author: Mr. JUSTICE SIMKINS

text:
    The City of Champaign, Plaintiff-Appellee, v. Roy Allan Williams, Defendant-Appellant.
    (No. 12018;
    Fourth District —
    August 1, 1973.

      Frank J. Kopecky, of Springfield, (Dennis J. Jacobsen, Senior Law Student, of counsel,) for appellant.
    Albert Tuxhorn, City Attorney, of Champaign, and James W. Evans, Assistant City Attorney, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The defendant appeals from his conviction for violating a Champaign City Ordinance (sec. 22.207 of the Champaign City Code 1964) entitled “Disturbing Assemblages”.

The conduct of the defendant which lead to his arrest and conviction on the charge arose out of his uninvited attendance at a meeting on December 3, 1971, of the Board of Education of Community Unit School District No. 4 of Champaign County and a substantial number of the faculty and staff of Centennial High School. Since there is no controversy as to the facts of the case, a very brief résumé of the occurrence will suffice.

Due to some disciplinary difficulties at Centennial High School and the failure of the school board to take as firm a stand as some of the teachers felt was warranted, the teachers or administrators of the high school requested a meeting with the board of education to discuss the disciplinary problems and faculty discontent.

The entire board of education appeared at a meeting at the close of school on the day in question, as did the majority of the teaching and administrative personnel. The meeting was held in the Centennial High School cafeteria and was not a regularly scheduled school board meeting as to time, place, or the giving of notice.

Several other persons appeared but all except defendant complied with a request to leave. It appears that the defendant was asked to leave by the city community relations director (who himself left upon request), several teachers and board members individually; and upon the defendant’s request, the school board voted 7 to 0 to exclude the defendant. The school board attorney advised the defendant that under the Illinois “open meeting law”, the meeting could be closed to the public, but the defendant adamantly refused to leave. Although he did not interrupt the meeting by his entry nor did he make any verbal or physical disruption, the meeting was delayed for approximately one hour until the defendant was arrested by the Champaign city police and charged with disturbing a lawful assemblage.

On May 3, 1972, the defendant was tried, found guilty, and fined $20 plus costs.

The trial court, after finding that the defendant had created no disturbance under the undisputed facts, found that the meeting was a lawful assemblage within the meaning of the Champaign City Ordinance, and that even if the meeting was of the kind subject to the state statute on “Meetings of Public Agencies”, that statute does not declare a meeting not held in compliance with it to be unlawful. The court further found that the meeting was held at the request of employees— both teachers and administrators — with the employer-school board to discuss grievances, so was a teachers’ meeting and not a school board meeting. However, the court found that there was no collective bargaining such as to exempt the meeting from the “open meeting law”, nor did it come -under any of the other specified exemptions of the law, but rather, the meeting was not covered by the statute since it was not held as a school board meeting, its purpose not being to deliberate nor to take board action, and the meeting was not unlawful within the meaning of either the City Ordinance or the state “open meeting” statute, so was lawful.

The ordinance involved provides: “[I]t shall be unlawful for any person to disturb any lawful assemblage or gathering in the City.” The defendant’s contention is that the gathering in the high school cafeteria was a school board meeting, subject to the Illinois statute on “Meetings of Public Agencies” (Ill. Rev. Stat., ch. 102, pars. 41-44), and that by excluding the defendant, the meeting was rendered unlawful, so that defendant could not be convicted under the ordinance which only prohibits disturbing lawful assemblages. The parties frame the issue on appeal almost entirely around the status of the meeting, arguing whether or not the school board was “conducting business”, or “taking action”, or “deliberating”, as is required to be done openly by paragraph 41 of the statute, and whether or not the gathering was a meeting as defined in paragraph 42, and if so, whether or not the subject matter of the meeting entitled it to an exception to the “open meeting law”.

We feel that this issue is not determinative in light of the particular ordinance involved and the findings of the trial court.

The evidence to the effect that the meeting was initiated by the teachers or school administrators, with the school board members attending as a matter of courtesy to explain their policy on expulsion of students, clearly supports the trial court’s finding that the gathering was not a regular school board meeting. That finding alone would not necessarily exempt the gathering from the confines of paragraphs 41 and 42 of chapter 102, but it is unnecessary to delve deeper into the precise status of the meeting as to what actions could be taken or matters discussed. The Champaign Ordinance is not concerned with whether particular actions taken at a meeting would be lawful or not. Regardless of whether or not the gathering at the school would constitute a legal meeting so that the school board could legitimately hire and fire employees or buy and sell property, the assemblage of the teachers and board members was lawful. Neither the propriety of the meeting nor the conduct of the defendant was tried under chapter 102, paragraph 41, et seq. in this case. The issue before the trial court was whether or not defendant was guilty of disturbing a lawful assemblage.

The court found no “disturbance” — apparently meaning in a physical or verbal sense — but yet found the defendant guilty of disturbing an assemblage. The silent, passive presence of the defendant which resulted in the participants of the meeting delaying their discussion could be the only basis of that finding of guilty. Since the ordinance does not define “disturb” it must be construed as in its ordinary usage.

In State v. Davis, 21 Ohio App.2d 261, 257 N.E.2d 79, the court turned to Webster’s Unabridged Dictionary for the definition of “disturb” saying that the definition and meaning was of common understanding. The term “disturb” as used in the New York Statute prohibiting the wilful disturbance of any assembly or meeting, means to throw into disorder; to move from a state of rest or regular order; to interrupt; to throw out of course or order. (People v. Malone, 141 N.Y.S. 149, 156 App. Div. 10.) Other cases state that some noise, indecent behavior, or other act is required (Nix v. State, 27 Ala.App. 388, 173 So, 98), and the disturbance or interruption of the meeting must be great enough to have such effect without voluntary cooperation on the part of those present. Fowler v. State, 93 Ga.App. 883, 93 S.E.2d 183.

Without reaching the constitutionality of the Champaign City Ordinance, the United States Supreme Court cases, Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471, and Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, should be noted for the proposition that mere noise or presence or the fact that the defendant’s activity bothers or agitates someone else is not sufficient to constitute disturbing the peace or breaching the peace.

City of Chicago v. Meyer, 44 Ill.2d 1, 253 N.E.2d 400, involved a conviction for disorderly conduct, which provides that doing any act in such an unreasonable manner as to alarm or disturb another will constitute the offense, but held that mere eccentric or unconventional conduct, no matter how-irritable to others, is not enough. (Ill. Rev. Stat., ch. 38, par. 26 — 1.) In referring to the section on alarming or disturbing another, it has been held that a spectator’s activity (jumping to his feet and shouting) which prevents orderly continuation of a public hearing falls within the prohibition of the statute. U.S. v. Woodard (7th Cir.) 376 F.2d 136.

Gregory v. Chicago, 394 U.S. Ill, 89 S.Ct. 946, 22 L.Ed.2d 134, involved a city ordinance on disorderly conduct. The defendants were peaceful and orderly — it was the onlookers who became unruly. The Supreme Court said “There is no evidence in this record that petitioners’ conduct was disorderly. Therefore, under the principle first established in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, 80 A.L.R.2d 1355 (1960), convictions so totally devoid of evidentiary support violate due process.” Other language of that case may have some bearing on defendant Williams’ conviction for disturbing a meeting after a finding that there was no disturbance. There, the Illinois Supreme Court had suggested that the petitioners were convicted not for the manner in which they conducted their march, but rather for their refusal to disperse when requested to do so by the police. However, they were only charged with disorderly conduct in holding a demonstration, and not with refusal to obey a police officer. The United States Supreme Court held that: “‘[I]t is as much a denial of due process to send an accused to prison following conviction for a charge that was never made as it is to convict him upon a charge for which there is no evidence to support that conviction.’ [citation.]”

