion in denying the motion for severance.

The fourth issue is whether the trial court erred in denying defendant’s request for a jury trial determination of her fitness to stand trial. The right to a jury hearing is governed by section 104 — 12 of the Code (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 12):

“The issue of the defendant’s [fjitness may be determined in the first instance by the court or by a jury. The defense or the State may demand a jury or the court on its own motion may order a jury. However, when the issue is raised after trial has begun or after conviction but before sentencing, or when the issue is to be redetermined under Section 104 — 20 or 104 — 27, the issue shall be determined by the court.”

Defendant moved for a fitness hearing and the court, after a hearing on the merits of the motion, ruled that there was no bona fide doubt of her fitness to stand trial. On September 8,1980, voir dire began, and a panel of four was selected. The following morning, defendant again moved for a fitness hearing. After a second hearing on the merits, the court found the requisite doubt but denied defendant’s demand for a jury determination. The appropriateness of this ruling hinges on whether or not trial had begun.

The time as of which a trial is regarded as having commenced varies according to the construction and application of the statute in question. (See 75 Am. Jur. 2d Trial sec. 3 (1974).) For many purposes, trial is deemed to have begun when the process of jury selection begins. (People v. Crawford Distributing Co. (1979), 78 Ill. 2d 70, 397 N.E.2d 1362 (speedy trial); People v. Heidelberg (1975), 33 Ill. App. 3d 574, 338 N.E.2d 56, appeal denied (1976), 62 Ill. 2d 590 (removal to Federal court); People v. Bey (1971), 133 Ill. App. 2d 250, 272 N.E.2d 726 (change of venue); Jordan v. Savage (1967), 88 Ill. App. 2d 251, 232 N.E.2d 580 (assignment to magistrate).) Trial has not begun when potential jurors are simply brought into a courtroom. (Cosmopolitan National Bank v. Goldberg (1959), 22 Ill. App. 2d 4, 159 N.E.2d 1 (dismissal without prejudice).) For determining when jeopardy attaches, trial begins when a jury is empaneled and sworn (People v. Friason (1961), 22 Ill. 2d 563, 177 N.E.2d 230), or, by analogy, when the first witness has sworn and the court begins to hear evidence in a bench trial (People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8, cert. denied (1981), 450 U.S. 925, 67 L. Ed. 2d 355, 101 S. Ct. 1378 (jeopardy attaches)).

In considering the question of the right to a jury at a fitness examination under the predecessor of the subject provision (Ill. Rev. Stat. 1975, ch. 38, par. 1005 — 2—1), our supreme court noted that a prior statute (Ill. Rev. Stat. 1963, ch. 38, par. 104 — 2) provided for a jury if a doubt regarding fitness arose during trial. Citing the commentary to the predecessor provision (Ill. Ann. Stat., ch. 38, par. 1005 — 2—1, Council Commentary, at 220 (Smith-Hurd 1973)), the court concluded the disallowance of a jury determination once trial had begun was based on the desire to conserve judicial resources and to speed determination of the issue. (People v. Manning (1979), 76 Ill. 2d 235, 390 N.E.2d 903.) This desire is better effected by establishing the beginning of trial at an earlier, rather than later, point in the proceedings. We therefore hold that, for the purposes of section 104 — 12 of the Code (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 104 — 12), trial begins when the process of jury selection commences. The trial court accordingly committed no error in determining defendant’s fitness from the bench.

The fifth issue presented for our review is whether the trial court erred in denying defendant’s motion for a mistrial after she was found fit to stand trial. Defendant contends the court had not assured itself of her fitness during the first day of voir dire, and this was a denial of due process of law. At trial she contended that defense counsel’s voir dire would have been influenced by his possession of a later-produced doctor’s report. As a ground of objection not presented to the trial court will not be considered on review (People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356), and an objection cannot be urged on appeal on an entirely different basis than in the trial court (cf. People v. Sawyer (1969), 42 Ill. 2d 294, 251 N.E.2d 230, cert. denied (1969), 396 U.S. 928, 24 L. Ed. 2d 225, 90 S. Ct. 262 (objection to evidence)), we decline to address this issue.

The sixth issue is whether defendant was denied a fair trial by two incidents of alleged prosecutorial misconduct. The first incident was a State’s witness using a chart which summarized his diagnosis. Demonstrations using a blackboard which are similar to using a plat have been allowed. (People v. Fisher (1930), 340 Ill. 216, 172 N.E. 743; People v. Hamilton (1980), 80 Ill. App. 3d 794, 400 N.E.2d 599); however, such a demonstration is not here involved. Even where a plat itself was used, a court has noted its use “was an endeavor to get before the jury the written testimony of the author * ° concerning “matters that are readily understood from the oral testimony of witnesses.” (Hatcher v. Quincy Horse Railway & Carrying Co. (1913), 181 Ill. App. 30, 35.) Likewise we here deal with a situation where the summarized matters were understandable from the oral testimony. While the court appropriately denied admission of the chart into evidence, as did the Hatcher trial court, the proffered exhibit still tended to memorialize the opinion testimony in question. We therefore find the court abused its discretion in allowing its use; however, in light of the extensive testimony and length of the trial, the impact of the chart was minimal. We therefore find the error harmless beyond a reasonable doubt.

