text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Murray, Defendant-Appellant.
    (No. 12163;
    Fourth District —
    September 10, 1973.

      Rehearing denied October 16,1973.

    John.F, McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Appellate Defender, of counsel,) for appellant.
    Richard J. Doyle, State’s Attorney, of Danville, (John R. McClory, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On March 5, 1969, defendant-appellant George Murray entered a plea of guilty to an indictment which charged him with the offense of aggravated battery. On January 26, 1970, defendant was placed on three years probation. Subsequently, on September 27, 1972, the probation. officer filed a report indicating that defendant had violated the terms of his probation, and a bench warrant issued on the same date. On November 28, 1972, defendant’s probation was revoked and he was sentenced to a term of one year at the Illinois State Penal Farm at Vandalia.

Defendant here seeks sentence credit for the time which he had served on probation prior to imposition of the sentence imposed and cites section 5 — 6—4(h) of the Uniform Code of Corrections (Ill. Rev. Stat-., 1972 Supp., ch. 38, par. 1005 — 6-^-4(h)), which provides:

“Resentencing after revocation of probation or of conditional discharge shall be under Article 4. Time served on probation or conditional discharge shall be credited against a sentence of imprisonment or periodic imprisonment.” (Emphasis added.)

It is clear that defendant had spent or served in excess of two years on probation at the time of the imposition of the one-year sentence. Section 8 — 2—4 of the Code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008 — 2—4) provides in pertinent part that “* * * if the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” A judgment pending on appeal has not reached final adjudication. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750.) Thus the sentence imposed is controlled by the provisions of the Uniform Code of Corrections, section 5 — 6—4(h) quoted above. Since the time spent on probation exceeds the sentence imposed (and indeed the maximum sentence available to be imposed) the defendant is entitled to be discharged from that sentence.

Accordingly, the defendant is ordered discharged.

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


source: Caselaw Access Project

author: Mr. JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    Margaret A. Gillespie, Plaintiff-Appellant, v. The Riley Management Corporation et al., Defendants-Appellees.
    (No. 72-76;
    Second District —
    September 17, 1973.

      Jacobs & Spencer, of Villa Park, (Charles W. Spencer, of counsel,) for appellant.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Can a cashier’s check, purchased by a corporation’s agent and made payable to that corporation and a third party be returned to the issuing bank for credit without endorsement?

The stipulated facts of this case disclose that Riley Management Corporation (Corporation), through its agent entered into an agreement whereby she was to sell an apartment building to the plaintiff. The contract provided that it would pay $1000 earnest money followed by an additional $24,000 payment, the total $25,000 to be held by the Corporation in escrow. After receiving tire $25,000 but before establishing the escrow William C. Riley, president of the Corporation, informed plaintiff that to avoid the extra expense of escrow he had instead purchased a cashier’s check made payable to the Corporation and plaintiff; he assured plaintiff that both their signatures would be necessary to negotiate the check. The record discloses no objection posed by plaintiff to this arrangement.

The defendant, National City. Bank in Chicago, had an account for the Corporation but was unaware of the Corporation’s business transactions with other parties to this suit. Riley deposited the initial $1000 check into the Corporation account and a short time later he similarly deposited plaintiff’s $24,000 check drawn on an out of town bank. At the time of this last deposit, he requested a cashier’s check in the sum of $25,000 but was informed that, because the Corporation’s balance was less than $13,000, he would have to await clearance of plaintiff’s check. Later, upon notification of clearance, the defendant did issue a $25,000 cashier’s check made payable to the Corporation and plaintiff.

About one month later, Riley returned' with the check, notified defendant that it had not been used for the purposes intended and requested, in its stead, two cashier checks (one for $15,000, the other for $10,000) made payable to the Corporation. He surrendered the original cashier’s check without endorsements but, at the request of defendant, wrote on the reverse side “not used for purpose issued.” The defendant then issued the two cashier’s checks requested.

Approximately two months later, plaintiff became aware of Riley’s actions and made a demand on defendant for the return of her $25,000. Defendant’s refusal precipitated this suit for conversion by plaintiff. The trial court dismissed the complaint and plaintiff appeals.

Plaintiffs position is that the cashiers check issued when defendant placed its signature on the instrument and handed it to Riley, that, at this point in time, a debtor-creditor relationship was created between the defendant and the named payees (plaintiff and Riley Management Corporation), that Riley’s status as purchaser ceased and he became one of two payees, that delivery to one of two or more payees is delivery to all, and that under section 3 — 116 of the Uniform Commercial Code (UCC), it was necessary that both payees negotiate the check to legally discharge the defendant from liability.

Defendants pose that the cashier’s check was neither delivered nor negotiated but that the legend affixed and the check’s surrender renounced and cancelled the transaction as provided under section 3— 605.

We deem it helpful to set forth certain terminology as defined by the Uniform Commercial Code (Ill. Rev. Stat. 1963, ch. 26, sec. 1 — 101 et seq.): Instrument “means a negotiable instrument” (sec. 3 — 102(1) (e)); Issue “means the first delivery of an instrument to a holder or a remitter” (sec. 3 — 102(1)(a)); Delivery "means voluntary transfer of possession” (sec. 1 — 204(14)); and Holder “means a person who is in possession of * * * an instrument * * * to him * * (sec. 1 — 201(20)).

A cashier’s check is defined as a bill of exchange drawn by a bank upon itself and accepted in advance by the act of issuance. When a purchaser has paid the consideration and the bank has transferred the cashier’s check to the purchaser, for delivery to the payee, the contract between the bank and purchaser has become executed, a debtor-creditor relationship takes place and, by definition, the check issues. The terms “issue” and “delivery” as defined are not synonymous. However, this same contract, sub silentio, contemplates a delivery of the cashier’s check by the purchaser to the named payee. Until delivery, the purchaser retains ownership of the check and is entitled to return it for cancellation. (Buehler v. Galt, 35 Ill.App. 225, 227 (1889). See also Umbsen v. Crocker First Nat. Bank of San Francisco, 33 Cal.2d 599, 203 P.2d 752, 754 (1949); Burke v. Mission Bay Yacht Sales, 214 Cal.App.2d 723, 29 Cal.Rptr. 685, 688 (1963), and Bunge Corp. v. Manufacturers Hanover Trust Co., 31 N.Y.2d 223, 229 (1972). For a more strict interpretation see, National Newark & Essex Bank v. Giordano, 111 N.J. Super. 347, 268 A.2d 327 (1970).) Once there is delivery, actual or constructive, of a cashier’s check to a payee, the rule, with limited exceptions, is that it is not subject to countermand by either its purchaser or the issuing bank. Foreman v. Martin, 6 Ill.App.3d 599, 602 (1972); Acme Excavating Co. v. State Bank of Breese, 69 Ill.App.2d 280 (1966), and Madison & Kedzie State Bank ex rel. Globe Indemnity Co. v. Madison Square State Bank, 271 Ill.App. 12, 18 (1933).

Complications arise at attempting to apply the pronounced rules to the instant case, for in various stages of events Riley acted in two differing capacities: he was agent-purchaser for the Corporation and agent-payee of the Corporation. He could not simultaneously act in both capacities. At the time defendant issued the original cashiers check Riley ceased to function as agent-purchaser and assumed the role of agent-payee. Facts supporting this conclusion are that defendant was instrumental in all of the following transactions and recognized Riley as an agent for the Corporation when he deposited plaintiffs checks made payable to the Corporation in the Corporations account, withdrew the monies for the check in question from such account, returned this check, unsigned, for credit to the account and immediately withdrew sufficient funds to acquire the subsequent cashier checks for $15,000 and $10,000, respectively, made payable to the Corporation from its account. Such recognition having been established, defendant’s handing of the cashier’s check to Riley initiated his role as agent-payee. The transfer thus became a delivery to one of two payees. Delivery to one of two payees is tantamount to delivery to both. Ryhiner v. Feickert, 92 Ill. 305, 312 (1879); United States Fidelity & Guaranty Co. v. Peoples National Bank, 24 Ill.App.2d 275, 281 (1960); Hoffman v. First National Bank, 299 Ill.App. 290, 294 (1939).

An instrument payable to the order of two or more payees not in the alternative is payable to all payees and may be negotiated, discharged or enforced only by all of them. (UCC, sec. 3 — 116.) Having found the cashier’s check issued and delivered, the defendant could neither countermand nor discharge its liability without the endorsement of both payees.

One other point needs disposition. Defendant relies on a section of the Code which recites that a holder of an instrument may discharge any party by renouncing his rights in writing or by surrendering tire instrument to the party to be discharged. (UCC, sec. 3 — 605(l)(b).) Defendant argues that Riley was a holder by definition under this section; that as such he renounced his rights in writing by supplying the notation “not used for purpose issued” on the reverse side of the check; further, that he surrendered the check without any endorsements; and, therefore, the defendant was discharged. Here, however, Riley was not merely a holder but agent for one of two payees. Comment to the UCC section establishes that where an instrument is made payable to two payees, not in the alternative, “* * * both must join in any action * * * and the rights of one are not discharged without his consent by the act of the other.” UCC Comment, S.H.A., eh. 26, sec. 3 — 116, p. 73 (1963).

It was error for the trial court to dismiss the complaint. The order is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

GUILD, P. J., and SWANSON, J., concur.

       We assume defendant would not have allowed Riley to withdraw corporate funds in his individual capacity.


author: Mr. JUSTICE SEIDENFELD

text:
    Sheldon Livestock Company, Inc., Plaintiff-Appellee, v. Western Engine Company, Defendant-Appellant.
    (No. 72-107;
    Second District —
    September 17, 1973.