In Chicago v. Perez, 45 Ill.2d 258, 259 N.E.2d 4, defendants were convicted under the City “Disorderly Conduct” ordinance where they had congregated in the building in which the welfare offices were located and refused to leave even after closing hours. The conviction was reversed because there was no evidence that defendants made any improper noise, riot, disturbance, or breach of the peace, as were elements of the ordinance. The IHinois Supreme Court said that whHe the defendants’ conduct in remaining in the building after it closed and they had been asked to leave might constitute criminal trespass or some other offense, it did not amount to disorderly conduct. Likewise, in the instant case, defendant’s conduct may have been in some way wrongful, but did not constitute disturbing an assemblage.

Therefore, regardless of the status of the meeting under the so-called “open meeting” statute, it clearly was a lawful assemblage or gathering under the Champaign City ordinance. The trial court found that “[A]t no time did the defendant cause a disturbance whffe in the cafeteria # * *” and yet convicted him on the charge of disturbing a lawful assemblage because the persons meeting chose not to continue simply because of the presence of the defendant. It need not be decided whether or not the IHinois “open meeting” statute gave defendant the right to be at the meeting to determine that his conviction for disturbing a lawful assemblage was improper in the face of the court’s finding no disturbance as that term is normally used. Therefore, defendant’s conviction must be reversed.

Conviction reversed.

CRAVEN, P. J., and TRAPP, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. James L. Dennison, Defendant-Appellee.
    (No. 11792;
    Fourth District —
    August 9, 1973.

      John G. Satter, Jr., State’s Attorney, of Pontiac, for the People.
    Peter F. Ferracuti, of Ottawa, (John Panegasser, of counsel,) for appellee.
   Mr. JUSTICE

TRAPP delivered the opinion of the court:

The State appeals from an order of the trial court suppressing the confession and admissions made by defendant.

The information filed charges of murder and involuntary manslaughter occurring on August 25, 1970. On August 26th, the defendant was in custody at the county jail where he was interrogated by the State’s Attorney in the presence of the sheriff and a reporter.

Following a partial statement of the Miranda rights, we note:

“Q. Do you want to explain to me what happened last night? A. I would rather not talle about it right now.
Q. If you like, you can stop at any time and refuse to answer any further questions. You have a right to request that a lawyer be contacted if you want a lawyer. Would you want to talk about this at least partly?
A. I would rather not.
Q. Is there anything at all you would like to say at this time? A. No.
Q. Do you want to talk to a lawyer, sir?
A. No. What am I charged for?
Q. Involuntary manslaughter. This is one of the reasons — I want to find out what happened. It is pretty hard for me as State’s Attorney to charge you with anything until I find out what happened last night.
A. I don’t want to talk about it. I am scared they will hang me.
Q. What do you mean?
A. I don’t know. I don’t know when it started or anything.
Q. Had you been drinking last night?
A. Yes.
Q. Did you feel under the influence of liquor?
A. Yes.
Q. Do you realize what happened last night?
A. Yes.
Q. Don’t you think you should talk about it, don’t you think you would feel better if you got it off your chest?
A. All I know, I hit him.”

The written order of the trial court found that the transcript of the statement of defendant;

“[I]ndicates. that the defendant did in fact clearly indicate that he chose not to be questioned, and that the States Attorney did persist in questions and statements calculated to induce the defendant to respond to such questions”,

and that there was a clear violation of the statement in Miranda v. Arizona, 384 U.S. 436, S.Ct. 1602, 16 L.Ed.2d 694, where it is said at p. 723:

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after tire person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after tire privilege has' been once invoked.”

Where the record shows no clear waiver of his rights by defendant, the statements are inadmissible. (People v. Landgham, 122 Ill.App.2d 9, 257 N.E.2d 484.) There is no authority which supports the State’s Attorney’s argument that the statements are admissible where the record does not show an “absolute refusal”. His argument that defendant’s inquiry as to the charge suffices to initiate a voluntary conversation has no value as indicating a waiver of the prior refusals to make a statement.

The record, moreover, shows that defendant repeated his wish not to discuss the matter following such inquiry. The continued questioning despite the statement of defendant’s right not to speak would make it appear that the exercise of the rights concerned in Miranda merely depended upon the State’s Attorney’s persistence and his will to make defendant speak. Nothing in this record reflects a voluntary relinquishment of the rights stated in Miranda.

The State cites People v. Myles, 132 Ill.App.2d 962, 271 N.E.2d 62; People v. Hill, 6 Ill.App.3d 746, 286 N.E.2d 764 and People v. Walker, 2 Ill.App.3d 1026, 279 N.E.2d 23. In Hitt and Walker, the trial court found the presence of voluntary statements made by defendant. In neither case were there statements which, as here, reflected that defendant did not wish to speak about the case. In Myles, the records supported the conclusion that the inculpatory statements were voluntary.

The opinion further notes a conclusion of harmless error by reason of the strong evidence of guilt.

The judgment is affirmed.

Affirmed.

CRAVEN, P. J., and SIMKINS, J., concur,


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Bruce Santoro, Petitioner-Appellant.
    (No. 57310;
    First District (2nd Division) —
    June 5, 1973.

      Supplemental opinion upon denial of rehearing August 28,1973.

    Paul Bradley, of Defender Project, of Chicago, (Kenneth L. Jones, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (James Veldman and Douglas Cannon, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

DOWNING, J., took no part.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Emery J. Hackbert, Defendant-Appellant.
    (No. 72-262;
    Second District —
    August 13, 1973.
    Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    F. Lawrence Lenz, State’s Attorney, of Freeport, and James W. Jerz, of Model District State’s Attorneys Office, of Elgin, for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Emery J. Hackbert, the defendant, was indicted for forgery in violation of section 17 — 3(a) (2) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 17 — 3(a)(2)). Pursuant to negotiations, defendant pleaded guilty and was sentenced to three years probation conditioned on his serving the first eight months at Vandalia.

On appeal, defendant contends that the court erred in entering final judgment on the guilty plea when it had substantial reason to believe that the essential element of intent was absent. We find no merit in his argument under the circumstances of this case.

The indictment was read to the defendant and the included copy of the admittedly forged check was shown to him. He acknowledged an understanding of the charge. Represented by the public defender, he was thoroughly admonished in compliance with Supreme Court Rule 402. To establish the factual basis the court first asked defendant if he was pleading guilty because he did in fact do what was charged in the indictment, to which the defendant answered “yes.” The court then asked the prosecutor for any further factual basis for the plea, to which the prosecutor responded:

“On the date of January 30, 1972, the defendant was a resident of the Senate Hotel in Freeport. A person named Jesse Meier was employed as the desk clerk at the Senate Hotel. The defendant came to Mr. Meier and asked that Meier cash a check for the defendant and the defendant represented that he was the payee, Robert Becker, named in the check. The check was in the amount of $30 drawn on the American Trust and Savings Bank, payable to Robert Becker, and drawn on the account of E. J. Hoffman, account #187502. The defendant endorsed the check, Robert Becker, 2412 South 24th, Phoenix, Arizona, then delivered the check to Jesse Meier and received $30 United States currency. The person Mr. Meier became suspicious about the man, so he called the bank at Dubuque, Iowa and was informed that there was no customer in their bank by the name of E. J. Hoffman nor was there an account #187502. The Clerk then made a report of that fact to the Freeport Police Department and the Police Department were able to apprehend the defendant; and at the time they apprehended him and identified themselves as officers of the Police Department, the defendant stated that he knew why they were there and apprehending him. I have nothing further, your Honor.”