The second incident of alleged prosecutorial misconduct occurred after defense counsel suggested that a question was relevant because the jury had the right to know of the same witness’ bias:

“[Defense counsel]: It is relevant because if he is a‘biased examiner he shouldn’t be testifying, or at least the jury ought to know.
[State’s Attorney]: You raised that on a motion to the Court and it was overruled.
[The court]: Objection sustained.”

Defendant does not raise on appeal the question of whether the trial court erred in not allowing defense counsel to elicit the fact the witness had publicly stated his opposition to the insanity defense. She rather contends the court erred in allowing the State to undercut the defense cross-examination by referring to a prior judicial ruling. As no objection was voiced at trial, and the matter was not included in defendant’s post-trial motion, we find this contention has been waived.

The seventh issue presented for our review is whether the trial court erred in denying defendant’s motion for a mistrial after a number of jurors witnessed an induction ceremony in which the prosecutor was sworn in as a circuit judge. Prior to his induction, the State’s Attorney had requested the court’s guidance as to how the jury should be advised of the necessary change in prosecutors. In the presence of defense counsel, the court suggested that the new prosecutor should simply state that the State’s Attorney had become a judge and could not present the State’s closing argument. Defendant voiced no objection to this procedure. Considering this and the lack of any specific allegation of prejudice, we find the court appropriately denied the mistrial motion.

The final issue is whether a new trial is necessary because of numerous statements in the State’s final argument. Improper remarks generally do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) We have considered the various statements and the extent prejudice was cured by instructions to disregard them, and do not find a new trial is warranted.

Accordingly, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO FREEMAN, Defendant-Appellant.
    Fourth District
    No. 17139
    Opinion filed April 21, 1982.
    Modified on denial of rehearing June 4, 1982.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellant.

      J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

The defendant, a 16-year-old youth, appeals from a judgment of the circuit court of Sangamon County entered upon a jury verdict which found him guilty of the offense of murder in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(1)). He was sentenced to 25 years’ imprisonment. Since the sole question raised on appeal is one of procedure, no recitation of the facts concerning the offense is necessary. Suffice it to say, the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

Prior to the date of the instant offense, May 23,1980, it is undisputed that the defendant had been adjudicated delinquent and made a ward of the court under section 4 — 8(2) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 8(2)). He was placed on probation which had been extended on two occasions pursuant to petitions filed to revoke, modify or extend probation. He was in this status when the offense of murder occurred. A third amended petition to revoke, modify or extend probation was filed June 2,1980, and alleged that the defendant had committed the offense of murder. It was accompanied by a pleading entitled “Motion to Transfer from Juvenile Court and to Permit Prosecution under the Criminal Laws.”

Counsel for defendant filed a motion in the trial court to strike the State’s motion for transfer on the ground that'by filing a petition to revoke probation the State had elected its remedy, that is, to proceed under the Juvenile Court Act. After hearing arguments, the trial court denied the defendant’s motion to strike.

Thereafter the trial court held an evidentiary hearing on the State’s motion to transfer and heard testimony from two prosecution witnesses and six witnesses for the defendant. The court also considered psychological reports which it had previously ordered prepared. At the conclusion of the hearing the trial court allowed the motion to transfer, finding that the interests of the minor and of the public required that the minor remain in custody for a period extending beyond his minority, all in accordance with section 2 — 7(3) (a) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3)(a)).

Prior to trial as an adult on a four-count information charging murder, defendant again objected to proceeding, but the objection was overruled and defendant was ultimately convicted and sentenced as previously indicated.

Defendant’s sole contention on appeal is that the trial court had no authority to allow the motion to transfer because the State had not filed a “petition” as required by section 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 7(3)). That section states:

“If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State’s Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.”

The statute by its clear wording requires (1) a petition alleging commission of an act constituting a crime, and (2) a motion to permit prosecution under the criminal laws. It is equally clear that without the petition there can be no transfer to adult prosecution. People v. Rahn (1974), 59 Ill. 2d 302, 319 N.E.2d 787.

Rahn was decided under the predecessor statute which gave a State’s Attorney an option, subject to objection by the juvenile judge. However, the rationale remains the same under the present statute. Criminal prosecutions of juveniles are limited and cannot be instituted until threshold requirements are met. These include an examination of the matter by the juvenile court to determine whether the best interests of the minor and of the public lie with juvenile proceedings or with criminal prosecution. Under the special treatment afforded to juveniles by the Juvenile Court Act, such an examination is the sine qua non of the proceeding. If the juvenile has never been before the court previously, obviously the only way to call the court’s attention to the matter is by a petition for delinquency which is the proper method of alleging the commission of a violation of the law (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 2) as distinguished from a juvenile who is neglected, dependent, or otherwise in need of supervision. In calling the court’s attention to the matter there appears to us to be no qualitative difference between an original petition for one who has never been before the court and a petition to revoke probation for one who has already been adjudicated delinquent as a result of other offenses. The primary purpose of either pleading, accompanied by a proper motion, is to trigger the investigative function of the court. In the instant case the petition to revoke probation set forth in elaborate detail the commission of murder and was accompanied by the proper motion.