      Gates W. Clancy, of Geneva, for appellant.
    Donovan, Dichtl, Atten, Mountcastle & Roberts, of Wheaton, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Sheldon Livestock Company, Inc., filed a three count complaint against Western Engine Company as agent, and Detroit Diesel Company as principal, seeking damages for repairs and loss of time and use of its truck-tractor as the result of an overhaul of the truck by Western Engine Company. Count I alleged negligent repair; Count II alleged breach of contract to perform in a workmanlike manner; and Count III alleged breach of express warranty. Detroit Diesel’s motion for summary judgment was granted on the basis that Western Engine. Company was not its agent. The case proceeded to trial, was submitted to the jury on only the first two counts, and resulted in a verdict for plaintiff in the amount of $5,350. Defendant appeals from the judgment entered on the verdict.

Defendant contends: (1) That the court erred in instructing the jury on both contract and negligent theories, claiming that this prejudicially allowed two avenues of recovery for breach of the same alleged duty of ordinary care; (2) that the testimony of plaintiff’s expert witness on causation lacked proper foundation, and further, applied standards of care which were neither universal nor applicable for defendant’s locality; (3) that plaintiff failed to prove freedom from contributory negligence by failure to produce evidence of proper use, maintenance or repair for the 90,000 miles the engine ran after defendant’s overhaul; and (4) that undocumented evidence of loss' of profits was improperly admitted.

The evidence shows that in December, 1969, defendant performed an overhaul on the Detroit Diesel engine of plaintiff’s truck at a cost of $3,479.29. It is. agreed by both parties that no main bearing stabilizers were installed during this repair. Approximately 10 months and-90,000 miles later, the truck broke down.. Carroll Bole, the major stockholder and principal operating officer of plaintiff company, testified that the truck broke down on the highway, and was towed some 25 miles to the International Harvester dealer in Indianapolis, Indiana. Bole went there and saw the engine completely out. of the frame, disassembled, and lying on the floor. He saw that the crankshaft was broken. The International Harvester dealer replaced broken flywheel bolts, but Bole did not know if they installed a new flywheel. He said the flywheel was not broken but the holes where the bolts went were worn to the point that they thought a new flywheel should be installed. (In plaintiffs briefs it is conceded that a new flywheel was installed,) The clutch was also overhauled. The truck was then towed to Nixon Detroit Diesel in Nashville, Tennessee, where the crankshaft was repaired at a cost of $5,265.52. Bole also testifled that during the time between defendant’s work and the later breakdown the truck was used for hauling livestock, as it had been before the repairs.

■ Among. the exhibits admitted in evidence were photographs of the engine as it lay disassembled at the International Harvester shop together with a bill. The bill contained the legend “Removed broken flywheel bolts & studs. ” *. * Used new flywheel bolts and dial pins (flywheel furnished by customer).”

Lee Lovelady, the general service manager for Nixon Detroit Diesel, also testified for the plaintiff. He stated, over defendant’s objection that there was no proof the engine was in the same condition as on the date of its .breakdown, that he examined the engine at his shop and found that the main bearing bolt to the crankshaft was broken.. He said there were no stabilizers and that in 1968, pursuant to Detroit Diesel Company publications dated December 1986 and January 1967, which stated that stabilizers “are being used” to increase the rigidity of the two main bearing caps, he did not do an overhaul without installing main bearing cap stabilizers. He stated that the purpose of main bearing cap stabilizers is to stabilize the two rear main bearings from vibrating and receiving undue stress. Over objection he stated his opinion that the broken bolt could and would be caused by defendant’s failure to install the stabilizers during the overhaul. He said that without them the vibrations of the engine caused the main bearing cap to loosen, causing the bolts to break, and it is then a matter of time until the crankshaft breaks. He said that he did not remember the condition of the flywheel. Asked on direct examination whether the condition of the flywheel was important in regard to the cause of the crankshaft breaking, Lovelady testified:

“A. The condition of a loose flywheel being run along a period of time, it sets up a vibration which in turn would break the main bearing bolt and in turn would break the crank.
Q. Well, does the loosening of the flywheel, is there any causal relationship between the failure to have a main bearing cap stabilizer and the loosening of the flywheel?
A. It definitely would have a lot better chance if the stabilizer was on it.
Q. Why do you say that?
A. Well, here again you are stabilizing the top of your main bearings to the point where they are held more rigid on both sides. There was no working problem from one side to the other.”

On cross-examination, Lovelady said that the bad clutch or loose flywheel could cause vibrations in the crankshaft, and that these were general maintenance items. The cross-examination continued:

“Q. The place where the crankshaft broke is over here at the left of the picture, isn’t it? Three places removed, isn’t that right?
A. There is loss of support here. The main bearing loosens up and the crank starts turning inside the block and there is no support aU the way up. That’s what caused it to break.
Q. Have you ever had occasion in your years of experience with these to have a crankshaft break and then cause the bolt to break?
A. No.
Q. If the crankshaft breaks first, the main bearing cap is going to go? Something is going to go?
A. As a usual thing it does. I don’t know of any occasion.
Q. Have you ever had occasion to have in your shop, sir, these units with stabilizers on them where the bolt is broken?
A. Yes.
ft ft ft
Q. If I understand you correctly, sir, then, you are not giving an opinion as to the order in which the crankshaft or the bolt broke, or you are?
A. I am.
Q. What is your opinion?
A. The bolt broke, loss of support and the bearing burned and the crank broke.
Q. On what do you base that opinion?
A. From my own experience as technical engineer for Detroit Diesel. As I told you before, I have 34 dealers. I travel with the technical engineers from each dealer and we inspect parts of these
kind. And this is what I base my opinion on.
# # #
Q. Sir, why do you say that the bolt broke first and the crankshaft broke later, did you make an examination of them by any metal tests which broke first or second?
A. No metal tests.
# # e
Q. And in making your opinion, were you aware of the fact that the flywheel had in fact been replaced on this engine in Indianapolis before it was brought to you?
A. No.
Q. And the fact that the flywheel was broken and bolts in connection therewith were broken, would that affect your opinion?
A. I don’t believe it would in this case, no, sir.
Q. And of course the vibrating of the flywheel could cause the bolts to break?
A. No, sir.
Q. With or without the stabilizers, couldn’t it?
A. That is very possible.”

On redirect-examination Bole testified that the normal life expectancy of an engine after a complete out of frame overhaul would be between 400,000 and 500,000 miles.

William Bassett, the service foreman at Western Engine Company, testified for the defense that although he was aware of the Detroit Diesel Company pamphlets, stabilizers were not installed in plaintiff’s truck because the planned use of the truck for hauling livestock did not require them. He said that some pamphlets of Detroit Diesel Company required certain parts, but that the pamphlets in question did not "require” the use of stabilizers. He said the breakage of the crankshaft bolts could be the result of vibration caused by the clutch or flywheel.

Defendant primarily contends that Lovelady should not have been permitted to testify to the cause of the breakdown because plaintiff failed to establish that the condition of the truck remained unchanged between the breakdown and Lovelady’s examination. (Rotche v. Buick Co. (1934), 358 Ill. 507, 516-518; Woodrick v. Smith Gas Service, Inc. (1967), 87 Ill. App.2d 88, 92.) Plaintiff counters that the pictures admitted in evidence show that the bearing bolt and crankshaft were broken when observed in Indianapolis, and that it is admitted by defendant that no stabilizers were installed. Thus, plaintiff contends that it is established that no change occurred.

Plaintiff is correct in so far as Lovelady’s testimony relates to defendant’s negligence in not installing stabilizers during the overhaul. It is admitted that there was no change as to the presence or absence of stabilizers from the time of the accident until the expert witness saw the parts. If the presence or absence of stabilizers could give a sufficient factual foundation upon which to base an expert’s testimony as to the cause of the broken crankshaft, we would have little difficulty in accepting this proof even though the witness retreated from his initial position of absolute certainty. However, on the total record of Lovelady’s testimony, it would appear that no proper foundation was laid from which he could give an opinion in terms of the probable and not merely of the possible that die absence of stabilizers caused the breakdown. The question to which he responded was not a hypothetical, but was' based on his personal inspection of the damage. Yet Lovelady did not know that when the truck was in Indianapolis, the engine was disassembled, and the clutch, flywheel and flywheel bolts were replaced. He did not know that the flywheel bolts were broken. These gaps in his knowledge are important since he stated on both the direct and cross-examination that a loose, vibrating flywheel could break the main bearing bolt and in turn cause the crankshaft to break. He also said that a bad clutch could cause vibrations in the crankshaft.

It is thus evident that the condition of the engine had changed before Lovelady’s inspection, and that the change was such as could effect a determination of the cause of the accident. The cases cited by plaintiff are distinguishable on their facts. (Gass v. Carducci (1962), 37 Ill.App.2d 181; Noncek v. Ram Tool Corp. (1970), 129 Ill.App.2d 320.) The admission of Lovelady’s testimony as to the cause of the breakdown was reversible error.

To assist the court on retrial, we will briefly refer to certain other questions which defendant has raised.

Defendant’s contention that the jury should not have been instructed on both contract and negligence theories is based on what we consider to be an improper premise that because there is a common duty to use ordinary care, the theories of recovery are identical. We agree with the argument of the plaintiff that the failure to perform a contract in a good and workmanlike manner is the same as negligent performance. “Workmanlike” means a proper, safe and non-negligent manner of doing something. It describes an ordinary standard of care, the breach of which standard is equivalent to negligence. (Italia Societa Per Azioni di Nav. v. Oregon Stevedoring Co. (9th Cir. 1962), 310 F.2d 481, 484.) However, while the duty under either theory is the same, the non-performance of a duty is only one of the requirements for the application of either theory of recovery. Under the contract theory, there could be no recovery unless it were first established that a contract existed, while, of course, this finding would not be necessary for recovery under negligence principles. In addition, recovery under the negligence theory required freedom from contributory negligence, proof which would be unnecessary in the contract action. Since both theories were pleaded by plaintiff and there was evidence in the record supporting each theory, the judge properly instructed the jury under each theory.