At the hearing in aggravation and mitigation three prior convictions, deceptive practices in Illinois, the false uttering of a check in Iowa and the violation of the check law of Kansas, were placed in the record. The defendant then made a statement in his own behalf in mitigation. He said that when he gave tire man the check it was on a Sunday and it was going to be held until Monday and then defendant was to pay it back; that when the police came to pick him up he was at Western Union to get a money order for that purpose. He also said that the hotel had his clothes which they were holding until he got the money and that he talked to the manager twice on Monday. Defendant claims that this statement substantially negated the essential element of the intent to defraud. He seeks to justify the arrangement and agreement with the hotel clerk as amounting to a loan or a form of secured transaction. However, as the State points out, this explanation does not negative the necessary intent under the crime charged. It is clear from the record that at the time the check was given, the hotel clerk was unaware that it was a forgery. Therefore, even accepting defendant’s explanation that the forged check was given as a security for a loan and that he intended to repay at a later time, the necessary criminal intent was shown under the statute. The statute (Ill. Rev. Stat. 1971, ch. 38, par. 17 — 3(b)) defines the necessary intent:

“An intent to defraud means an intention to cause another to assume, create, transfer, alter or terminate any right, obligation or power with reference to any person or property.”

Defendant’s conduct, even assuming he intended that the check not be cashed because he would provide the cash later, was criminal because the forged check was delivered to the clerk in exchange for the $30. Giving a false security in the form of a promissory instrument has been recognized as the subject of a forgery. (People v. Goldstein (1938), 368 Ill. 50, 55.) If the forged instrument is uttered, the intent to defraud is presumed. People v. Bailey (1958), 15 Ill.2d 18, 23-24. See also People v. Goldstein (1938), 368 Ill. 50, 55.

There thus appears on the record a more than sufficient factual basis upon which the court could have reasonably concluded that defendant committed the act of delivering a forged check with the requisite intent to defraud. (People v. Rowell (abstract opinion, 1973), 11 Ill. App.3d 203; People v. Hudson (1972), 7 Ill.App.3d 800, 803.) People v. Farnsworth (1973), 10 Ill.App.3d 844, cited by defendant as additional authority is clearly distinguishable on its facts.

We have taken with the case defendant’s motion for summary modification of sentence under the Uniform Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008 — 2—4) together with objections by the State. Defendant argues in effect that his probation time should be doubly credited with the time he spent in Vandalia as a condition of that probation. We conclude that the objections to the motion are weU taken. The “split sentence” was authorized when imposed, and also when defendant was released from incarceration. If the provisions of the new Code are now applied to the sentence as a whole the defendant would have the identical remaining probation time to be served since he was given probation time credit for the time served in Vandaha. No authority has been cited or found which would entitle the defendant to have his probation time further reduced under these circumstances. The motion is therefore denied.

The judgment below is affirmed.

Affirmed.

GUILD, P. J., and DIXON, J., concur.


text:
    The Department of Revenue, Plaintiff-Appellant, v. Jamb Discount et al., Defendants-Appellees.
    (No. 72-303;
    Second District —
    August 13, 1973.

      William J. Scott, Attorney General, of Chicago, (Paul J. Bargiel, Assistant Attorney General, of counsel,) for appellant.
    Geister, Schnell, Richards & Brown, of Elgin, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Department of Revenue, appeals from an order granting defendants’ motion to strike certain portions of plaintiff’s complaint. The Department having elected to stand on its complaint, judgment was entered in favor of the defendants and against the plaintiff. At issue is the construction and operation of section 18b of the Cigarette Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 453.18b), which provides for recovery of penalties in a civil action for possession of unstamped packages of cigarettes.

The complaint alleged in substance, that the dependant McHenry-Eby Brown Company was a wholesale distributor of cigarettes; that under section 2 of the Cigarette Tax Act (Ill. Rev. Stat. 1969, ch. 120, par. 453.2) such distributor was to affix the required tax stamps to each package of cigarettes, and collect the tax from the retailer at or before the time of sale; that under section 18 of the Act (Ill. Rev. Stat. 1969, ch. 120, par. 453.18) unstamped packages of cigarettes are subject to seizure and forfeiture; and that under section 13 of the Act (Ill. Rev. Stat. 1969, ch. 120, par. 453.13) packages found without proper stamps are prima facie evidence of violation of the Act; that on July 9th, 1971, pursuant to section 18, 339 packages of unstamped cigarettes were seized in the possession of the defendant Jamb Discount.

The further allegations of the complaint, stricken on defendant’s motion, were that after the seizure the Department, pursuant to section 18a of the Act (Ill. Rev. Stat. 1969, ch. 120, par. 453.18a), sent defendants notice of a hearing to be held on November 30, 1971; that following the notice a hearing was held by the Department in which it was determined that the cigarettes seized were not stamped as provided by statute; that a report of the hearing was sent to defendants (copies of the notice and report were attached); that section 18b of the Cigarette Tax Act (Ill. Rev. Stat. 1969, ch. 120, par. 453.18b) provides:

“tt * * anyone possessing cigarettes contained in original packages which are not tax stamped as required by this Act * * * shall be liable to pay, to the Department for deposit in the State Treasury, a penalty of $10.00 for each such package of cigarettes in excess of 100 packages. Such penalty may be recovered by the Department in a civil action; * *

that defendants did not seek administrative review; and that under section 18b the Department had determined that there is due $2390, being a penalty of $10 for each package seized (in excess of 100), for which it prayed judgment against the defendants. A separate judgment was requested against the defendant McHenry-Eby Brown Company for $40.68, being the tax of 12 cents per package being imposed under section 2 for the 339 packages of cigarettes sold to defendant Jamb Discount.

The motion of the defendants to strike the complaint was predicated on the theory that the only authority granted the Department of Revenue was the right to seize and confiscate improperly stamped cigarettes under the provisions of section 18a; that such action was the only administrative action taken by the Department or which could be taken by it; and that the provisions of section 18b involve a separate procedure in the courts permitting a trial de novo; that in such trial the Department has the burden to establish its case by competent evidence and may not rely on the determination of the hearing officer that the cigarettes were not tax stamped or imprinted as res judicata of the violation. The motion also alleged that the complaint did not charge that defendant McHenry-Eby Brown Company was in possession of any unstamped cigarettes which would make it liable under section 18b and that in any event it would be exempt as a licensed distributor.

The Department contends that the civil action contemplated under section 18b is in the nature of a debt to collect the penalty automatically imposed by the section 18a finding that no stamps were affixed; and that defendants are bound by the findings in the administrative hearing under section 18a since they defaulted and did not seek administrative review.