Defendant argues that “petition” as used in section 2 — 7(3) of the Juvenile Court Act must be one as defined by section 1 — 15 of the Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 15), which states that a petition is one provided for in section 4 — 1 of the Act. That section, 4 — 1 (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1), deals with the initiation of wardship proceedings. We do not read the Juvenile Court Act so restrictively. Section 1 — 4 (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 4) mandates a liberal interpretation. The word “petition” is used many times throughout the Act and its meaning in the various sections does not etymologically nor functionally derive from section 1 — 15. For example, section 1 — 15 itself refers to supplemental petitions and section 5 — 3(3) (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 3(3) speaks of “a petition * * * charging a violation of a condition of probation or of conditional discharge * 0

Once the jurisdiction of the court is properly invoked and wardship decreed, that jurisdiction continues throughout the minority of the minor. (Ill. Rev. Stat. 1979, ch. 37, par. 705 — 11.) In our opinion “petition” as used in section 2 — 7(3) of the Juvenile Court Act means either (1) an original petition for wardship under section 4 — 1 in the case of one who is first being subjected to the jurisdiction of the court, or (2) a pleading seeking further or additional action by the court in the case of one who is subject to the continuing jurisdiction of the court. The instant case is obviously one of the latter variety.

In either event, we believe the more significant pleading is the motion under section 2 — 7(3). Under the statutory scheme, this acts as a limitation on sections 4 — 1 and 4 — 2. Section 4 — 1 is mandatory that the petition allege that it is in the best interests of the minor and of the public that he be adjudged a ward of the court, and section 4 — 2 is likewise mandatory that an adjudicatory hearing date be set upon the filing of the petition. All this looks toward an adjudication or dismissal within a short time. However, under section 2 — 7 (3) the motion stops this process and requires “investigation and hearing” by the court before proceeding to adjudication. If the motion be allowed, the underlying petition becomes moot and must be dismissed. If the motion be denied, the court may then proceed to adjudicatory hearing in the case of an original petition; or to punish as a violation of probation in the case of one already subject to its jurisdiction.

Since the motion is of such consequence, we do not believe that the form of the “petition” under section 2 — 7(3) is of critical importance so long as it is factually detailed as in the instant case.

Defendant further argues conceptual differences between a petition to revoke probation and criminal prosecution. He points out, correctly, that punishment for violation of probation is predicated on the offense, or offenses, for which probation was imposed and not for offenses committed subsequent to the granting of probation. He further points out, correctly, that if the motion to transfer had been denied, he could not have been punished for murder. He then seems to argue that the transfer is simply that of shifting the probation violation to the adult division of the trial court and that the State has elected to proceed in this manner. Thus, he cannot be punished for murder.

The argument overlooks the plain wording of section 2 — 7(3). The transfer is not of the revocation proceeding which by the explicit terms of the statute is required to be dismissed upon the filing of criminal charges. The transfer is in reality a relinquishment of the protections of the Juvenile Court Act in favor of criminal prosecution which itself becomes a new and original proceeding. The specific relief asked in the petition becomes immaterial once the accompanying motion has been allowed. It is not a case of transferring a cause from one division of the circuit court to another. It is the extinguishment of wardship insofar as the alleged acts are concerned and the initiation of criminal proceedings upon those acts.

The trial court proceeded correctly, and its action in allowing the State to prosecute under the criminal laws is affirmed.

Affirmed.

GREEN, P. J., and TRAPP, J., concur.


text:
    THOMAS G. PRESBREY, Plaintiff-Appellee, v. THE GILLETTE COMPANY, Defendant-Appellant.
    Second District
    No. 81-501
    Opinion filed May 5, 1982.

      Robert S. Soderstrom, of McKenna, Storer, Rowe, White & Farrug, of Chicago (Shaun McFarland, of counsel), for appellant.
    Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora (John R. Wienold and Bernard K. Weiler, of counsel), for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

A judgment in the amount of $23,750 was entered on a jury verdict in favor of Thomas G. Presbrey, the plaintiff, based upon his complaint that the use of Gillette Right Guard Extra Strength Anti-Perspirant caused a severe, persistent welting under his arms and on his chest together with a permanent inability to use all effective antiperspirants without a similar reaction. On appeal the defendant, The Gillette Company, contends that the judgment was against the manifest weight of the evidence, that prejudicial and reversible error prevented a fair trial, that verdicts should have been directed and alternatively that the verdict was excessive.

The plaintiff charged negligence in failure to sufficiently test the product, to warn of inherent dangers and to list and warn of the dangerous contents. There were additional counts based upon the theories of breach of express warranty and products liability. Essentially, the plaintiff’s case relied upon the testimony of Dr. Bernard Szuhaj, a biochemist, who concluded that plaintiff became permanently sensitive to products containing aluminum complexes similar to the aluminum zirconium complex (which the Extra Strength Right Guard contained) as a result of inhaling particles of the defendant’s aerosol spray product which created a systemic antigen-antibody reaction.

Dr. Bernard Szuhaj testified as a nontreating expert for the plaintiff. Before trial, Dr. Szuhaj was provided with certain documents from Gillette, the proposed regulation and the F.D.A.’s final ruling in the Federal Register, the formulation of aluminum-zirconyl hydroxychloride complex, particle size studies and defendant’s Zirconium Anti-Perspirant. He testified that he had read the particle size studies which found that 40% of the particles were below two microns; he said further, however, that according to certain calculations, that 72% of the particles were under 5 microns, small enough to be trapped by the cilia (protective hairs) which line the upper respiratory tract, thereby allowing the particles to penetrate more deeply into the lungs.