Defendant has also argued that Lovelady’s testimony as to methods used in his shop "in Nashville, Tennessee,- is irrelevant and incompetent with regard to the standards to be followed in defendant’s shop in Addison, Illinois. In support of this argument defendant cites Bacon v. Walsh (1913), 184 Ill.App. 377, a medical malpractice case holding that physicians are held to that degree of knowledge and skill which the average physician under the circumstances in that locality would bring to a case. The medical locality rule was based on the rationale that a doctor in a small community, not having the same opportunity and resources for keeping abreast of the advances in his profession, should not be held to the same standard of care and skill as that employed by physicians in large cities. See 37 A.L.R.3d 423-424.

. The medical locality rule has not been applied in other cases of negligence. Even if applicable it would not render Lovelady’s testimony inadmissible. The shops of both defendant and Lovelady were authorized repair outlets for Detroit Diesel engines, the type involved here. Both shops regularly received publications from Detroit Diesel Company, and both had received the pamphlets pertaining to the use of stabilizers. There is nothing in the proof to indicate that a Detroit Diesel engine works differently in Addison than in Nashville. Lovelady testified that he worked only on this type of engine and his shop repaired or overhauled between 1000 and 1200 such engines a year. He \yas well qualified to testify as to such engines. See Holcomb v. Magee (1920), 217 Ill.App. 272, 282.

Defendant has also contended that the plaintiff should not have been allowed to testify as to lost profits without producing his corporate books for in-court examination. On re-trial the plaintiff, of course, must comply with the best evidence rule. See People ex rel. Wenzel v. Chicago & N.W. R.R. Co. (1963), 28 Ill.2d 205, 213.

We do not discuss other questions raised by the parties which are not likely to occur on a re-trial.

The cause is reversed and remanded for a new trial.

Reversed and remanded.

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


text:
    John Kravenas, Plaintiff-Appellee, v. Algonquin Township et al., Defendants-Appellants.
    (No. 72-108;
    Second District —
    September 17, 1973.
    Joslyn & Green, of Woodstock, for appellants.
    Franz & Franz, of Crystal Lake, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This is an appeal from a judgment entered upon a $30,000 verdict in favor of the plaintiff. During oral argument defendants candidly stated that there is no issue as to their negligence but claimed that the trial court erred in refusing certain instructions, admitting into evidence a certain photograph and allowing the amount of the verdict to stand.

The plaintiff, age 20, was injured while a passenger in a car that collided with a snow plow operated by defendant Lee and owned by defendant township. The injury occurred when his head struck the windshield of the auto resulting in severe lacerations to his forehead. During trial, the owner driver testified that his car was equipped with seat belts but that plaintiff was not wearing them. It was plaintiff’s testimony that he did not know if the auto contained seat belts but admitted he was not wearing any.

At trial it was defendant’s position that the non-use of seat belts is a fact to be considered by the jury in determining if the plaintiff was guilty of contributory negligence. They therefore tendered three instructions from I.P.I., Civil-10.02 (definition of ordinary care); 10.03 (duty to use ordinary care); 11.01 (definition of contributory negligence) and one original instruction which informed the jury that non-use of seat belts could be considered to determine if plaintiff exercised due care not only to avoid injury but to mitigate damages. The trial court’s refusal to allow these instructions was not error. Failure to use seat belts, as a matter of law, does not constitute contributory negligence. See Blitz v. Checker Taxi Co., 8 Ill.App.3d 361 (1972), and cases cited therein.

Defendants also tendered an instruction which informed the jury that the non-use of seat belts could be considered by them in determining the effect this would have on the nature and extent of the plaintiff’s injuries. This instruction was refused and, in its stead, the court gave its own instruction which was similar to defendant’s except that it required the jury to first find that the plaintiff knew or should have known that seat belts were present. There is no evidence in the record to support either mitigation or aggravation of injuries from the use or non-use of seat belts; therefore, no seat belt instruction should have been given. (Heiser v. Chastain, 6 Ill.App.3d 552, 556 (1972).) As a consequence, the defendants were benefitted rather than prejudiced by the court’s instruction.

Error is claimed in the admission of a color photograph of plaintiff’s face, with his forehead the focal point, taken ten months after the accident but nine months before trial. When admitted, the trial judge told the. jury:

“* o * [I] t is admitted for the limited purpose of showing the time involved in the healing and pain and suffering, and not as proof of the scar today, which is taken from your examination of the plaintiff.”

Defendant first argues that the photograph was irrelevant and without probative value. The trial court’s remarks upon admission dispel any merit to this contention.- If is further argued that the photograph gave the jury a distorted, unrealistic and. exaggerated portrayal of plaintiff’ s injuries, inciting passion. and prejudice on the part of the jury especially when observed in comparison with plaintiffs high school photograph. We have viewed the exhibit with these points in mind but find them unpersuasive. The admission of a photograph is within the discretion of a trial court. (Darling II v. Charleston Community Memorial Hospital, 50 Ill.App.2d 253, 320-322 (1964), aff'd 33 Ill.2d 326, 339 (1965), cert. denied, 383 U.S. 946, 16 L.Ed.2d 209, 86 S.Ct. 1204 (1966).) We find no abuse of discretion by the trial court in admission of the photograph.

FinaHy, defendants claim the verdict to be excessive and without support in the evidence. Plaintiff suffered a concussion and deep lacerations of the forehead, requiring. 69 sutures. He has missed 1, week of work, suffered periodic headaches from the time of the accident to the present, his forehead is permanently scarred and he has become self-conscious with a change -in personality as a result of the scarring. While his special damages amount to only $860.90 this, in and of itself, is not determinative of the issue. (See Orlandi v. Caraway, 9 Ill.App.3d 628, 632 (1973).) We do not find the jury’s award to be excessive and decline to enter a remittitur.

Judgment affirmed.

GUILD, P. J., and SEIDENFELD, J., concur.

       Although not raised, this instruction was properly refused because of plaintiff’s age. See Note on Use.

        Ibid.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Brooks et al., Defendants-Appellants.
    (No. 72-309;
    Second District —
    September 17, 1973.
    Ralph Ruebner, Deputy Defender, of Elgin, (Richard J. Wilson, Assistant Appellate Defender, of counsel,) for appellants.
    William J. Scott, Attorney General, of Chicago, and Dexter A. Knowlton, State’s Attorney, of Freeport, (James B. Zagel and Charles H. Levad, Assistant Attorneys General, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury’s verdict found the defendants guilty of armed robbery and they were sentenced to serve from 5-15 years in the penitentiary.

On March 13, 1970, at approximately 8:20 A.M., a Mrs. Roth of Free-port, Illinois, looking from her window, observed a brown and black two-door car (Cadillac) drive up and park across the street. She noticed that the motor was kept running and that the car was occupied by two black men. A dirty white two-door sedan (Ford), also containing two black men, pulled up behind the Cadillac and parked with the motor running. Five minutes later, a four-door silver car arrived, occupied by two black men; it parked in front of the other two vehicles. At 8:35 or 8:40, one passenger from the Ford and one from the Cadillac entered the silver car and drove off while the Ford and Cadillac remained, each occupied by one person.

At 8:47 A.M., the Freeport police received a call relating to the remaining parked cars observed by Mrs. Roth. Two policemen arrived at 8:50; one radioed in a description of the vehicles and their license numbers while his partner questioned the occupants. The man in the Ford stated that his name was Payne, that he had been waiting for someone, but that he was leaving. The occupant of the Cadillac gave his name as Patterson, said that he had been talking to the man in the Ford and that he, also, was just leaving. Both cars were gone by 9 A.M. Leaving the scene, the officers started toward the downtown area; enroute, they observed the Ford heading in the direction from which they had just come.

Elvin Neebel testified that he was a clerk in a Freeport liquor store; that on March 13, 1970 he opened the store at 8:45 A.M.; that shortly thereafter a tall black man entered, followed a few minutes later by a shorter black man; that both men pulled guns and announced a hold-up; that the men took money from the cash register, safe and from his wallet and placed it in a store wastebasket; that the taller robber took his watch; that they ordered him and a Mrs. Rideout, who had entered the store during the robbery, into a restroom, then fled; that after a few minutes he. left the restroom and called the police.

Mrs. Rideout testified that prior to entering the store she noticed a car parked in the lot with a Negro in the driver’s.seat.

The Freeport police radio broadcasted that an armed robbery had occurred; that three male Negroes had been involved; that one was tall and slim and another short and stocky. Neither the third participant nor the vehicle was described.

At 9:11 A.M., Trooper Belcher of the Illinois State police heard the broadcast and positioned his squad car 100 feet off Route 20 on an elevated side road 17 miles east of Freeport. Belcher testified that he was watching for the robbery suspects when, at 9:30, he noticed a white 1966 Ford travelling east from the direction of Freeport; that the car was exceeding the speed limit and contained two black men in the front seat and from his elevated position saw one black man reclining across the back seat; that as he prepared to pursue the vehicle it pulled into a gas station; that he positioned his squad car in front of the vehicle, and a sheriffs car which Belcher had signalled, parked behind it; that he asked for the driver’s license and was handed a license bearing the name of Francis Payne; that the description on the license did not match the driver’s physical characteristics; that the driver then admitted his name was Knowden and that the front seat passenger was Payne; the man in the back seat was identified as the defendant, Johnny Brooks.

All three men were removed from the auto, searched and placed in a sheriffs car while Belcher ran a check on Payne’s license.

At 9:58, two police officers brought Elvin Neebel to the gas station where he identified defendant Brooks as the shorter man who had robbed him, and stated that Payne looked like the taller man. The three men were then arrested for armed robbery.