We initially conclude that while the question is not free from all doubt, the Department’s construction of the statute is the more reasonable one. It is true that the Cigarette Tax Act does not contain express language authorizing the Department to impose the $10 per package penalty of section 18b in its administrative hearing; and that, as defendants point out as an analogy, the legislature did provide such express authority when it was dealing with Cigarette Tax Act returns and the failure to pay cigarette taxes under section 9a of the Act. (Ill. Rev. Stat. 1971, ch. 120, par. 453.9a.) However, the extensive language found in section 9a is unnecessary to support the construction of section 18b that the Department urges. Language similar to that found in section 18b creating liability to pay the penalty to the Department for possessing packages of cigarettes which are not tax stamped or which are improperly tax stamped has been held sufficient to create the right to determine and impose the penalty in an administrative hearing, to be collected in a civil suit without a trial de novo. See W. J. Dillner Trans. Co. v. Pennsylvania Public Utilities Com. (Pa. 1959), 155 A.2d 429, 434-435; York Tel. & Tel. Co. v. Pennsylvania Public Utilities Com. (Pa. 1956), 121 A.2d 605, 613; Wycoff Co. v. Public Service Com. (Utah 1962), 369 P.2d 283, 285.

Section 18b does not authorize the court rather than the Department to make the initial penalty assessment. Of course, someone must assess the penalty before it may be recovered. By using the word “recovered” in connection with the civil action authorized by section 18b, we believe the legislature indicated that the amount owed and liability therefore has already been determined in the prior administrative proceeding contemplated by section 18a. See W. J. Dillner Trans. Co. v. Pennsylvania Public Utilities Com. (Pa. 1959), 155 A.2d 429, 434-435.

Since the amount of the penalty is determined by the number of packages not properly stamped, and the section 18a proceeding will resolve this relatively uncomplicated factual issue, the assessment of the penalty becomes merely a ministerial and mechanical act, assuming the Department does in fact seek to impose the penalty. Under such circumstances it seems unlikely that the- legislature intended that the court go through the same factual determination in a trial de novo, duplicating the attendance of witnesses and tire presentation of evidence. Since the Department would seize and seek to confiscate unstamped packages of cigarettes from those in possession of them, section 18a logically provides for the hearing in which the section 18b liability is also determined. It would thus seem to follow that the legislature intended to give the Department the authority to impose the section 18b penalty at the administrative level, and intended to provide for recovery of the penalty, once imposed, by means of a civil action reducing it to judgment, the Department having no inherent administrative power to collect the penalty. People ex rel. Isaacs v. Johnson (1962), 26 Ill.2d 268, 272-274; Oliver v. Civil Service Com. (1967), 80 Ill.App.2d 329, 334.

We therefore conclude that the Department has the authority upon appropriate findings to assess a penalty pursuant, to section 18b in a section 18a proceeding. And it would follow, in our view, that once the Department’s authority in this regard is implied from the Act, its findings in the section 18a proceeding can only be challenged on review under the Administrative Review Act. The Department’s findings and penalty order cannot be challenged, other than on jurisdictional grounds, in an action to reduce the amount assessed to a judgment. Department of Finance v. Gold (1938), 369 Ill. 497, 502-507; Department of Revenue v. Steacy (1968), 38 Ill.2d 581, 583.

While we hold the Department has the authority, when proper notice is given, to assess section 18b penalties upon appropriate findings at tire conclusion of the proceedings conducted pursuant to section 18a, we must conclude on the record of the pleadings before us that the Department has not stated a cause of action for recovery of the penalties in the instant case, and that therefore the judgment of the court below, dismissing the complaint, was proper.

The notice of the administrative hearing, a copy of which is made a part of the complaint, advised the defendants in pertinent part, as follows:

“YOU ARE HERERY NOTIFIED, in accordance with the provisions of Sections 8, 10, and 18a of the Illinois “Cigarette Tax
Act,” * * * that a hearing will be held * * *.
e e #
As a result of said HEARING it will be determined whether any of such original packages of cigarettes did not have stamps affixed thereto as required by said Act; also, whether or not any of such vending devices contained original packages of cigarettes not stamped as required by said Act.
Upon your failure to appear at the said hearing, the Department of Revenue may confiscate and forfeit to the State of Illinois any original packages of cigarettes which did not have stamps affixed thereto as required by said Act, and also may confiscate and forfeit to the State any vending devices which contained original packages of cigarettes not stamped as required by said Act.”

No reference is made to any penalty assessment. Further, the report of the hearing officer, also made a part of the complaint, concludes:

“# o # [jjt js the finding of the Department that the aforementioned original packages of cigarettes did not have affixed thereto Illinois Cigarette Revenue tax stamps or tax imprinting as required by the Illinois Cigarette Tax Act. It is therefore declared that the aforementioned original packages of cigarettes be and they are hereby confiscated and forfeited to the State of Illinois pursuant to Section 453.18a, Chapter 120, Illinois Revised Statutes, as amended.”

The report contains no reference to a finding that any penalty has been determined.

Procedural due process requires that notice be given of the claim asserted. The right to a hearing includes not only the right to present evidence but also a reasonable opportunity to know what claims must be defended against and what consequences are proposed. (See Morgan v. United States (1938), 304 U.S. 1, 18-19, 82 L.Ed. 1129, 1132, 1133, 58 S.Ct. 773, 776; Simon v. Craft (1901), 182 U.S. 427, 437, 45 L.Ed. 1165, 1171. See also Bruce v. Dept. of Registration & Education (1963), 26 Ill.2d 612, 620, 621-622.) In order to be effectual, notice should be so full and clear as to disclose to persons of ordinary intelligence what is proposed. (Bellingham Bay & British Columbia R.R. Co. v. City of New Whatcom (1898), 172 U.S. 314, 318, 43 L.Ed. 460, 462.) The test is whether the defendant should have anticipated the effects and orders possible. Tagg Bros, & Moorhead v. United States (1929), 280 U.S. 420, 439-440, 74 L.Ed. 524, 50 S.Ct. 220, 224-225.

In the instant case, the notice given to defendants not only omits any mention of possible imposition of penalties, but also by its definite references to what consequences might occur as a result of the hearing could mislead the reader into reasonably believing no other consequences would accrue by defaulting. The notice, in its preface, states it is given in accordance with sections 8, 10 and 18a of the Cigarette Tax Act, but no reference to the penalty provision, section 18b, is made. Since alternate constructions of the interrelation between sections 18a and 18b are possible and the Department is urging on appeal the adoption of a construction not previously passed upon by our courts, defendants should have been clearly notified at the administrative level before the hearing that the Department might there invoke the penalty provisions of section 18b. (See Northeastern Indiana Building & Construction Tr. Coun. v. N.L.R.B. (D.C. Cir. 1965), 352 F.2d 696, 699.) Additionally, since recovery of the penalty under section 18b is discretionary with the Department, the absence of reference to an intent to seek it would suggest to defendants that a penalty was not an anticipated consequence if they failed to appear.

A further bar to the imposition of the penalty is the fact that no finding was made at the close of the section 18a proceeding imposing a penalty. In other words no “debt” was ever created to be “recovered” in the civil action. Moreover, if we accept the procedure taken by the Department in this case to collect penalties under sections 18a and 18b, defendants will be deprived of their right to administrative review since no order imposing a penalty which could be reviewed is ever rendered.