Dr. Szuhaj said that from inhaling these particles one could sustain an antigen-antibody reaction. An antigen is the invading, foreign matter; an antibody is produced by white blood cells as part of the immune response system to neutralize the antigen. The antibody couples with the antigen and covers it with a protective coating so that it can no longer irritate. As coupling occurs, a special chemical, histamine, is released as a consequence of which fluid enters the cells. The process surfaces finally in a welt or raised lesion.

On direct examination Dr. Szuhaj gave the opinion that the aluminum zirconium chloride complex was the operative antigen, without disclosing the basis for his opinion; on cross-examination, however, he said that he based his opinion on the results of a 90-day subacute inhalation test which Gillette had conducted on cynomolgus monkeys. It takes a repeated invasion of the aluminum zirconium chloride complex to build up a sensitivity reaction.

Dr. Szuhaj rendered his opinion based upon a hypothetical which contained the following facts as to which there was testimony in the record. A 15-year-old male with no previous allergies or other skin sensitivity had been using Right Guard Deodorant (brown can), and Right Guard Anti-Perspirant (silver can), on a daily basis since he was 12 years old without incident. In September 1973, he began using Gillette AntiPerspirant Aerosol Spray (white can). After 2M weeks’ use on a daily basis he developed a severe itching, red, raw, welting irritation, not only in the axilla area, but down either arm and down both sides. He stopped using the product for one week and the condition gradually healed. Within 24 hours of his using the product again, the same condition of welting, redness and soreness occurred and upon cessation of use the healing occurred in the following week or so.

Over objection the witness gave his opinion:

“[T]hat the Zirconium-Aluminum Complex that we are looking at today is probable in the cause of the reaction that the 15-year-old individual found at that time. That’s based on the immune response, the mechanism involved and detoxifying. ° *

In the form of a hypothetical question, Dr. Szuhaj was asked to assume the following facts and then give his opinion to a reasonable degree of scientific certainty as to the cause of bronchiolitis in monkeys who were tested by Gillette in October of 1973 with aluminum zirconyl hydroxychloride complex (AZAP-74-30):

“(1) Six cynomolgus monkeys have been submitted to subacute inhalation testing for a ninety-day period.
(2) At the end of the ninety-day period, the monkeys were sacrificed and microscopic pictures were taken of sections of their lungs.
(3) The anti-perspirant contained particles, approximately 72% of which were under the five micron level.
(4) At the end of the ninety-day period, bronchiolitis was observed in the lungs.”

Dr. Szuhaj was allowed to answer over objection that, based on the materials provided him through discovery, his expertise, and the professional literature on which he relied, that the lung inflammation indicated that “the immune process has already begun.” Based on Gillette’s test results, it was Szuhaj’s opinion that there should have been further testing “to explore the possibility of sensitizing human subjects.” He then stated that the same kind of sensitizing occurs in humans as occurred in the test monkeys. The antigen antibody reaction and later immunization is permanent and systemic — meaning that the antibodies circulate throughout the body. Significantly, this results in a raised lesion at the entry or the contact site of the antigen. He added that there is “more sensitizing” if the antigen is introduced topically.

Dr. Szuhaj was then asked to assume the additional facts that after the second eruption the individual used the Right Guard Anti-Perspirant in the silver can and the same eruption as from the white can occurred within 24 hours; then he used the deodorant in the brown can and encountered the same reaction. Asked whether within a reasonable degree of scientific certainty the use of the spray in the white can could be a causative factor of the new sensitivity to the other products and the subsequent eruptions, the witness answered “it is possible for this to be carried over to the other types of anti-perspirants, simply because we were talking initially about Aluminum-Zirconium. And the presence of Aluminum is the basis for other anti-perspirants. And Aluminum Complexes can also occur very similar to what we talked about with Zirconium.”

On cross-examination Dr. Szuhaj testified that the presence of lesions in the plaintiff’s lung could be verified only by an internal inspection through a “laparoscopic [sic]” examination, which was never performed on the plaintiff. Significantly, he explained that other people might not exhibit the plaintiff’s sensitivity, because their production of antibodies upon the introduction of the antigens might not be high enough to elicit a response. Dr. Szuhaj testified that his opinion of etiology would not change if a patch test with a 20% solution of aluminum chlorhydrate was performed on the plaintiff and he exhibited a negative reaction; but he did not explain. He characterized his testimony on causation as “theory” or “hypothesis.” He acknowledged that he had no formal training in dermatology or toxicology, and that he had never actually examined the plaintiff.

The trial court denied the defendant’s later motion to strike Dr. Szuhaj’s testimony.

Dr. Abraham Koransky, a dermatologist, performed various patch tests on the plaintiff. From the single patch test which he conducted on August 16, 1976, Dr. Koransky concluded that the plaintiff was permanently sensitive to an ingredient in Gillette’s Extra Strength Anti-Perspirant. Dr. Koransky could not determine the sensitizing ingredient, nor could he determine from one patch test whether the plaintiff was permanently sensitive to other similar preparations.