The car stopped by Belcher proved to be the same white car that had earlier been parked with the Cadillac and investigated by the police.

The Cadillac was registered to Francis Payne in Robbins, Illinois but Payne denied that his car had been in Freeport that day. The Freeport police put out an aU-points bulletin describing the car and notified the Robbins police to pick up the car and hold its driver on suspicion of armed robbery. At 6:30 P.M. the Robbins police found the car; McKnight was driving. He was arrested, searched and taken to the Robbins police station where he was again searched. During the second search, his personal property was taken which property included the watch which had been taken from Neebel during the robbery. The watch was introduced and identified at the trial.

A cash register receipt from the liquor store (found in the back of the CadiUac) and the wastebasket taken from the store (found on the Route 20 bypass) were admitted into evidence. At the trial Neebel identified Brooks and McKnight as the men who had robbed him.

Both defendants raise four major issues: (1) the court erred in denying the defendants’ motion to suppress physical evidence and lineup identifications obtained as a result of their illegal arrest; (2) the evidence presented by the State was insufficient to prove defendants’ guilt beyond a reasonable doubt; (3) appointed counsel performed in a manner, which denied defendants a fair trial; and (4) the court abused its discretion when " it refused the defendants’ applications for probation because of their request for a jury trial.

Defendants allege ttiát they were arrested illegally in that no probable cause existed. Arrest by a*police officer without a warrant is proper if the -officer has reasonable grounds to believe that such person has committed a crimé. (Ill. Rev. Stat. 1969, ch. 38, sec. 107 — 2(c).) This belief may be founded on hearsay evidence and on factual and practical considerations of everyday life upon which reasonable, prudent men, not legal technicians, operate. The question of whether-probable cause exists depends on the facts of each individual case. See People v. Colbert, 10 Ill.App.3d 758, 760 (1973), and cases cited therein.

As ■ regards Brooks’ arrest, Trooper Belcher received information that án armed robbery had -been committed by three black men. He then observed three black men in a speeding auto travelling from the direction of the-robbery. This observation was made within one half hour of and approximately seventeen miles-from the scene of the crime. At this point in 'time Belcher had probable cause to stop the vehicle for speeding if not-in fact for the armed robbery. Before actual pursuit could begin the car pulled into the gas station. Although two police cars prevented the car from moving, this fact alone does not indicate that defendant" Brooks, a back seat passenger, was under arrest. Belcher testified that he then noticed that the height and weight of the two men in front matched the descripion of the two robbers. He thereupon learned that the driver did not have a valid driver’s license. It was at this point, when Brooks was searched and told to wait in the Sheriffs car, that his arrest occurred. -Based' upon the totality of facts known to Belcher at the time of Brooks’ arrest, there was probable cause to believe that all three men had participated in-the armed robbery.' It was therefore proper for the trial judge to deny defendant’s motion to suppress identification testimony resulting from the arrest. As to the arrest of McKnight, the police had a reasonable belief that the Ford had to some extent been involved in the armed robbery; that Payne had also been involved; that earlier that day,-minutes prior to the robbery, occupants of the Ford had been observed associating with occupants of the Cadillac and one of the occupants of the Cadillac had entered the Ford; that the Cadillac was owned by Payne; and that Payne lied to the police in stating that the auto had not been in Freeport that day. These facts were sufficient to create probable cause in the belief that the occupant of the Cadillac, McKnight, had participated in the commission of the same crime.

A further point in McKnight’s argument is that even if probable cause existed, an arrest warrant was necessary since the arrest occurred approximately 7 to 8 hours after the Freeport police put out an all points bulletin on the Cadillac. Wé 3ór not agree. The ultimate apprehension of the vehicle' and arrest of McKnight Was not too remote either in time (9 hours later) or in distance (120 miles). A délay of 8 hours between the time probable’ cause commenced' and the ultimate arrest does not dictate the nécessity of a warrant. People v. Sprovieri, 43 Ill.2d 223, 226-227 (1969).

McKnight also argues that even' if properly arrested, NeebeFs watch, taken during a routine prisoner inventory prior to incarceration, could not be used at trial because it was obtained without' a warrant. The watch was admitted into evidence not" only without objection but by stipulation. Further, defendant did not raise this precise issue in the lower court and we need not consider it.for the first time on appeal. People v. McAdrian, 52 Ill.2d 250, 253-255 (1972).

Both defendants argue that they were not proven guilty beyond a reasonable doubt on the grounds that there was an insufficient identification. Defendants attack NeebeFs identification as vague and uncertain. McKnight emphasizes the fact that Neebel'originally neglected to tell the police that he had long sideburns and sunglasses; Brooks emphasizes the fact that' Neebel did not originally inform the police that he had a mustache. However, precise accuracy in describing facial characteristics is unnecessary where an identification is positive. (People v. Catlett, 48 Ill.2d 56, 63 (1971).) Brooks argues that there was a three inch difference between his actual height and NeebeFs description. However, those portions of the record'cited by Brooks indicate that the shorter man was described by Neebel as 5'8" or 5'9" and that Brooks is approximately 5'9". Both defendants argue that the time Neebel had to observe the robbers was insufficient basis for identification. The jury was aware of NeebeFs testimony that he had observed the face of the taller man for 15 to 20 seconds and the shorter man for 10 seconds. Ten seconds of observation of a person during commission of a crime is not, as a matter of law, insufficient for eyewitness identification. NeebeFs" watch, having been found on McKnight’s person, and the cash register receipt discovered in the car which McKnight was driving on the day of the crime, additionally established his guilt. Neebel positively identified both defendants at trial and a positive identification by a single witness who has ample opportunity for observation is sufficient to support a conviction. (People v. Rodgers, 53 Ill.2d 207, 214 (1972); People v. Stringer, 52 Ill.2d 564, 569 (1972).) We hold that the guilt of both defendants was established beyond a reasonable doubt.

Defendant also contend they were denied adequate representation by counsel. After a review of the record we find no merit to this contention.

Defendants claim that the court denied their requests for probation because they had requested a jury trial. The probation officer’s reports stated that because of the serious nature of the offense together with a jury trial, the defendants would not be good prospects for probation. They interpret this to mean that the probation officer did not recommend probation because of the jury trial and that the judge followed such recommendation. Defendants ignore the evidence at the hearing for probation wherein the probation officer testified that he did not feel defendants should be penalized because they had received a jury trial. Regardless, the trial court is not bound by a probation officer’s recommendation and the record is void of any indication that the trial judge denied probation because defendants requested a jury trial. In an attempt to further substantiate their position on this issue, defendants state that Payne was involved in the armed robbery to the same extent as themselves but was granted probation. They overlook the fact that Payne pled guilty to a less serious offense (aiding and concealing a fugitive). We find no error in denying defendants probation.

Taken with the case were motions for summary modification of sentences. Defendants argue that the provisions of the new Unified Code of Corrections (Ill. Rev. Stat., (1972 Supp.), ch. 38, sec. 1005 — 1—1 et seq.) govern their sentencing, that the Code provides a minimum of four years incarceration upon conviction for armed robbery, that their five year minimum sentences are excessive, and, therefore, their sentences should be reduced to a minimum of four years an a maximum of 12 years.

While the new Code controls the instant case, its sentencing provisions only apply “if they are less than under the prior law upon which the prosecution was commenced.” (Ill. Rev. Stat, (1972 Supp.), ch. 38, sec. 1008 — 2—4.) Here the prosecution was commenced under section 18 — 2(b) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, sec. 18— 2(b)), which provided a penalty of any indeterminate term with a minimum of not less than 2 years. Since the sentencing provision of the Code is greater than under the prior law, the new Code does not apply. Defendants’ motions are denied.

Finding no error, we affirm the judgment of the trial court.

Judgment affirmed.

GUILD, P. J„ and SEIDENFELD, JJ., concur.

       Defendants also question the identifications made by Mrs. Roth and Mrs. Ride-out. The State admits that neither of these witnesses could give testimony sufficient to establish the identity of the accused.


author: Mr. JUSTICE SCOTT

text:
    Gladys Cleo Tipsword, Admr. of the Estate of Floyd H. Tipsword, Deceased, Plaintiff-Appellant, v. Armada M. Melrose, Defendant-Appellee.
    (No. 72-151;
    Third District —
    September 18, 1973.

      Rehearing denied October 15,1973.

    Philip C. Zimmerly, of Champaign, and Francis J. Householter, of Kankakee, for appellant.
    Ackman, McKnelly, Reagan & Taube, of Kankakee, (Robert Mc-Knelly, of counsel,) for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit court of Kankakee County.

The plaintiff, Gladys Cleo Tipsword, sued both individually and as the administrator of the estate of Floyd H. Tipsword to recover damages for the wrongful death occasioned by the alleged negligence of the defendaht, Armada M.. Melrose, in driving .her automobile and fading to render, assistance to an .injured person. A second, count was brought by the widow individually to recover for funeral and burial expenses.

A jury trial was held and the jury returned , verdicts for the defendant and by their answer to a1 special interrogatory found contributory negligence on the part of the-decedent, Floyd, H. Tipsword.

The accident which led to the death of Floyd H. Tipsword took place at approximately 8:30 P.M. on Aúgust'22; 1968/ at an intersection of two rural roads near Essex, Illinois. The deceased was driving a pickup truck eastbound tin..a freshly graveled east-west road and;the defendant was proceeding north on a dusty gravel road. The defendant testified that when she approached the intersection she stopped, looked carefully both ways,' and proceeded slowly into'the intersection. Her line of vision to the west, the direction from which the decedent was driving, was approximately one-half mile. ■ ■ -

She further testified that she did not see any lights, plumes óf dust, or approaching vehicle until just before the impact when she. saw the lights of the Tipsword .vehicle. ...