While it does not become material in view of our holding, we comment that a section 18a finding that tire packages were not properly stamped, would in any event not conclude the defendant McHenry-Eby Brown. The distributor’s liability is not dependent here on the provisions of section 18a or 18b but upon section 2 and procedures outlined in subsequent sections for collection of the cigarette tax from distributors. E.g., Ill. Rev. Stat. 1971, ch. 120, par. 453.9a.

The judgment of the trial court dismissing the complaint is affirmed.

Affirmed.

GUILD, P. J., and T. MORAN, J., concur.

       Providing in pertinent part as follows:
      “After seizing any original packages of cigarettes, * * * the Department shall hold a hearing and shall determine whether such original packages of cigarettes, at the time of their seizure by the Department, were not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages in accordance with this Act, * * *. The Department shall give not less than 7 days’ notice of the time and place of such hearing to the owner of such property if he is known, and also to the person in whose possession the property so taken was found, if such person is known and if such person in possession is not the owner of said property. * * *
      If, as the result of such hearing, the Department shall determine that the original packages of cigarettes seized were at the time of seizure not tax stamped or tax imprinted underneath the sealed transparent wrapper of such original packages as required by this Act, * * * the Department shall enter an order declaring such original packages of cigarettes ° * * confiscated and forfeited to the State- * *


author: Mr. JUSTICE TRAPP.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earlie Mae Perkins, Defendant-Appellant.
    (No. 11742;
    Fourth District —
    August 9, 1973.
    Linda West Conley, Assistant Public Defender, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Scott B. Diamond, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. JUSTICE TRAPP.


author: Mr. JUSTICE SIMKINS Mr. JUSTICE TRAPP,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Porter, Jr., Defendant-Appellant.
    (No. 11843;
    Fourth District —
    August 9, 1973.

      TRAPP, J., dissenting.
    John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Defender of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, and James W. Jerz and Betty Compbell Wolf, of Model District State’s Attorneys Office, of Elgin, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The defendant, Richard Porter, Jr., was convicted of the unlawful sale of a narcotic drag in violation of Illinois Revised Statute, chapter 38, paragraph 22 — 3.

The offense arose out of the sale of four capsules of heroin to an addict-informer on September 30, 1969. Three special agents of the Illinois Bureau of Investigation, which employed the informant, testified that they searched him and his car, gave him $20 and then followed him to the defendant’s home. The agents observed the informant enter the house where defendant lived with his mother and soon emerge accompanied by the defendant. The informant then departed and turned four capsules of heroin over to the agents. The agents testified that the informant was in their view at all times except the minute or two while he was in the defendant’s home and that he was not close enough to any other persons to have received the narcotics.

Defendant’s mother testified that she answered the door when the informant came and that he and her son then went outside to talk. The informant testified that when he entered the house he saw no one other than the defendant who gave him four capsules of heroin in exchange for $20.

The defendant contends that he was not proved guilty beyond a reasonable doubt since the only evidence against him was based on the testimony of an addict-informer.

The testimony of an addict-informer is to be viewed with great suspicion and the general rule is that a narcotics conviction may not rest on the uncorroborated testimony of such a person. (People v. Bazemore, 25 Ill,2d 74, 182 N.E.2d 649.) However, that case and others cited by the defendant involved a situation where there was minimal police surveillance of the transaction to corroborate such testimony, generally where the informant made the purchase in a public place such as a pool hall so that 0 * the informer was at liberty to name almost any person he wished to select as the guilty one.” 25 Ill.2d, at 77.

Testimony of an addict-informer may be believed, especially when it is corroborated by other witnesses. (People v. Smith, 40 Ill.2d 501, 241 N.E.2d 185.) Convictions may be affirmed where the actual exchange was not witnessed if attendant circumstances lend credence to the informer’s testimony. (People v. Hill, 83 Ill.App.2d 116, 227 N.E.2d 117.) In the instant case, the addict-informer’s testimony is credible under the surrounding circumstances and where the trier of fact saw and heard the informant’s testimony, this court will not substitute its judgment on the matter of credibility of the testimony and the weight to be given it.

The defendant raises the issue of undue restriction on his cross-examination of the addict-informer as to the informant’s recent involvement with narcotics and any additional convictions since the ones previously disclosed, and the state’s failure to disclose a 1970 conviction for the sale of a non-narcotic substance as a narcotic. The state had disclosed and fully brought out at trial that the informant had four earlier convictions and was a former user and addict of narcotics. Therefore, the non-disclosure of the 1970 offense which occurred after the controlled sale to defendant Porter and to which the informer plead guilty and received six years probation before defendant Porter’s trial began, would not greatly affect the jury’s evaluation of the informant’s credibility, nor would it constitute the knowing suppression of evidence favorable to the defendant as condemned in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. This issue need not be pursued further since we have determined that other grounds require a new trial.

During the state’s attorney’s redirect examination of the addict-informer, the following exchange took place:

“Q. With respect to your work for the Illinois Division of Narcotics, Mr. Wesley, were you — did you cut yourself into Mr. Horton, Combread?
A. I did.
Q. And did you cut yourself into any other subjects with respect to the sale of narcotics?
A. I did.
Q. And these were in 1969, is that correct?
A. Right.
Q. Did you cut yourself into Richard Porter?
A. I did.
Q. Was Richard Porter a pusher?
MR. CASPER: Your Honor, I object to this line of questioning.
THE COURT: The objection is overruled. Proceed. Answer the question.
A. At this particular time he was.
MR. LOCHER: He was?
A. (No audible answer. Witness nods his head.) I would like to — .
THE COURT: You have answered the question. That’s all. Proceed.”

The defense later made an oral motion to strike the question and answer as to whether the defendant was a “pusher.” The court denied the motion saying there was no objection made at the time the question was asked and answered. The court approved the agreement reached by the state’s attorney and the defense counsel that the state’s attorney would not use the term “pusher” before the jury except with reference to the particular occurrence giving rise to the case being tried.

The state argues that because the testimony was adduced while establishing how the addict-informer happened to know who to approach for narcotics and came to be in a position to be trusted by such persons, that the evidence is proper because not elicited for purposes of showing a propensity in the defendant to commit the offense. In support of that argument, the state cites People v. Cole, 29 Ill.2d 501, 194 N.E.2d 269, where evidence of prior sales of narcotics by the defendant to a federal agent was approved where the prior transaction explained and lent credence to the otherwise unrealistic circumstances of the controlled purchase. However, in the instant case, the addict-informer had already disclosed the history and background of his personal familiarity with the people involved with narcotics in Springfield, and unlike in Cole, where a very large purchase was made, the purchase of four capsules by such a person is very plausible.

Generally, unless evidence of other crimes relates to one of the specific exceptions defined by Illinois case law, for example: motive, intent, knowledge, or identity, such evidence should not be admitted at a trial. (People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805.) If testimony of narcotics offenses on other occasions has no probative value except to show a propensity on the part of the defendant to commit that kind of crime, such testimony is inadmissible and prejudicial. (People v. Meid, 130 Ill. App.2d 482, 264 N.E.2d 209.) In any event, labelling the defendant a “pusher” is much more than merely testifying to an earlier transaction involving narcotics. That label implies that the defendant was a professional seller of narcotics, engaged in that unsavory occupation for a substantial period of time. Under the circumstances, it was prejudicial error sufficient to deny defendant a fair trial.