On June 24,1980, Dr. Koransky conducted six patch tests, the results of which are set forth below:

Product
Result
Right Guard Deodorant (brown can) (def.’s exhibit No. 4)
4+
Right Guard Anti-Perspirant (silver can) (def.’s exhibit No. 11)
1+
Dry Idea (def.’s exhibit No. 5)
negative
Alamay Rx-Anti-perspirant (def.’s exhibit No. 8)
negative
Ar-Ex spray deodorant (def.’s exhibit No. 10)
1+
Aluminum chloride (20% solution)
negative

Dr. Koransky concluded that the plaintiff was permanently sensitive only to the Right Guard in the brown can. He added that it would have been more desirable to test separately the individual ingredients contained in each deodorant product.

Dr. Koransky further said that the plaintiff’s condition appeared to be epidermal, not dermal. Epidermal sensitivity is based on contact with the sensitizing matter, whereas dermal sensitivity is systemic following the ingestion or inhalation of matter to which the individual is sensitive. It was Dr. Koransky’s opinion that the plaintiff’s problem was “contact sensitivity.”

Theodore Wernick, a toxicologist, testified for the defendant. He is chief compliance coordinator at Gillette Medical Evaluation Laboratories, and in 1973 was a medical review officer for Gillette, responsible for evaluating new products for compliance with government regulations and environmental standards. According to Wernick, before Gillette places a new product on the market, it is reviewed for safety by several medical review officers. They review the medical literature in the field, reports of adverse reactions, reports on the product, ingredients, or individual chemicals which the product contains, testing information, and applicable government regulations. Prior to giving medical approval of Gillette’s Right Guard Extra-Strength Anti-Perspirant, Gillette conducted various 14-day acute animal studies to determine the toxicity and level of irritation to the skin, eye, and lungs of laboratory mice and rabbits. Gillette also conducted 90-day subacute or subchronic animal tests to ascertain the toxicological effects, if any, following dermal application and inhalation. In addition, Gillette used human subjects in a 14-day skin patch test, to ascertain whether the product contained any primary irritants, and performed efficacy and consumer use studies. For the subacute inhalation test monkeys were supposed to be used; they were sick, however, and rabbits were used in their place. Wernick testified that rabbits were used because past experience had indicated that rabbits were comparable to monkeys. All tests, according to Wernick, were passed to Gillette’s satisfaction.

Gillette marketed the product before tests on other monkeys were completed, which tests were begun in July 1973. The product was voluntarily recalled by Gillette on October 1, 1973, approximately one month after its initial distribution. The test data disclosed that the monkeys had microscopic lesions in their lungs, a condition similar to bronchitis (inflammation) or a bad cold. Wernick said that the condition was not a granuloma but was granulomatous, meaning that the lung tissue was behaving in a way similar and prior to the onset of a granuloma.

When Gillette recalled its product, it notified the F.D.A. and also submitted its data to the F.D.A. Over Gillette’s objection, a portion of the F.D.A.’s final ruling, which was printed in the Federal Register, August 16, 1977, issue, was read into the record. That portion of the final ruling provides that aerosols containing zirconium are to be classified as a “new drug” and not generally recognized as safe and effective for use. The F.D.A.’s final ruling, which prevented the marketing of the Gillette product, applied to all aerosols containing zirconium complexes. The ruling did not apply to nonaerosols.

Before the F.D.A.’s final ruling of August 16, 1977, the notice of' proposed rule-making appearing in the Federal Register of June 5, 1975, indicates that the manufacturer of another antiperspirant containing a zirconium complex, zirconium-aluminum glycine complex, had been asked by the F.D.A. to submit its complete complaint file. This file contains 249 complaints received from the introduction of the non-Gillette product in June of 1973 to October 1973. By comparison, in the approximately one month period during which Gillette marketed its zirconium product, Gillette acknowledged receipt of only one complaint. It was Gillette policy, however, to destroy correspondence three years after the receipt. Presumably the 1973 files would have been destroyed by 1976, when the plaintiff filed his initial complaint.

Wernick noted that the F.D.A. did not find that aluminum zirconium complexes were sensitizers, because nonaerosols containing these complexes were unaffected by the F.D.A.’s final rule. Wernick added that the Gillette active ingredient, aluminum zirconyl hydroxychloride, was not a sensitizer but admitted that zirconium is an irritant and that, as part of the sodium zirconium lactate, it has caused granulomatous reactions.

Wernick also allowed that the production schedule and other marketing factors may have entered into his decision not to delay medical clearance before Gillette could evaluate the results on the 90-day subacute inhalation test on the test monkeys.

Wernick also testified that he was familiar with tests known as invitro studies which are conducted on living cells taken from the test subject. He stated that these studies could be performed on human cells and could serve as an indicator of the products response if it entered into the blood stream. Gillette conducted no such tests. Wernick also testified, however, that such tests are not generally used to predict responses.

Wernick was asked several hypothetical questions based on facts to which the plaintiff had testified, and to assume Dr. Koransky’s patch test results. Wernick concluded that given the 1976 patch test the hypothetical subject of the test was permanently allergic to the Right Guard in the white can. Wernick gave the following opinion as to what the 1980 patch test results disclosed:

(1) Right Guard Deodorant had a 4+ reaction. That would indicate that the subject had a sensitization or strong possible allergic type reaction to the type product of Right Guard Deodorant.
(2) Right Guard Anti-Perspirant had a 1+ reaction. 1+ is a fairly mild reaction. It is not indicative of an allergic reaction.
(3) Dry Idea Anti-Perspirant had a negative reaction. There is no possibility of allergic reaction.
(4) Alamay Rx Anti-Perspirant had a negative reaction. Again, there is no possibility of allergic reaction or sensitivity.
(5) Ar-Ex Spray Deodorant had a 1+ reaction, which is a very mild reaction and is not indicative of an allergy.
(6) The 20% solution of aluminum chloride was a negative reaction which again indicated no allergic response.