There was testimony adduced for the- plaintiff', that the Tipsword vehicle had its lights on and was raising a plume of dust as it proceeded down the road.: The further testimony :of the driver' following, the Tips-word vehicle was that he followed the decedent’s vehicle for about a mile and a half at a speed of twenty-five -miles per hour, neither gaining or losing on the’ Tipsword- vehicle, and that1 the vehicle Was causing a big plume of dust. He further testified. that when he .saw a big cloud of dust , and the lights of ..the .Tipsword vehicle skewered around it took, him .approximately a minute, to. cover the last half mile to-the scene of the accident. . ... ...

After the. collision Mrs. Melrose called out to the decedent to see if he were hurt, and ran.for help, and caused a local, rescusitator squad to be summoned. ...

The cause of death was from hemorrhagic shock or loss of blood, A further recital of essential facts Will be set .forth, as they become pertinent to the issues presented for review.

The issues presented for review are (1) .whether the jury was improperly instructed concerning the right of way statute, (2) whether, the investigating state policeman was improperly allowed to reconstruct the collision, (3) whether the special interrogatory was improper in form, (4) whether the answer to the special interrogatory was contrary to the manifest weight of the evidence, (5) whether the verdict was contrary to the manifest weight of the evidence.

Directing our attention to the first issue raised, it is apparent that the plaintiff is primarily concerned with defendant’s instruction 13A which was given to the jury. This'instruction was as follows:

“At the time of the occurrence iii question there was in force in the State of Illinois a statute governing the operation óf motor vehicles approaching intersections.
If twd vehicles are approaching an intersection from different highways at such relative distances from the intersection thát if each’is being' driven'at'a'reasonable speed, the vehicle on the right will enter the intersection at about the same, time, then this statute requires the driver of the véhicle oñ the left .to yield the right of way to the vehicle on the right.
■’ On the other hand,- if .two vehicles'are approaching the intersection from different highways at . Such relative distances from the intersection that if each is being driven at a reasonable speed, the vehicle on. the left will enter the intersection and pass beyond the line of travel of the' vehicle on the right' before the vehicle on the' right enters the intersection, then this statute requires the driver of the vehicle on the right'to.yield the right of way to the vehicle on the left.
The fact that a vehicle has the right of way does not relieve its driver from the duty to exercise ordinary care in approaching, entering and driving throiigh the intersection. . ■ . • ■
If you decide that the decedent'or the defendant violated the statute on the'occasion in question, thén .you ’ may consider that fact together with all of the other fact's and circumstances in evidence in determining whether or'not*-the decedent or defendant was ctintribtitorily negligent dr ‘negligent before and at the time of the occurrence.”' ' ' ' ' ’

Essentially this instruction is the one set forth in Illinois Pattern Jury Instructions as instruction 70.02 'with the exception that an additional paragraph • was added for the purpose of identifying the respective drivers of the' motor vehicles to further make the instruction applicable to both the decedent and the defendant. ' ' '

The plaintiff first contends that the instruction 'is'prejudiciál in that it implies a rigid, absolute right-of-way at an intersection to the vehicle on the right; and that the courts of our state have consistently held that the vehicle on the right does not have such an absolute right-of-way. We quarrel not with the'cases cited by the plaintiff-to the effect that the vehicle on the right is always entitled to the right-of-way; however, we do not find such rigidity or, absoluteness in the instruction"given. A mere reading of the fourth paragraph of the instruction belies such an interpretation since it is specifically stated:

“The fact that a vehicle has the right of way does not relieve its driver from the duty to exercise ordinary care in approaching, entering and driving through an intersection.”

Certainly such language cannot be construed to be either argumentative or peremptory. The instruction is intended and designed for open intersection cases such as the one in question and we deem it to be couched in terms fair to the parties involved.

The plaintiff would further argue that the defendant by her conduct waived the so-called statutory right-of-way and for this reason it was error to give instruction 13A. In considering this contention we must examine the record in order to ascertain as nearly as possible the factual situation surrounding the fatal accident. Such an examination discloses that the collision occurred at a rural intersection which was uncontrolled by traffic signs, signals or markings. As we have previously stated the plaintiff’s decedent was traveling east and the defendant north, thereby placing the defendant on the right. The collision occurred at a time after sundown but before the setting in of darkness. Both roads being traveled were of gravel surface and quite narrow, ranging from ten to twelve feet in width. Visibility was hampered by tall growing corn in fields at all comers of the intersection. Both vehicles were using their headlights and both drivers were familiar with the intersection. Upon approaching the intersection the defendant stopped her vehicle so that upon reaching it her head was from six to eight feet south of the east-west roadway. After looking both to the left and right and failing to see anything she proceeded into the intersection and almost immediately thereafter the collision occurred.

The plaintiffs theory that the defendant’s conduct is such as to constitute a waiver of the right-of-way privilege is based upon the proposition that such privilege is waived when one proceeds into an intersection without first maintaining a proper lookout. We agree with the holdings in the cases cited by the plaintiff, to-wit, Kirchoff v. Van Scoy, 301 Ill. App. 366, 22 N.E. 966; Roth v. Kanchier, 91 Ill.App.2d 111, 234 N.E.2d 59, in that the statutory privilege of right-of-way to the vehicle on the right can be waived but in these cases such waiver resulted from the driver of the vehicle on the right failing to maintain a proper lookout or failing to exercise due care for his own safety. No such failure to exercise due care or maintain a proper lookout exists in the instant case. On the contrary, we can only conclude that if plaintiffs decedent had used the same degree of care as that exercised by the defendant in approaching and crossing the intersection then there would have been no collision and resultant lawsuit.

Why the defendant failed to see lights, plumes of dust or some indication of the plaintiff's decedent’s approach to the intersection will never be known but her testimony as to the care she exercised is unrefuted and a party has the right to have the jury instructed on his theory of a case and the question as to what issues have been raised by the evidence falls within the discretion of the trial court. (See Sherman v. City of Springfield, 111 Ill.App.2d 39, 250 N.E.2d 537; Blanchard v. Lewis, 414 Ill. 515, 112 N.E.2d 167; Pantaleo v. Gamm, 106 Ill.App.2d 618.) We do not believe that the trial court abused its discretion in giving instruction 13A to the jury. The question as to which driver has the right-of-way at an open intersection is indeed a question of fact for the jury and such an instruction is proper in order to assist the jury in making its determination. Bentley v. Olson, 324 Ill.App. 281, 58 N.E.2d 316; Payne v. Kingsley, 59 Ill.App.2d 245, 207 N.E.2d 177; Gauger v. Mills, 340 Ill.App. 1, 90 N.E.2d 790.

The plaintiff asserts that instruction No. 14 which was given to the jury reinforces, cumulates and compounds the error which resulted in the giving of instruction 13A. Having determined that the presentation of 13A standing by itself did not constitute error we will now ascertain what effect if any was had upon it when considered in conjunction with instruction 14 which stated:

“It is the duty of every driver of a vehicle using a public highway to exercise ordinary care at all times to avoid placing himself or others in danger and to exercise ordinary care at aU times to avoid a collision.”

As stated in the committee notes in IUinois Pattern Jury Instructions, Second Edition, I.P.I. 70.01, page 260, this is an instruction defining the common law duty of persons operating motor vehicles on public highways. It places the same burden of care on all drivers and rather than having a prejudicial effect as far as the plaintiff is concerned we deem it to be a necessary instruction in cases such as the one we are considering in that it provides a guideline of fairness to all parties concerned.

The plaintiff likewise argues that instruction 15-A which was given compounds the alleged errors of instructions 13-A and 14. Instruction 15-A was as follows:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that: ‘The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection * * *, when traveling upon any narrow * * * -roadway, or when special hazard exists * *' * by reason of * _ * * ■ highway; conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in-compliance with legal requirements and the duty of all persons to use due care.’
If you decide that the decedent or the defendant violated the statute on the occasion-in question, then you may consider that fact together with all of the other facts and circumstances in evidence .in determining, whether or not the decedent or defendant was, contributorily negligent or negligent before and at the time of the occurrence.”

The plaintiff argues that there was no evidence of unreasonable speed of the . decedent’s vehicle prior to the collision and therefore there was no violation of a statute which proximately contributed to the collision. It should be noted that the instruction is drafted to apply equally to the plaintiff’s decedent and the defendant.. In substance it calls attention to an existing statute which provides that a driver must decrease speed when approaching and crossing an intersection, when traveling upon a narrow highway or when a special hazard existed as the result of a highway condition. The instruction , further, places upon the jury the duty to determine in light of all the evidence as to whether this statute was violated and therefore a driver was negligent or contributorily negligent.

The record makes it clear that in the instant case the highway traveled by ■ both drivers was narrow, and that vision at the, intersection was obscured by growing com. There is evidence that plaintiffs decedent was at a considerable.distance behind being followed by a driver Lloyd Wells, who was driving at - approximately 25 miles per hour and .that at such speed Wells’ vehicle neither closed the gap or. fell further behind the decedent as he followed, him. Further testimony, was adduced from Wells that- he traveled behind the decedent for only a mile or less and that he. never noticed ¡ the brake lights coming on decedent’s vehicle. There is evidence in the record that the decedent did make an emergency application of his brakes when some 82 to 84 feet from the .point of impact. In the light of this evidence ,we find .that no error resulted from the giving of instruction 15-A. It was within the province of the jury under the circumstances- existing.to determine whether or not the statute referred to in the instruction was indeed violated. We cannot agree with the plaintiff that.the.record was barren of any unreasonable speed on the, part of the decedent in view of-the circumstances, to-wit, narrow highway, - obscured visibility and skid, marks. The plaintiff appears to be complaining that there was cast upon her the burden of proving freedom from contributory negligence but this burden was in this case as in all such cases upon the plaintiff.