The defendant also raises the question of the propriety of the 14 to 17-year sentence which was later commuted by executive clemency to 5 to 10 years. A stipulation has been filed pursuant to an order of this court stating that the four capsules contained less than 30 grams of heroin. Therefore, if a new trial should result in conviction, the sentence would be controlled by the new Illinois Controlled Substances Act which has reduced the penalty for sale of heroin under 30 grams. Ill. Rev. Stat. 1971, ch. 56%, par. 1401(a) (b).

The judgment of the circuit court of Sangamon County is reversed and this cause remanded for a new trial. •

Reversed and remanded.

CRAVEN, P. J., concurs.

Mr. JUSTICE TRAPP,

dissenting:

I dissent from the reversal and remandment for new trial for the reason that the case went to the jury in the posture specifically insisted upon by counsel. In his motion to strike the question and answer, counsel expressly stated that he did not wish to have the jury admonished to disregard the answer. In so far as the verdict found is concerned, granting of the motion to strike the question and answer by the court would be meaningless in the absence of an admonition to the jury.

The answer, “At this particular time he was” (a “pusher”), at the most is equivocal. This is demonstrated by the fact that defendant’s counsel agreed that the State’s Attorney could use the term “pusher” in referring to the particular sale charged during the latter’s argument.

The cause should be remanded only for the purpose of sentence under the statute now in effect. People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.


author: Mr. PRESIDING JUSTICE CRAVEN Mr. JUSTICE TRAPP

text:
    Pythia E. Coleman, Exr. under the Will of Robert H. Coleman, Deceased, Plaintiff-Appellee, v. Illinois Central Railroad Company, Defendant-Appellant.
    (No. 11892;
    Fourth District —
    August 9, 1973.
    TRAPP, J., dissenting.
    Nichols, Jones, McCown & Lincoln, of Tuscola, (Robert Mitten, Thomas J. Healey and Harrison J. McCown, of counsel,) for appellant.
    Lemna & Lee, of Tuscola, for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This appeal arises out of a wrongful death action brought by Pythia E. Coleman, executrix of the estate of Robert H. Coleman, deceased, against Illinois Central Railroad Company. The trial court entered judgment for plaintiff upon a jury verdict in the amount of $136,000 from which the defendant appeals.

The plaintiff filed a motion to dismiss the appeal on the grounds the judgment order appealed from is not a final appealable order. Plaintiff contends that the defendant is appealing only from a denial of its post-trial motion for judgment notwithstanding the verdict and new trial instead of the judgment itself. The motion to dismiss was taken with this case and it is denied. While defendant’s notice of appeal is not of model form, it complies with Supreme Court Rule 303.

On appeal, the defendant submits that the trial court should have granted its motion for a new trial, or in the alternative granted a judgment notwithstanding the verdict; that opinion testimony of plaintiff’s expert witness was based upon assumptions rather than facts in evidence; and that the expert witness was permitted to testify to the ultimate issue. Defendant questions various other evidentiary rulings of the trial court.

The occurrence that gave rise to this case happened on January 16, 1970. It involved an automobile driven by Robert H. Coleman, deceased, and an Illinois Central train — the Panama Limited — at the intersection of Church Street and the Illinois Central Railroad tracks in Savoy, Illinois. The decedent had been traveling in a westerly direction on Church Street. The train was proceeding in a northerly direction. The Illinois Central Railroad tracks run in a north-south direction and roughly parallel with Route 45 as the tracks and the highway run through Savoy. The approaching road bed on the east side of the tracks is approximately six feet lower than the railroad tracks and the approach to the crossing is on a slight incline. There are three sets of tracks at the intersection: the east set is a spur track while the middle set is for northbound trains, and the west set is for southbound trains. The Panama Limited was on the middle set of tracks at the time of the occurrence. The intersection is marked with two cross bucks — one on either side of the tracks. There is one electrical wigwag signal on the southwest side of the tracks — the opposite side from which the decedent was coming. The approach to the intersection from the east was somewhat obscured by various buildings and trees which makes it difficult for a driver heading west on Church Street to view the oncoming railroad traffic, and for the railroad engineer to view oncoming Church Street vehicular traffic.

On the day of the occurrence, the weather was cold and damp; the train was one-and-one-half hours behind schedule and was traveling at a very high rate of speed (95 m.p.h.) at the time of the collision. Also, it was uncontroverted that the decedent was traveling at a very low rate of speed and that he did not stop before entering the crossing zone which he traveled every day. When the impact occurred, the rear wheels of the decedent’s vehicle were nearly on the west rail of the northbound main tracks.

At the trial, the plaintiff called a Mr. McMonagle to testify as an expert in the field of transportation engineering and planning. A hypothetical question was posed by the plaintiff and in response to it Mr. McMonagle stated it was his opinion that the railroad crossing in question was “very inadequately protected.” Defendant contends that the factual foundation for the hypothetical question was insufficient to base an opinion concerning the adequacy of the protective device found at the railroad crossing in question. Upon review of the relevant testimony concerning this issue, we find that no reversible error was committed by the trial court when admitting the expert opinion testimony.

Defendant also submits that the trial court erred in permitting Mc-Monagle to testify that the crossing was inadequately protected for this was an ultimate issue to be determined by the trier of facts. All parties agree that Merchants National Bank of Aurora v. E. J. & E. Ry. Co., 49 Ill.2d 118, 273 N.E.2d 809, is dispositive.

In Merchants National Bank, the supreme court held that it was proper for the trial court to admit an expert opinion when it dealt with an ultimate issue of the case. The court reasoned that even in a case when it is necessary for an expert to testify the “trier of fact are not required to accept the opinion of the expert * * Expert testimony dealing with ultimate issues does not usurp the function of the jury. Defendant contends that this case is distinguishable from the Merchants National Bank case in that the expert testimony found here does not fall within the rule announced in Merchants.

The expert first concluded in answer to the plaintiffs hypothetical question that the crossing was “very inadequately protected.” This is the same conclusion that the same expert made in the Merchants case. Then the expert went on to specify the reasons for his conclusions and surmised that more sophisticated protective devices should have been installed under the circumstances at the railroad in question. The defendant asserts that the import of the expert’s testimony was that the Illinois Central Railroad was negligent. One can draw this inference from the expert testimony, and perhaps the jury did, for they found the defendant-railroad was negligent. The expert testimony in this case, as in the Merchants case, was directed at the issue of “whether the crossing was adequately protected.” The expert in his testimony did not direct his attention to the ultimate issue of whether or not the defendant railroad was liable, for that is the duty of the jury. We find the expert did not invade the province of the jury.

The defendant submits that numerous other rulings made by the trial court concerning evidentiary matters were erroneous; also, that the trial court erred when it refused to grant a new trial or alternatively enter a judgment notwithstanding the verdict. We find no error in the court’s application of the Pedrick test to the evidence found in this case, therefore the verdict must stand. The record reveals that no reversible error of law was committed below, thus, a discussion of these issues would in our judgment serve no useful purpose and an opinion thereon would have no precedential value. Accordingly, pursuant to Rule 23 of the Supreme Court, the judgment of the circuit court of Douglas County is affirmed.

Judgment affirmed.

SIMKINS, J., concurs.