Based on the patch test, Wernick’s opinion to a reasonable degree of scientific certainty was that the subject was not permanently sensitive to zirconium. This opinion was based on the hypothetical subject’s negative reaction to Dry Idea, an antiperspirant containing aluminum zirconium. He additionally testified that if the hypothetical subject had a permanent sensitivity to all deodorants and antiperspirants containing aluminum chloride and its compounds, the subject’s reaction to a test of 20% solution of aluminum chloride should have been positive rather than the actually reported negative.

Dr. Wernick stated that if particles less than 10 microns entered the lung the body could respond to the invasion in one of several ways: (1) the body could expel the foreign matter; (2) the particles could enter the blood stream and either be used by the body or be expelled through the kidneys; (3) the particles might not circulate and induce any response; (4) the white blood cells might destroy the particles without any antigen-antibody reaction; (5) a granuloma might form; or (6) an antigen-antibody reaction might occur. He added that an antigen-antibody reaction as Dr. Szuhaj described would be “extremely rare.”

On cross-examination he agreed that once the antigen-antibody enters the blood stream it becomes systemic but again added that inhalation of a substance does not necessarily result in the formation of an antigen-antibody reaction.

Dr. Lester Hardy, president of Gillette Medical Evaluation Laboratories, who was responsible for all toxicology and safety evaluations at Gillette in 1973, testified that in one study 34% of the particles were less than 2 microns; in another 41% were less than 2 microns. He stated such studies are undertaken in part so that Gillette can properly evaluate animal inhalation data, but that Gillette’s studies are greatly exaggerated over normal human exposure. He was aware that particles below 10 microns can penetrate the lower lungs in man.

Hardy added that Gillette began marketing a zirconium aerosol because Gillette research indicated that zirconium was 10% more effective in reducing wetness that simple aluminum chlorhydrate. He further testified that he was aware that zirconium in a lactate derivative of salt, sodium zirconium lactate, reportedly caused granulomas in people, but that the sodium zirconium was different from the aluminum zirconium hydroxychloride complex which was the active ingredient in the Gillette Right Guard Extra Strength Anti-Perspirant.

He testified that he approved the October 1,1973, voluntary recall by Gillette of its antiperspirant based on the results of the 90-day subacute inhalation test in the monkeys. These results disclosed the formation of granulomatous lesions on the lungs of the test monkeys. He testified that if Gillette had known of these results it would not have marketed its zirconium aerosol.

Dr. Ronald Wise, a dermatologist, then testified. On December 30, 1978, he took a medical history and examined the plaintiff. According to the history which was then reduced to writing, the plaintiff complained of skin eruptions underneath his arms within 20 hours of initial contact with the zirconium aerosol. After this initial experience, the plaintiff could no longer use other antiperspirants without eliciting similar skin eruptions. Plaintiff also disclosed that he was slightly allergic to penicillin, but claimed to be in good health otherwise.

The plaintiff told Dr. Wise that the sores would scab over following inflammation. According to Dr. Wise, this indicated that the plaintiff had eczematous dermatitis. From his examination he concluded that the plaintiff’s response did not depend on circulating antibodies, which was contrary to Dr. Szuhaj’s expert opinion, but rather was “cell-mediated” as is usually observed in eczematous dermatitis. Lymphocytes rather than circulating antibodies are sensitive to the invading antigen.

The front of the defendant’s Zirconium Anti-Perspirant in the white can displays the following label:

“Gillette
RIGHT
GUARD
EXTRA STRENGTH ANTI-PERSPIRANT
for problem perspiration
NET WT. 8 OZ.”
The back of the can reads:
“EXTRA STRENGTH RIGHT GUARD
ANTI-PERSPIRANT
DEODORANT
* Checks Problem Perspiration Better
* Stops Odor * Lasts All Day ° Anti-Stain — Fights Stains
This new formula’s active ingredient is a combination of not just one but two anti-wetness agents. Goes on dry to keep you drier than any other leading spray. Made for people with more of a perspiration problem than others ... PROBLEM PERSPIRATION
TO USE: Hold can six inches from underarm, point arrow and push down to spray. If unit fails to operate, rinse the spray button in warm water, resume use as normal.
CAUTION: Never spray toward face or open flame. Keep from extreme heat or cold. Do not puncture or incinerate can. Do not apply to broken skin — if rash develops discontinue use. Keep out of reach of children. Use only as directed. Intentional misuse by deliberately concentrating and inhaling the contents can be harmful or fatal.
ACTIVE INGREDIENT: Aluminum-zirconyl Hydroxychloride complex.”

The defendant’s motion for directed verdict was denied, the jury returned a verdict for plaintiff in the sum of $23,750, and the trial court entered judgment thereon. The defendant’s motion for judgment notwithstanding the verdict was denied and this appeal has followed.

From the record before us we conclude that the trial court erred in failing to enter a judgment n.o.v. in favor of Gillette and that this issue is dispositive of the appeal.