When considering instructions 13-A, 14,-. and 15-A, individuaUy and in conjunction with each other we fail to find irregularities of such consequence as to provide grounds for reversal.

The second issue raised by the plaintiff is that the trial court committed reversible error in permitting a state trooper to testify as to the point of impact of the vehicles and the. paths of the vehicles after impact. After testimony elicited on direct and cross examination the' trooper then diagramed for the jury his conclusion as to the point, of impact and the manner in which they collided. The trooper testified that it was his duty to take measurements and make a report concerning the collision and that he had investigated approximately 1,000 such accidents and was trained to arrive at conclusions regarding conclusions based upon physical evidence found at the scenes and statements received from witnesses. ,

It is the position of the plaintiff that the trooper’s testimony can only be justified if it falls within the realm of expert testimony and then its admissibility rests within the sound discretion of the court only if certain criteria are met. The requisite criteria are set forth in the case of Abramson v. Levinson, 112 Ill.App.2d 42, 250 N.E.2d 796. In Abram-son the reviewing court held that certain factors should be present before the testimony of a reconstruction expert is entitled to admission into evidence. The court outlined these factors in detail-and are as follows:

“1. The expert has the necessary expertise as a result of education, training and experience in the specific area about which he expresses an opinion,
2. The area of inquiry should require the employment of principles of physics, engineering or other science or scientific data beyond the . ken of the average juror,
3. The opinion of the expert cannot be naked, but must come clothed in evidentiary facts in the record, the inferences reasonably arising therefrom and must be elicited by hypothetical questions containing substantially all of the undisputed facts in evidence relating to the issue about which an opinion.is sought, and
4. There must be a need apparent from the record in the case for scientific knowledge,- expertise and experience which will aid the jury to a correct and a just result.”

As it can be noted Abramson sets forth stringent requirements which must be met before reconstruction testimony from an expert witness can be received in evidence, however, such, stringency is not -necessarily a requisite in each and every case where the question presented is the admissibility of an expert’s opinion. We believe the case that resolves the question presented in the instant case is that of Diefenbach v. Pickett, 111 Ill.App.2d 80, 248 N.E.2d 840.

The reviewing court’s language in Diefenbach clearly directs itself to the precise question which confronts us in this appeal. The court stated:

“A corporal of the Illinois State Police, who had investigated approximately 900 automobile collisions testified over objection that it was his opinion based upon the location of the vehicles before they had been moved and the location of debris, the collision between the Pickett and Olso vehicles occurred approximately 3 feet east of the pavement, and that the collision between the Pickett and Diefenbach vehicles occurred in the south bound lane of traffic. Defendant contends that the evidence was inadmissible, because it required no special knowledge but was within the knowledge of all persons of common education and experience, and the jury could have drawn its own conclusions from the simple facts; that such expert evidence put undue emphasis on defendant’s being at fault. Admissibility under the circumstances here presented, rested within the sound discretion of the trial judge, and was not abused. Thomas v. Cawgin, 43 Ill.App. 2d 336, 340, 193 N.E.2d 233, 235, and citations therein.”

The criteria set forth in Abramson if followed without deviation would have the practical effect of barring reconstruction testimony in almost every instance if the witness was a state trooper and we do not believe this to be a desirable effect.

As to the plaintiff’s contention that the trooper’s testimony was not necessary since there were adequate eye-witnesses we can only conclude that such contention is not supported by the record. The defendant testified that she had no knowledge as to the movement of her vehicle or the decedent’s vehicle after the impact and the witness Wells stated that he did not see the impact.

We note that none of the trooper’s testimony was contradicted either by witnesses or photographs and therefore it is impossible for us to conceive how such testimony could have been prejudicial to the plaintiff. Lacking a showing of prejudice you also lack error of sufficient import to vitiate a verdict. See Adamaitis v. Hesser, 56 Ill.App.2d 349, 206 N.E.2d 311.

The plaintiff also asserts that a special interrogatory submitted to the jury was in improper form. The interrogatory was as follows:

“Question: Do you find that there was negligence on the part of the deceased, Floyd H. Tipsword, that proximately contributed to cause his death?”

The jury answered this interrogatory in the affirmative. The plaintiff raises several objections to the interrogatory, the first being that it was ambiguous in that it did not differentiate between the two theories upon which plaintiff sought relief. Plaintiff during the trial did proceed on two theories of recovery, to-wit, (1) negligence on the part of the defendant in causing the fatal collision and (2) negligence on the part of the defendant not in causing the collision but rather in failing to render proper assistance after a collision.

The plaintiff’s complaint as originally drafted and filed falls in the classification of being a standard one for wrongful death which resulted from negligence which caused a collision; however, on the second day of the trial the plaintiff was permitted to amend her complaint which had the effect of adding an entirely different theory for basis of recovery. Sub-paragraph (h) was added to paragraph six of the pleading which alleged:

“(h) Negligently failed to stay at the scene of the collision and render assistance, contrary to Ill. Rev. Stat. Chap. 95%, Sec. 135.”

The following paragraph of the complaint provided:

“(7) That as a direct and proximate result of the negligence of the defendant, Armada M. Melrose, as aforesaid, her vehicle was caused to and did collide with the vehicle driven by Floyd H. Tipsword and as a direct and proximate result thereof Floyd H. Tipsword sustained injuries from which he died on August 22, 1968.”

An examination of the complaint as amended makes it patently clear that it presented an inconsistency that could only create difficulty, for how is it possible to cause a collision by failing to stay at a scene of a collision and render assistance? The plaintiff was permitted to consolidate two separate and distinct theories of recovery into the same count of a complaint. This impropriety was repeatedly called to his attention by counsel for the defendant but plaintiff persisted in her course of action thereby creating an ambiguity of her own choice. A special interrogatory must be directed towards the determination of an ultimate fact and the one submitted by the defendant was so drafted. It is true that the jury’s affirmative answer to the interrogatory in view of the plaintiffs theory of “duty to render assistance” can be charged with creating an ambiguity; however, the cornerstone for such ambiguity was laid by the plaintiff so she cannot now complain of a result which could have been anticipated and of which she was cautioned.

• The plaintiff in her brief acknowledges that the more serious question surrounding the interrogatory is that it fails to Emit1 the inquiry to before and at the time of the occurrence. In an action for personal injuries, being the, case of Chase v. Morgan Cab Co., 2 Ill.App.3d 203, 276 N.E.2d 393, the trial court approved the following special interrogatory:

“Do you find from consideration of all the evidence and under the instructions of the court that the plaintiff was guilty of contributory negligence which proximately contributed to cause his alleged injury?”.

This special interrogatory is almost identical with the one which we are now' considering in- the instant case. In Chase the reviewing court made the following observation:

“Plaintiff counters, however, with the proposition that the form of the special interrogatory was vague, ambiguous and confusing, and therefore should have been ignored in any event. While the interrogatory did not contain a. clause limiting its concern to the time ‘at and immediately prior to the occurrence,’ we believe that this, did not, under the circumstances, lead to any confusion as to the period contemplated. Nor do we find any merit in plaintiff’s argument that the term, ‘contributory negligence,’ and the clause, prbxipiatély contributed tti cause,’ were productive of confusion in the minds of the jurors * * Chase v. Morgan Cab Co., 2 Ill. App.3d 203, 276 N.E.2d 393.

.. We subscribe to the reviewing court’s observation in Chase and therefore,.do not find that the special interrogatory complained of was in such an improper form as to constitute reversible error.

The plaintiff further argues that the jury’s answer to the special interrogatory and the general verdict itself was against the manifest weight of the í evidence. Throughout this opinion we have recited the facts which •resulted in this lawsuit as we. deemed them pertinent to the issues with the - exception of the material contained in the record relating to the defendant’s action -and conduct after the collision. Since this material is ■related, to the plaintiff’s theory that a common law action for negligence .can be maintained for violation of the statute (Ill. Rev. Stat. 1969, ch. 95%( sec. 135), which requires One to render assistance after an accident, we will now recount from the record of defendant’s actions at such time.

After the collision the pick up truck driven by the decedent was located in a ditch approximately eight feet in depth. The top of the truck cab was close to ground level. Immediately after the collision the defendant went to the ditch and being unable to see anyone in the truck and thus obviously being unaware as to the extent or nature of any injuries suffered by its occupant, she made inquiry as to whether anyone was hurt. The truck’s occupant replied that he was injured and was informed by the defendant not to move and that she would seek help. The defendant then ran for approximately one-half mile to a residence where arrangements were made for an ambulance.

The decedent’s death resulted from uncontrolled bleeding and it is plaintiffs contention that application of pressure would have prevented the flow of blood and that the defendant is negligent for not having performed such first aid treatment. The defendant was not possessed of any special knowledge or training in regard to medical assistance or first aid training.

If the mere application of pressure would have prevented the death of plaintiffs decedent then the lack of such treatment is indeed a grievious circumstance. However, had the defendant clambered into the ditch, located the wound, and attempted to administer first aid but to no avail, could not the plaintiff equally argue that the defendant was negligent in not seeking trained assistance? In making this observation we are indulging in conjecture but the plaintiffs theory that the defendant is negligent in that she violated the “rendering aid” statute (Ill. Rev. Stat. 1969, ch. 95%, sec. 135) is a novel theory. We need not determine whether its violation under any set of facts could be the basis for an action in negligence for suffice to say the jury rightfully found in the case before us that the defendant was not guilty of its violation.