Mr. JUSTICE TRAPP

dissenting:

It has been consistently held that the plaintiff has the burden of proving the exercise of ordinary care, and without affirmative evidence of such the injured party may not recover. (Overman v. Illinois Central R.R. Co., 34 Ill.App.2d 30, 180 N.E.2d 213; Bachman v. Illinois Central R.R. Co., 132 Ill.App.2d 277, 268 N.E.2d 42.) In the absence of evidence of this element of the case, there is contributory negligence as a matter of law. (Tucker v. New York C. & St. L. R.R. Co., 12 Ill.2d 532, 147 N.E.2d 376.) In Siebens v. Konicek, 108 Ill.App.2d 300, 247 N.E.2d 453, plaintiff contended that there was no evidence that he had failed to exercise due care. It was said that there was no presumption that relieved him of such burden of proof.

The principal opinion notes the obstructions to view. It is stated that the duty to exercise care must be measured by the known hazards. (Tucker v. New York, C. & St. L. R.R. Co., 12 Ill.2d 532, 147 N.E.2d 376; Bachman v. Illinois Central R.R. Co., 132 Ill.App.2d 277, 268 N.E.2d 42.) Here, the decedent had used the crossing substantially ten times a week for five years. It would appear that no hazard present would be unknown to him. All witnesses in the vicinity at the time and place bear'd the blowing of the train whistle, except one man who could not recall that whistling for the reason that he worked beside the crossings and he heard train whistles all day. Such witnesses as were at the scene just before the collision testified that the wigwag signal was functioning in a normal way. The evidence is that it was activated from a point 3300 feet south of the crossings. Photographs in evidence plainly show that the wigwag signal was clearly visible on the highway approach to the crossing.

Photographic exhibits show a substantial view of the tracks on which the train approached from a point east of the east spin track which was east of the main track. This was not a high-speed thoroughfare and all of the evidence is that decedent drove slowly as he approached, but a witness observed that no stop lights showed as he went upon the crossing.

A disinterested witness standing near the crossing testified that the decedent looked straight ahead as he drove on to the tracks. The engineer and fireman also testified that decedent did not look up or toward the engine until the rear wheels of his car were on the westerly track of the main line. Such affirmative, undisputed evidence of failure to look was considered significant in Harsha v. Peoria & Eastern R.R. Co., 131 Ill.App.2d 820, 269 N.E.2d 733. In Pedrick, 37 Ill.2d 494, 229 N.E.2d 504, plaintiffs evidence of the exercise of ordinary care was deemed “equivocal.” It was then determined that the trial court should have directed a verdict or entered judgment n.o.v. Here, there is no evidence the decedent had looked, and there is actual affirmative evidence that he did not exercise ordinary care. Upon such Pedrick should control.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Lee Kennel, Defendant-Appellant.
    (No. 71-173;
    Fifth District —
    August 8, 1973.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On May 4, 1971, defendant, Willie Lee Kennel, pleaded guilty in the Circuit Court of St. Clair County to two separate offenses of unlawful possession of heroin. Pursuant to his negotiated plea he was sentenced to the penitentiary for a term of not less than five nor more than ten years on each offense, the sentences to run concurrently with each other and with a previous sentence for burglary. His appeal is directed solely to a request for a reduction in his sentence commensurate with the provisions of the Illinois Uniform Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1005 — 8—1(b)(4)), which became effective December 31, 1972.

Defendant was convicted of a violation of the Narcotic Drug Act. (Ill. Rev. Stat., ch. 38, sec. 22 — 40.) This Act was repealed and replaced by the Controlled Substances Act, effective August 16, 1971 (Ill. Rev. Stat., ch. 56½, sec. 1100, et seq.) Section 1402(b) of this latter Act provides that an individual convicted of possessing less than 30 grams of heroin is guilty of a Class 3 felony. The Uniform Code of Corrections, which was subsequently adopted, provides that the punishment for a Class 3 felony shall be an indeterminate sentence with a maximum term in excess of one year and not exceeding ten years (Sec. 1005 — 8—1(b) (4), and a minimum term of one year, unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term which shall not be greater than one-third of the maximum. (Sec. 1005 — 8—1(c)(4)).

We agree with defendant’s contention. In People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1 it was held that prior to final adjudication, and while a case is pending on direct appeal, the penalties in the Controlled Substances Act are applicable and that the same is true with the Uniform Code of Corrections Act. We likewise have held that the Uniform Code is applicable to currently pending appeals from sentences imposed under a prior statute. People v. Williams, 294 N.E.2d 98; People v. Shadowens, 294 N.E.2d 107.

In the case before us it is apparent that the sentence imposed does not comply with the Uniform Code in that the minimum sentence exceeds one-third of the maximum. The record is also devoid of any information relative to any special circumstances that should be considered in setting the minimum term. Therefore, we affirm the judgment of the Circuit Court of St. Clair County convicting defendant, but we vacate the sentence imposed and remand the cause to said court for reconsideration and the imposition of a sentence in compliance with the provisions of the Uniform Code of Corrections.

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

G. MORAN, P. J., and JONES, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    Orville Sharkey, Plaintiff-Appellant, v. David L. Snow et al., Defendants-Appellees.
    (No. 72-286;
    Third District —
    July 27, 1973.
    Donald Zeglis, of Mommence, for appellant.
    Armen R. Blanke, of Kankakee, for appellees.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Kankakee County dismissing the complaint of plaintiff for a real estate brokerage fee. The order stated that the complaint failed to allege the production by plaintiff of a buyer for the real estate in question under terms fixed in the listing contract. The premises were not in fact sold.

The complaint under consideration stated in its relevant parts as follows:

“1. That at all times hereinafter mentioned Orville Sharkey was a duly licensed real estate broker in the State of Illinois, maintaining office under the name of Sharkey Real Estate, 5 Edge-view Road, Momence, Illinois.
2. That the defendants, David L. Snow and Sharon L. Snow, were at all times mentioned the owners of twenty-two acres of land in Yellowhead Township, Kankakee County, Illinois, improved with two dwellings.
3. That on February 20th, 1971, the defendants did list their property known as the David Snow Property with the said plaintiff for sale under an exclusive listing contract, a copy of which is attached hereto marked Exhibit “A” and made a part hereof, for the sum of $59,500.00 cash, said exclusive sales contract to run through June 20, 1971, and did subsequently orally agree that an old farm tractor, of little value, would be sold as part of the premises.
4. That thereupon the plaintiff, Orville Sharkey, doing business as Sharkey Real Estate did advertise said property for sale in various newspapers both in Kankakee County and Cook County and did arrange for Continental Real Estate Inc. of Cook County to assist him in the sale of said premises under his direction and control and did show said premises to many prospective customers.
5. That thereupon on June 6, 1971, the said plaintiff through the assistance of Continental Real Estate Inc., did secure an offer to purchase said premises from David W. Deruntz and Mildred K. Deruntz, for the sum of $59,500.00 and did attempt to tender from June 6, 1971 said contract to the said defendants but that said defendants had left the State of Illinois and did not return until June 19, 1971, whereupon the said plaintiff informed the defendants that he had the premises sold at the listed price to the aforesaid persons, a copy being attached as Exhibit ‘B’.
6. That the prospective purchasers secured a Commitment for a mortgage loan pursuant to said contract, a copy of which is attached and marked Exhibit ‘C’ and made a part heretof, on June 11th, 1971, prior to the expiration of the exclusive listing contract and that accordingly the said defendants could then and there have sold the premises for $59,500.00 cash as per the listing contract with the plaintiff.
7. That never-the-less [sic] the defendants refused to consummate said contract and advised plaintiff that they were removing the premises from the market and that accordingly the plaintiff is entitled to a six per cent selling commission to-wit: Three Thousand Five Hundred and Seventy Dollars ($3570.00)."