In the only Illinois case which appears to have addressed the issue of allergic or idiosyncratic reactions the court held that a seller of a garment is not liable to the consumer who suffers an allergic reaction if the product contains no defect or ingredient which would cause harm to the “average” person. Stanton v. Sears Roebuck & Co. (1942), 312 Ill. App. 496, 500-01.

The unusual susceptibility of the consumer is generally recognized as a complete defense where the manufacturer did not know and had no reason to know that a very few users of his product might be injured. (See generally Prosser, Torts §96 (4th ed. 1971); Annot., 53 A.L.R.3d 298 (1973); Comment, Strict Liability and Allergic Drug Reaction, 47 Miss. L.J. 526, 527 (1976).) The cases collected adopt the view that if the product does not threaten severe harm to the ordinary consumer, then it is reasonably fit for the purpose for which it is sold. The benefit to the mass public who use the product is said to outweigh the harm suffered by the insignificant few. (Kaempfe v. Lehn & Fink Products Corp. (1964), 21 App. Div. 2d 197, 201-02, 249 N.Y.S.2d 840, 846; Thomas v. Gillette Co. (La. App. 1970), 230 So. 2d 870, 874-75; Bonowski v. Revlon, Inc. (1959), 251 Iowa 141, 145-47, 100 N.W.2d 5, 7-9.) The proximate cause of injury is attributed to the idiosyncrasy or allergy of the plaintiff and not to a failure to warn of a defect in the product. Howard v. Avon Products, Inc. (1964), 155 Colo. 444, 455, 395 P.2d 1007, 1012.

The courts have variously formulated the requirement that the consumer not be unusually susceptible to injury. Stanton appears to be in line with the majority view that speaks of the “normal,” “average” or “ordinary” consumer who, presumably, is not idiosyncratic. (3 Frumer & Friedman, Products Liability sec. 29.03(1) (1981).) Other courts elsewhere have said that a particular plaintiff is not idiosyncratic where a “small proportion” (Zirpola v. Adam Hat Stores, Inc. (1939), 122 N.J.L. 21, 4 A.2d 73; Reynolds v. Sunray Drug Co. (1947), 135 N.J.L. 475, 52 A.2d 666) or “some persons” (Bianchi v. Denholm & McKay Co. (1939), 302 Mass. 469, 19 N.E.2d 697) or an “identifiable” class (Howard v. Avon Products, Inc. (1964), 155 Colo. 444, 395 P.2d 1007), or an “appreciable” number (Casagrande v. F. W. Woolworth Co. (1960), 340 Mass. 552, 165 N.E.2d 109), or “a substantial” number of persons suffer injury. (Grau v. Procter & Gamble Co. (5th Cir. 1963), 324 F.2d 309 (applying Alabama law); Magee v. Wyeth Laboratories, Inc. (1963), 214 Cal. App. 2d 340, 29 CalRptr. 322.) We find most persuasive comment j to section 402A of the Second Restatement of Torts which provides, in effect, that where a product contains an ingredient to which a substantial number of the population is allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has actual or constructive knowledge thereof. Illinois law recognizes a cause of action for strict liability coinciding with the position taken by section 402A. Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 30-33; Gallee v. Sears, Roebuck & Co. (1978), 58 Ill. App. 3d 501, 503.

The rule barring the idiosyncratic consumer from recovery generally applies whether suit is brought under strict liability, breach of warranty, or negligence. (Prosser, Torts, secs. 96, 102 (4th ed. 1971).) Regardless of the plaintiff’s theory, the manufacturer owes no prior duty to warn of a risk that is remotely possible to the unknown few in the population. (Kaempfe v. Lehn & Fink Products Corp. (1964), 21 App. Div. 2d 197, 201, 249 N.Y.S.2d 840, 845.) The rule of nonliability has been relaxed, however, where the suit has not concerned an over-the-counter product, like an antiperspirant, but involved a drug or vaccine with dangerous propensities. (See Tomer v. American Home Products Corp. (1976), 170 Conn. 681, 690, 368 A.2d 35, 40; Davis v. Wyeth Laboratories, Inc. (9th Cir. 1968), 399 F.2d 121, 130; Sterling Drug, Inc. v. Cornish (8th Cir. 1966), 370 F.2d 82, 85.) These cases have rejected any exclusively quantitative standard in measuring the manufacturer’s duty, and look instead to the overall danger.