We do not find the answer to the special interrogatory and the general verdict of the jury to be against the manifest weight of the evidence. Questions of negligence or contributory negligence are ordinarily for the jury to decide. (Net v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74.) We need not again reconstruct the facts and make an analyzation of them for in the light of them the jury’s verdict was not so palpably erroneous and unwarranted as to necessitate its citiation. The observation that we made in the recent case of Rhodes v. Oliva ante, p. 849, is applicable to the present one when we stated:

“As we have frequently observed, the test is not whether this court, if it were a trier of fact in the case, would have reached a different conclusion than that of the jury. This court is governed solely by an examination of the record and does not have the opportunity to see and hear the witnesses in the case. As stated in Schneiderman v. Interstate Transit Lines, Inc., 331 Ill.App. 143, 147, 72 N.E.2d 705:
‘There are many things which a jury observes on the trial 000 that do not appear from the printed record — the appearance of the respective witnesses., their manner of testifying and a great many other circumstances. They are in a much better position * ° * to determine the truth of the matter in controversy than a court of review. ’(See also: Mirich v. T. J. Forschner Contracting Co., 312 Ill. 343, 358, 143 N.E. 846; Kotulla v. Great Lakes Terminal & Transport Corp., 101 Ill.App.2d 457, 463, 243 N.E.2d 461,464).
As we have indicated in many cases, this court is not authorized to substitute its judgment for that of the triers of fact if there is sufficient evidence in the record to support the jury’s determination. Since we find that to be the case in the cause before us, the determination of the jury will not be set aside.”

For the reasons set forth the judgment of the circuit court of Kankakee County is affirmed.

Judgment affirmed.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jack Lee Johnson, Defendant-Appellant.
    (No. 11613;
    Fourth District —
    September 20, 1973.

      Modified on denial of rehearing December 11,1973.

      John F. McNichols, Deputy Defender, of Springfield, for appellant.
    Everett Laury, State’s Attorney, of Danville, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from an order revoking the probation which had been granted after conviction for theft and burglary, Sentence of one to five years was imposed.

The alleged violations of probation were that defendant knowingly obtained possession of property stolen from one Hatfield and from one Hayes knowing that such property had been stolen by another or then knowing circumstances that would reasonably induce defendant to believe that such property had been stolen intending to deprive the owners permanently. Defendant was also charged with burglary of the residence of Clifford Wilsey.

A warrant was issued directing the search of the trailer home occupied by defendant for six rifles and shotguns. The complaint for search warrant consisted of two pages. The signature of the complaining officers was verified by the magistrate upon the first page. The text on that page included:

“Complainants say that they have probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the premises set forth above: (see attached sheet).”

Such attached sheet contained a recitation of facts supporting probable cause for issuance of a search warrant. It is contended that the recited facts appearing on the attached page are neither subscribed nor verified.

The two pages constitute a single document which are a part of the court records. The language of the complaint shows that the magistrate would necessarily consider the specifications upon the attached page in issuing the warrant. Affidavits for the search warrants are to be interpreted in a realistic manner and not tested by elaborately technical requirements. (People v. Young, 4 Ill.App.3d 602, 279 N.E.2d 392; United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741.) The page on which the verifications appear directed attention to the attached page and the complaint was complete only as a two-page document. (People v. LaValley, 7 Ill.App.3d 1051, 289 N.E.2d 45.) The identities of the affiants are clearly shown in the body of the complaint and it is not necessary that the signature appear at the end. Lieder v. Chicago Transit Authority, 26 Ill.App.2d 306, 167 N.E.2d 710.

In the execution of the warrant the described weapons were found hidden in the walls of the trailer. The searching officers also found and seized numerous items of personal property as stolen and contraband. A rifle described in the warrant, together with a Hitachi radio and a hunting knife, were identified as the property of Hatfield and were offered into evidence. In the revocation proceedings, no other items were offered or admitted.

Defendant asserts violations of the State and Federal constitutions in that property not specified in the search warrant was seized. In denying the petition for rehearing, we note that section 114 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 12) provides that a defendant aggrieved by an unlawful search and seizure may move the court to suppress the property as evidence and for its return. Subparagraph (a)(2) provides as grounds for the motion that:

“The search and seizure with a warrant was illegal because the warrant is insufficient on its face; the evidence seized is not that described in the warrant; there was not probable cause for the issuance of the warrant; or, the warrant was illegally executed.”

Such statute further provides that the motion shall be made before trial unless an opportunity to do so did not exist or the defendant was not aware of the grounds for the motion. Such motion to suppress may be made during trial if the court determines that it is timely.

The record shows no motion to suppress the evidence seized or any part of it prior to the trial. No motion to suppress was made during the trial and we find no objection to the testimony concerning the items or to the admission of such into evidence based upon the seizure.

An illegal search and seizure will not be considered on appeal where the issue has not been raised in the trial court. (People v. Harris, 33 Ill.2d 389, 211 N.E.2d 693, cert. denied, 383 U.S. 971, 16 L.Ed.2d 311, 86 S.Ct. 1282.) Such rule of waiver is followed where it is first sought on appeal to raise constitutional issues. People v. Linus, 48 Ill.2d 349, 270 N.E.2d 12; People v. Thompson, 48 Ill.2d 41, 268 N.E.2d 369.

Defendant cites People v. Sovetsky, 343 Ill. 583, 175 N.E.2d 844; People v. Kimmel, 34 Ill.2d 578, 217 N.E.2d 785, and Stanford v. Texas, 379 U.S. 476, 13 L.Ed.2d 431, 85 S.Ct. 506. In each of such authorities there was review of the denial of motions to suppress or to quash the search warrant.

At the hearing on revocation, the court admitted testimony of the witnesses, Camden and Hannah, over an objection that such was beyond the scope of the petition. These witnesses identified items seized during the search as belonging to them. As an incident to this identification, they testified to the burglaries of their respective homes on stated dates. Defendant now contends that there was error in that defendant had no notice as to such testimony as the witnesses were not named in the petition.

The amended petition alleges that defendant obtained control of identified stolen property of Hatfield and Hayes, “as well as the property of others”. In People v. Tempel, 131 Ill.App.2d 955, 268 N.E.2d 875, this court said that the defendant, in a petition to revoke probation, was entitled to such notice as would inform him of the nature of the conduct alleged to be grounds for revocation, but that such conduct need not be identified with the same specificity as was required in an indictment or information. Here, as in People v. Price, 24 Ill.App.2d 364, 164 N.E.2d 528, the defendant could have challenged the sufficiency of the language “property of others”, or moved for a more particular statement of facts, but he failed to do so.

Defendant was fully advised of the allegation of the possession of stolen property, i.e., the nature of the conduct, and he had an opportunity to be heard but, in fact, offered no evidence by any witness to explain or deny the possession.

Defendant cites People v. Dwyer, 57 Ill.App.2d 343, 206 N.E.2d 113, wherein the petition alleges several acts in violation of the terms of probation, but the court permitted testimony concerning a separate and distinct act which had not been alleged. Defendant there testified as to the charges. Upon review, the court found that there was no convincing evidence of any violation and simply noted that defendant was not advised prior to hearing of tire charge in the added testimony so that he could be properly heard upon such.

Defendant’s argument that the testimony of Camden and Hannah was solely for the purpose of showing defendant’s criminal propensity is without merit. The amended petition, without objection, alleged the burglary of the Wilsey home as well as the possession of property stolen from Hatfield and Hayes. We are not advised as to the fact of any limit upon the number of violations of probation which may be charged simply because such charges may show propensity to commit crime or to violate probation. In this case we find that there was adequate notice of the grounds for revocation and an unclaimed opportunity to be heard or to otherwise present evidence.

In urging that there is no sufficient proof of the violation of probation, it is asserted that there is no sufficient proof that defendant lived in the trailer or that the defendant knew that the goods were stolen. There is no evidence which contradicts the testimony of the police that defendant lived there, that the warrant was served on defendant’s wife and that defendant was served with a copy of the warrant when he returned. Upon the question of knowledge that the goods were stolen, numerous items of personal property were found throughout the trailer of defendant, as well as the guns which were concealed within the walls. The sheer volume of articles in the trailer which were not claimed by defendant would support an inference that there was knowledge that the goods were stolen. Possession of recently stolen property not satisfactorily explained ordinarily supports the inference that the person in possession knew that the property had been stolen. (Barnes v. United States, 412 U.S. 837, 37 L.Ed.2d 380, 93 S.Ct. 2357.) Defendant relies upon People v. Evans, 24 Ill.2d 11, 179 N.E.2d 657, and People v. Baxa, 50 Ill.2d 111, 277 N.E.2d 876. These cases are not persuasive in that each defendant was a passenger in an automobile driven by another when the stolen goods were found. So far as the opinions show, those defendants did not own or control the automobile. Again, in People v. Rubin, 361 Ill. 311, 197 N.E. 862, defendant purchased the goods from a known dealer. Such authorities cannot be related to the facts in this case.

A sheriff’s deputy testified concerning a conversation with defendant at the jail on a subsequent date. Included were statements from which it may be inferred that defendant knew that the goods were stolen. Defendant contends that there was a failure to prove a knowing waiver of the rights provided in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602. The only objection made at the trial to the testimony was that it was not offered in written form.

It is not necessary to show express waiver of Miranda rights. The criteria of admissibility is a combination of what was said taken in the context of surrounding circumstances. (People v. Landgham, 122 Ill. App.2d 9, 257 N.E.2d 484, cert, denied, 402 U.S. 911, 28 L.Ed.2d 652.) The uncontradicted testimony is that the deputy advised defendant of Miranda rights and that defendant said that he was aware of his rights from other cases. Thereafter, in response to inquiry, defendant indicated that he wasn’t sure whether he wished to talk about the case. Having responded to several questions defendant stated that he wished to talk to an attorney and the interview thereupon was terminated. Such uncontradicted circumstances suggest that defendant was well aware of bis rights and exercised them at the point where he wished to do so. The deputy conducted himself precisely within the limits stated in Miranda, 384 U.S. 436, 474, 16 L.Ed.2d 694, 723. The evidence was admissible. See People v. Dent, 131 Ill.App.2d 157, 266 N.E.2d 501.