Exhibit “A" to the complaint, a copy of the listing agreement, bears the signatures of defendants as owners and plaintiff as realtor. It grants plaintiff the exclusive right to sell property described as the “David Snow Property” for the cash sum of $59,500 within 4 months of the February 20, 1971 instrument or until June 20, 1971. Upon such sale, defendants are required to furnish “* 9 9 complete abstract showing good and merchantable title to the premises” or, in the alternative, “to furnish a Title Guaranty Policy”. A commission of 6% of the sales price is set forth as plaintiff’s compensation for bringing about the contemplated sale.

Exhibit “B” to the complaint, which is a copy of the proposed “contract for sale of real estate” obtained by plaintiff purportedly pursuant to the listing agreement, identifies the prospective purchasers as David W. Deruntz and his wife Mildred K. Deruntz, is executed and bears the date of June 6, 1971. The purchasers agree to purchase for $59,500 on the terms as set forth in the contract, property commonly known as “Yellowhead Township, Grant Park, Illinois”. The contract further provides that the sale is to include numerous specified items of “9 9 9 fixtures and personal property, if any, now on the premises, for which a bill of sale is to be given 9 9 The contract recites that * 9 Purchaser has paid $5,000 Note (The note shall be redeemable after the sellers sign and after 6/22/71) to be applied on the purchase price 9 9 9”, and further states that the purchaser will pay the balance of the purchaser price, plus or minus prorations, at the time of the closing of the transaction. The contract is made expressly contingent upon the purchasers’ ability to procure certain mortgage financing, and the time for closing is fixed as July 15, 1971, or- 20 days following notice to the owners that the contemplated financing has-been obtained. Defendants are required to give possession of the premises to the purchasers within 11 days after the closing and before July 26, 1971, and if such possession requirements are not met, the sum of $10 per day shall be paid by defendants until delivery is made.

Certain conditions appear on the back side of the contract document, some of which are as follows: Condition “a.” recites that the seller is to deliver to purchaser or purchaser’s agent, not less than 5 days prior to closing, a title commitment for an owner’s title policy issued by Pioneer National Title Insurance Company or any other title insurance company licensed to do business in the State of Illinois in the amount of the purchase price. Condition “d.” provides that if prior to closing the improvements are destroyed or materially damaged by fire or other casualty, the contract at the option of the purchaser becomes null and void and the earnest money is to be returned. Condition “e.” provides that if the contract is terminated by the purchaser’s fault, then at the option of the seller and upon notice to the purchaser, the earnest money is to be forfeited, but to be applied first to seller’s expenses, and then to the payment of broker’s commission, with the balance, if any, to be retained by the seller. Condition “j.” provides that the seller must furnish at the closing a current paid for plat or survey “* * * with the improved buildings spotted therein”.

Exhibit “C” to the complaint is a copy of a mortgage loan commitment dated June 11, 1971, manifesting an agreement by the “First National Bank in Harvey” to provide a mortgage loan largely as specified in the proposed contract for sale.

It is clear under the law that the three exhibits attached to the complaint became a part thereof for all purposes (Ill. Rev. Stat. 1969, ch. 110 §36), and the factual matters contained in the exhibits which are inconsistent with averments of the complaint serve to negate such averments. (Hardy v. Montgomery Ward & Co., 131 Ill.App.2d 1038; Preferred Risk Mut. Ins. Co. v. Hites, 125 Ill.App.2d 144). A motion to dismiss, moreover, is not deemed to have admitted any averments of the complaint which are in conflict with the controlling facts set forth in the exhibits attached to the complaint. Hardy v. Montgomery Ward & Co., 131 Ill.App.2d 1038.

In order to state a cause of action against defendants, it is clear that plaintiff is required to aUege in his complaint that he produced a buyer for the subject premises, who was ready, willing and able to purchase the same on terms specified in the listing agreement, and no others. (Sattler v. Oliver, 138 Ill.App. 210, Aff’d. 233 Ill. 536; See also: I.LP. Brokers § 78 and cases therein cited). When one examines the complaint in this cause, together with the exhibits attached thereto, it is obvious that plaintiff has failed to comply with this basic requirement. The terms of the listing agreement called for plaintiff to procure a buyer for the real estate in question who would pay a cash sale price of $59,500, upon which defendants would provide either an abstract of title or title insurance policy manifesting good and merchantable title to the property in themselves. The proposed contract produced by plaintiff did not call for a cash payment at the full purchase price, but rather manifested a conditional tender of earnest money in the amount of $5,000, apparently evidenced by a promissory note, which note was not payable until June 22, 1971, two days after the expiration of the listing agreement. Additionally, the proposed contract called for an inclusion in the sale of numerous items of personal property, many of which could not conceivably be regarded as part of the real estate, with such inclusion to be evidenced by a “hill of sale” to be executed by defendants. Further, the sales contract required defendant to purchase title insurance, thereby negating defendants’ reserved option in the listing agreement to provide the purchasers with an abstract of title. In addition to these items, the sales contract purported to impose upon defendants an obligation to furnish a current plat of survey for the property, a matter clearly not contemplated by the listing agreement. (See: Doppelt v. Geliebter, 173 Ill.App. 634, 638.) There are additional variances between the proposed contract and the listing agreement but for our purposes it is sufficient to state that plaintiff’s complaint fails in significant and substantial respects to allege that he produced a buyer for the subject premises on the terms specified by his principal, the defendants.

Plaintiff argues, however, that notwithstanding the variances between the listing agreement and the proposed contract for sale, the lower court erred in dismissing the complaint before it could be determined whether defendants had waived the right to object to such variances. In support of this proposition, plaintiff refers to the case of Crouse v. Rhodes, 50 Ill.App. 120 and Smith v. Keeler, 51 Ill.App. 267, where the courts indeed recognize that a vendor of real estate may waive his right to object to matters of detail in a proposed contract for sale apparently not dealt with or dealt with differently in the agency agreement between the broker and the vendor. Whatever might be the present viability of the rationale employed in those cases or its substantive applicability under the facts of this case, however, it is of no value to plaintiff in the posture of the case as presented in this court, for it is clear that a waiver must be specially pleaded by the party asserting the same. (First National Bank v. Wine, 255 Ill.App. 578, 585.) Since plaintiff failed to plead any matters relating to the now interjected assertions of waiver, plaintiff cannot be heard to raise them on appeal.

For the reasons stated, we find that there was no error in the judgment of the Circuit Court of Kankakee County and the order of dismissal entered in such court is affirmed.

Judgment affirmed.

DIXON and SCOTT, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Miles, Defendant-Appellant.
    (No. 56807;
    First District (5th Division) —
    July 13, 1973.
    James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant
   PER CURIAM.

DRUCKER, J., took no part.

Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Thomas Passarelli, and James Staruck, Assistant State’s Attorneys, of counsel,) for the People.