It is clear that the use of the Gillette Right Guard Extra Strength Anti-Perspirant (Extra Strength) caused an injurious reaction to the plaintiff. We conclude, however, that the evidence has failed to show that Gillette’s Extra Strength contained an ingredient to which a substantial number of the population is allergic. The aluminum zirconyl hydroxychloride complex in Extra Strength is not a primary irritant. There was nothing in the premarketing testing by Gillette to show that the product contained any ingredient which was injurious to a number of people. There was unimpeached testimony that the zirconium complex in the Extra Strength is not a known sensitizer; in fact, nonaerosols containing zirconium were unaffected by the F.D.A.’s final ruling. Evidence that the product’s ingredients were not known sensitizers or irritants in itself was sufficient to overcome any otherwise applicable presumption of plaintiff’s “normality” (see Casagrande v. F. W. Woolworth Co. (1960), 340 Mass. 552, 556, 165 N.E.2d 109, 112), and once Gillette carried the burden of going forward with this evidence, the jury could not infer that the product could permanently sensitize “normal” users from plaintiff’s testimony that he had not manifested sensitivity before using defendant’s product. (Kaempfe v. Lehn & Fink Products Corp. (1964), 21 App. Div. 2d 197, 201-02, 249 N.Y.S.2d 840, 846; Mountain v. Procter & Gamble Co. (E.D. Wis. 1970), 312 F. Supp. 534, 537; cf. Newmark v. Gimbels Inc. (1969), 54 N.J. 585, 598-99, 258 A.2d 697, 704.) Moreover, plaintiff’s expert witness’ testimony did not suggest that any number of potential users might develop plaintiff’s sensitivity from inhaling zirconium particles. The 90-day subacute inhalation test on six test monkeys did not lead to the inference that a substantial number of users might become permanently sensitized, but only indicated, as Dr. Szuhaj testified, that further research was warranted “to explore the possibility of sensitizing human subjects.” (Emphasis added.) Dr. Szuhaj testified that inhaling the antigen would induce an antibody response in people, but said further that different people would have different degrees of “reactivity.” Against Dr. Szuhaj’s theory, Wernick listed five ways in which the body could react in addition to an antigen-antibody response, which he characterized as “extremely rare.” Dr. Szuhaj’s testimony aside, there was no other evidence to link plaintiff’s sensitivity with the inhalation of airborne particles.

Further, there was no proof to sustain plaintiff’s allegation that use of the Gillette product caused plaintiff to become permanently sensitive to all other antiperspirants containing aluminum complexes. Dr. Koransky testified that plaintiff was permanently sensitive to some ingredient in the “Extra Strength” but could not determine the sensitizing ingredient. From his patch tests he concluded that plaintiff was permanently sensitive to another Gillette product, Right Guard Deodorant (brown can), but not to various other antiperspirants or to a 20% solution of aluminum chloride.

Based on these patch tests, Wernick concluded that the hypothetical plaintiff was not permanently sensitive to zirconium. This opinion was based on plaintiff’s negative reaction to Dry-Idea, an antiperspirant containing an aluminum zirconium complex. Also, he noted that if the subject had a permanent sensitivity to all deodorants and antiperspirants containing aluminum complexes, the reaction to the 20% aluminum chloride solution should have been positive rather than negative as reported. Dr. Szuhaj could not explain these observed negative reactions.

We conclude from the entire evidence that it is at least equally inferable, based on Dr. Koransky’s patch tests, that plaintiff is not permanently sensitive to other products containing aluminum complexes, contrary to Dr. Szuhaj’s conclusion. A fact cannot be inferred from the evidence when the existence of another fact inconsistent with the first can be inferred with equal certainty from the same evidence. See Lewis v. Mount Greenwood Bank (1980), 91 Ill. App. 3d 481, 486-87.

We recognize that the rule of nonliability has been relaxed by some courts where the defendant has breached an express warranty of safety to the ultimate consumer. (See cases collected in 63 Am. Jur. 2d Products Liability sec. 202 n.90 (1972).) Count II, alleging such a theory, is not supported by the evidence. The label did not promise complete safety; to the contrary, the instructions on the label directed that the consumer should discontinue use if a rash developed. Further, the “advertisements” to which plaintiff referred in count II of his amended complaint were never introduced in evidence. The mere listing of some ingredient in itself does not constitute a basis for an action in warranty. See Zampino v. Colgate-Palmolive Co. (1959), 8 App. Div. 2d 304, 306, 187 N.Y.S.2d 25, 27, appeal dismissed (1960), 7 N.Y.2d 995, 199 N.Y.S.2d 508.

From our review of the entire record, we conclude that the evidence so overwhelmingly favors defendant that no contrary verdict for plaintiff could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) Here, two examining dermatologists, Dr. Koransky and Dr. Wise, agreed that plaintiff’s observed sensitivity was not caused by circulating antibodies, but was epidermal, that is, based on contact sensitivity; also, there was uncontradicted testimony that the body could react in at least five ways inconsistent with an antigen-antibody response and that any such response was extremely rare. And, as noted earlier, plaintiff’s reaction to compounds containing aluminum was negative. A fact cannot be circumstantially established unless the circumstances are of a nature and so closely related that the conclusion offered is the only one that can be drawn; conjecture, guesswork, or suspicion are insufficient. (See Upgrade Corp. v. Michigan Carton Co. (1981), 97 Ill. App. 3d 1132, 1136; Lewis v. Mount Greenwood Bank (1980), 91 Ill. App. 3d 481, 486.) Dr. Szuhaj’s theory of etiology was too conjectural to withstand defendant’s post-trial motion for judgment n.o.v.

In this view of the case we do not reach other claims of trial error of which Gillette complains.

The judgment is reversed and the cause remanded to the trial court with directions to grant Gillette’s post-trial motion for judgment n.o.v. and to enter judgment in favor of the defendant.

Reversed and remanded with directions.

UNVERZAGT and VAN DEUSEN, JJ., concur.

       “Laparoscopy” refers to an examination of the interior of the abdomen. (Dorland’s Illustrated Medical Dictionary 836 (25th ed. 1974).) Dr. Szuhaj presumably meant a “bronchoscopic” examination, which refers to an examination of the interior of the bronchi. Id., at 229.