It having been concluded that the court was not in error in finding defendant guilty of knowingly controlling recently stolen goods, it is not actually necessary to review at length the burglary of the Wilsey home which is also alleged in the petition to revoke. The evidence is clear that defendant was in the car driven by his brother, Fred, which was parked in the drive of the country home at 4:00 P.M., and that defendant waited in the car while Fred and one Walton went into the house and brought the loot and placed it in the car trunk. Walton, who had pleaded guilty to the burglary, testified that he was picked up as a hitchhiker and that they drove around drinking beer without a word being said concerning burglary until Fred drove the car into the Wilsey home and Walton first entered.

Defendant argues that there was no proof that defendant committed the overt act of entry. Upon the facts there is a reasonable inference of a role as a lookout, or an effort to protect his probation status. One may aid or abet or be accountable under section 5 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 5 — 2) without actively participating in the overt act. (People v. Clark, 30 Ill.2d 67, 195 N.E.2d 157.) There is the undeniable close association between defendant and his brother Fred. Defendant’s conduct at the scene was not consistent with that of an innocent man and there may be an inference of design between them. People v. Thicksten, 14 Ill.2d 132, 150 N.E.2d 813.

The evidence shows that after the burglary defendant possessed and controlled a substantial portion of the items taken from the Wilsey home. Such evidence sustains the court’s finding. People v. Winchell, 100 Ill.App.2d 149, 241 N.E.2d 200; People v. Dunham, 13 III.App.3d 784, 300 N.E.2d 328.

A judgment pending on appeal has not yet reached a final adjudication. (People v. Chupich, 53 Ill.2d 572, 205 N.E.2d 1; People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750.) For such reason the sentence imposed is subject to the provisions of the Unified Code of Corrections, effective January 1, 1973. (Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1008 — 2—4.) That Code, in section 5 — 6—4(h) (par. 1005 — 6—4(h)), provides:

“Time served on probation or conditional discharge shall be credited against a sentence of imprisonment or periodic imprisonment.”

Section 5 — 4—1(d)(3) of the Code (Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1005 — 4—1(d)(3)) provides that the clerk of the court shall transmit to the department or other agency the number of days defendant has been in custody and for which he is entitled to credit. There is, however, no similar provision for stating to the department the amount of time served on probation to enable the administrative application of sentence credit as provided in section 5 — 6—4(h) of the Code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 6—4(h)). It is therefore necessary for the trial court to determine the quantum, of time spent on probation when imposing sentence.

The order revoking probation and the sentence imposed are affirmed. The case is remanded with directions to issue an amended mittimus which reflects the time served on probation.

Affirmed and remanded with directions.

§^ITH? P. J., and SIMKINS, J., concur,


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raul Garcia Uribe, Defendant-Appellant.
    (No. 72-129;
    Second District —
    September 17, 1973.

      Paul Bradley, Deputy Defender, of Elgin, (Richard J. Wilson, Assistant Appellate Defender, of counsel,) for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva, (Leo Wotan, Jr., Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found the defendant guilty of attempt armed robbery and he was sentenced to serve two to seven years. He claims error in that he was reindicted on the same charge after the original indictment was dismissed for failure to conduct a preliminary hearing, and the court allowed an Allen instruction to be given to the jury along with the initial instructions. A motion was filed and taken with the case.

On August 4, 1971, the defendant was arrested, by warrant, for attempt armed robbery; he was indicted on August 16. On August 20, he was arraigned and pled not guilty; the case was set for trial. On September 20, a motion to dismiss was filed, alleging that a preliminary hearing had been scheduled for September 7, that prior thereto the indictment was returned without the defendant having been afforded a preliminary hearing and, that the indictment should therefore, under section 7 of article I of the 1970 constitution, be dismissed. The court agreed and the indictment was dismissed.

New complaints were filed charging the same acts and offenses. A preliminary hearing was held on September 29 during which the court found no probable cause as to the armed robbery offense but did find such cause on the attempt armed robbery complaint. The defendant was bound over to the grand jury. On October 4 he was reindicted for attempt armed robbery, and no objection was made in the trial court to the new indictment.

The promptness of a preliminary hearing is not before us and although the defendant’s first contention was never raised in the trial cotut we will address the issue. Defendant’s position is best related by the quotation from his brief:

'In short, the defendant contends that the right to a preliminary hearing, having been elevated by the new Illinois Constitution to constitutional status, (Section 7, Article I) is an absolute right. The failure to afford the defendant a preliminary hearing as required under the new Constitution dictates that any new proceedings initiated after the dismissal of an indictment so procured be considered a nullity, and any judgment obtained thereupon is void.”

Our supreme court, under similar facts, has recently rejected this same argument. In People v. Hendrix, 54 Ill.2d 165, 169 (1973), it was held that the return of an indictment, without a prior preliminary hearing, does not void the indictment as “section 7 does not provide a grant of immunity from prosecution as a sanction for its violation. Nor would an interpretation make sense which required the dismissal of the present indictment and the discharge of the defendant, to be followed by his reindictment and rearrest upon a new indictment.”

Defendant’s remaining claim of error is that the court, of its own volition, included an Allen charge in its initial instructions to the jury. It is requested that we not only condemn the giving of such instruction but hold it to be reversible error, per se, when submitted at the outset of the jury deliberation; that if not error per se, then under the circumstances of this case, the giving of the charge at the start of deliberations amounted to reversible error. To support this last contention it is argued that although the issues of the case were simple (the trial lasted but one-half day) the verdict was not reached until 2:10 A.M. the following morning, which to defendant’s thinking was sufficient to indicate that the questioned instruction coerced the jury into a finding of guilty.

While the instruction has not been condemned, as here requested, it has been modified since defendant’s trial. The modification, however, was given only prospective effect. (See People v. Prim, 53 Ill.2d 62 (1972).) In People v. Iverson, 9 Ill.App.3d 706, 708 (1973), the identical charge was given as part of the original series of instructions. We there held that to find such giving reversible error would require a determination, based upon all of the facts, that the charge coerced or interfered with the jury’s deliberations. The time of submitting such instruction is only one factor to be considered. We there agreed with those authorities which have held that giving such instruction at the outset tends to minimize its coercive effect. Therefore, we hold that the giving of an Allen charge at the commencement of jury deliberations did not, in and of itself, constitute reversible error.

While the defendant has not raised the issue of guilt beyond a reasonable doubt we nevertheless reviewed the evidence to determine if the giving of the instruction at the outset could have had a coercive effect upon the jury. Our review disclosed that the case is not a close one. On the contrary, we found the evidence substantially proved the defendant guilty beyond a reasonable doubt. Therefore, in disposing of this point, we adopt the language contained in Iverson at p. 710:

“The length of the deliberation does not indicate that the jury was deadlocked or that the instruction had a coercive effect. The giving of the instruction as a part of the original series would appear in the circumstances of this case sufficiently to have minimized any coercive effect, * *

While the appeal was pending, the defendant moved for a reduction of sentence under provisions of the Criminal Code and the Unified Code of Corrections. (See Ill. Rev. Stat., 1972 Supp., ch. 38, secs. 8 — 4 (c) (3), 1005 — 8—1(b)(4)—(c) (4) and 1008 — 2—4.) Under both the former and present code, sentences of imprisonment for felonies are indeterminate. At the time the court sentenced defendant, the penalty for attempt armed robbery was a fine, imprisonment or both. In event of imprisonment, no minimum sentence was provided but the maximum sentence was not to exceed 14 years. (Ill. Rev. Stat. 1971, ch. 38, sec. 8 — 4(c)(2).) The code has since been changed. The penalty for the same offense now appears under the category of a Class 3 felony (Ill. Rev. Stat, 1972 Supp., ch.38, sec. 8 — 4(c) (3)), the maximum penalty set as “any term in excess of one year not exceeding 10 years” (Ill. Rev. Stat, 1972 Supp., ch. 38, sec. 1005 — 8—1(b)(4) ), and tire minimum, “1 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 term set in that case by the court” (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005 — 8—1(c)(4)).

Defendant’s motion alleges that his case has not reached final adjudication, that section 8 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat, 1972 Supp., ch. 38, sec. 1008 — 2—4) applies, that the new code should prevail on the issue of his excessive sentence and that, under that code, his sentence should be reduced to a period of 1 to 3 years.

Section 8 — 2—4 applies only if the sentence under the new code is “less than under the prior law upon which the prosecution was commenced.” Where confinement is ordered the present law demands a minimum of 1 year, whereas the prior law did not establish a minimum. The prior law allowed a maximum of 14 years, the present law a maximum of 10 years, but the maximum sentence imposed upon defendant is less than that presently allowed. We conclude that section 8 — 2—á is not applicable in that the sentence imposed herein is not less than that allowed under the prior law. Neither do we find the sentence in conflict with the minimum-maximum ratio established under the code. The motion is therefore denied.

For the reasons stated, the judgment in all respects is affirmed.

Judgment affirmed.

GUILD, P. J., and SEIDENFELD, J., concur..

       At this arraignment, the defendant was charged under two indictments, one for armed robbery, the other for attempt armed robbery (the .former is not found in the record). Where possible, we will confine our remarks to the crime for which the defendant was convicted.

       The motion found in the record was directed toward the armed robbery indictment but bore the file number of the attempt charge, as did the order disposing of the motion. We here consider the motion as being directed to the attempt charge.

       The record does not disclose the time the jury retired, but the State’s brief informs us that it commenced deliberating at 4:50 P.M. on the date of trial but took time out for dinner.