author: Mr. JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY HAMILTON et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 79-2281, 79-2282 cons.
    Opinion filed October 5,1981.

      James J. Doherty, Public Defender, of Chicago, and Larry Hamilton, pro se (James H. Reddy, Assistant Public Defender, of counsel), for appellant Larry Hamilton.
    Ralph Ruebner, of State Appellate Defender’s Office, of Chicago, and Theodore A. Gottfried, of State Appellate Defender’s Office, of Springfield, for appellant Willie Robinson.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Adrienne Noble Nacev, and Mark A. Graf, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

In a jury trial, defendants Larry Hamilton and Willie Robinson were found guilty of murder, attempt murder and attempt aggravated kidnapping. Hamilton was sentenced to terms of 1250 to 2500 years for the murder conviction, 75 to 150 years for attempt murder and 5 to 15 years for the attempt aggravated kidnapping. Robinson was sentenced to terms of 500 to 1000 years, 150 to 300 years and 6 2/3 to 20 years respectively for the crimes. The sentences were ordered to run concurrently.

Both defendants appeal. Hamilton contends (1) the jury was improperly selected in that it was a conviction-prone Witherspoon jury; (2) his convictions for attempt murder and attempt aggravated kidnapping should be reversed because he was not proved accountable beyond a reasonable doubt for Robinson’s actions; and (3) the sentence of 1250 to 2500 years for murder is excessive. Robinson contends (1) he was not proved guilty of murder beyond a reasonable doubt; (2) certain cross-examination and closing arguments by the prosecution were prejudicial; (3) the use of a prior drug conviction for impeachment purposes was improperly allowed by the trial court; (4) the trial court improperly refused to give instructions to the jury on voluntary manslaughter; and (5) the sentences of 500 to 1000 years for murder and 150 to 300 years for attempt murder are excessive and ignore the potential for rehabilitation.

The following testimony was adduced at trial:

On January 19, 1978, at approximately 2:30 a.m., Mark Furman and his wife, Claudia, were driving home on the Calumet Expressway near 146th Street. An accident occurred in which a car driven by Larry Hamilton struck the Furman car from behind. Both cars pulled off to the side of the road. The drivers of both cars got out and inspected the damage to their respective cars.

Hamilton and Furman had a conversation at the rear of the Furman car. Defendant Robinson testified that this conversation was with loud words and hand gesturing, but he did not know what they were saying. Mrs. Furman testified that neither her husband nor the other man, whom she later identified as Hamilton, raised their voices.

Both men then returned to their cars. Hamilton and Robinson got out of their car and walked back toward the Furman car. Hamilton was on the driver’s side and Robinson on the passenger’s side. Mark Furman joined the two and walked to the back of the car with Hamilton, while Robinson stayed towards the middle of the car. After a short conversation, Furman rejoined his wife in the car.

At this point, Hamilton stopped near the driver’s side near the door. Mrs. Furman testified that she saw flashes and heard four or five shots from the driver’s side. At the same time, she saw flashes from the passenger’s side, hearing two or three shots. Robinson testified he was next to the Furman car when he saw flashes and the passenger window break. He pulled his gun and fired two shots into the car. He said he fired towards where the flashes came from.

Robinson testified he hit a woman in the head, trying to push her back so he could get away. Mrs. Furman stated that immediately after the shooting the man on her side of the car, Robinson, grabbed her and said, “You are coming with us.” A short conversation followed. She then heard the man say, “I have to take care of this bitch” and she was beaten unconscious with a hard object.

Hamilton and Robinson then fled the scene and drove to the home of Hamilton’s wife. From there they proceeded to burn the car they had been driving and which was involved in the accident.

Marcea Holman was a passenger with Hamilton and Robinson at the time of the incident. She testified that she stayed in the car throughout the incident and that as defendants were leaving the car before the shooting she recognized an automatic pistol in Hamilton’s hand. She did not see Robinson with a gun at that time, but she identified a gun at trial as being in Robinson’s possession.

She testified that upon leaving the car the defendants said to each other, “Are you thinking the same thing as I am?” When she heard gunshots she slumped down in the car seat. After the shooting she heard a woman scream, “You might as well kill me since you killed my husband.” She stated Hamilton and Robinson returned to the car and they went to a house.

During cross-examination, she admitted to originally telling the police that she and the defendants had been at the house all day. On redirect examination, she said she had changed her story because she was afraid of being found to be a participant in the shooting. Robinson testified that Marcea Holman was high on drugs and had been nodding off before the accident and during the shooting.

Ballistics evidence indicated that all of the bullets which entered the victim’s body were from the automatic pistol. Testimony from the medical examiner revealed that there were three bullet entrance wounds on the left side of the victim’s body and two on the right side. Police investigators found plastic pieces which appeared to come from a pistol grip. A serial number on one of these pieces was identified and matched with the number of a Colt revolver introduced by the State as an exhibit.

The jury found both defendants guilty of murder, attempt murder and attempt aggravated kidnapping. They were found not guilty of attempt armed robbery. After a hearing in aggravation and mitigation, the trial court sentenced both defendants under the law in effect at the time of the offense.

Defendant Hamilton argues that he was denied a trial by a representative and impartial jury because prospective jurors who expressed opposition to the death penalty were excused from duty. He contends that the jury was “death-qualified” and therefore “conviction prone.” Hamilton also advanced an equal protection argument in that a legally cognizable group was systematically excluded from jury duty. Hernandez v. Texas (1954), 347 U.S. 475, 98 L. Ed. 886, 74 S. Ct. 667.

Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, is cited by Hamilton as authority for his position that the jury was “death-qualified.” Witherspoon held that a death sentence could not be constitutionally carried out if the jury that imposed it was selected by excluding for cause those prospective jurors who stated general objections to the death penalty or expressed conscientious or religious scruples against its imposition. (391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85, 88 S. Ct. 1770, 1777.) This holding is limited to those circumstances in which the death penalty is actually imposed by the jury. Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788.

The Witherspoon court, however, carefully defined when a State could properly exclude a juror for cause, stating in footnote 21 of its opinion:

“We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.” 391 U.S. 510, 522-23, 20 L. Ed. 2d 776, 785 n.21, 88 S. Ct. 1770, 1777 n.21.

A reading of the transcript of the voir dire examination shows that all 27 jurors excluded for cause from jury duty were excluded within the guidelines set forth in Witherspoon. Any juror expressing scruples against the imposition of the death penalty was questioned extensively by the able trial judge. In each instance the prospective juror was questioned as to the effect his or her feelings would have on their decisions during a trial. Most of the jurors so questioned asserted that their beliefs would inhibit their judgment of guilt or innocence.

As defendant Hamilton points out, nine of the excluded jurors indicated that despite their beliefs on capital punishment they would not be prevented from making an impartial decision as to guilt or innocence. However, as were all other excluded jurors, they were asked, “Would you automatically vote against the death penalty regardless of what facts might reveal?” Each juror responded in the affirmative to this query. We hold that there was no violation of Witherspoon and the jurors were properly excused for cause. See Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954; Spinkellink v. Wainwright (5th Cir. 1978), 578 F.2d 582, cert. denied (1979), 440 U.S. 976,59 L. Ed. 2d 796, 99 S. Ct. 1548.

Hamilton’s claim that the exclusion of these jurors resulted in a jury which was “conviction prone” is without merit. In advancing this argument, Hamilton concedes that this issue was before the Supreme Court in Witherspoon. There, as here, data in the form of surveys and tests were presented as evidence that “death-qualified” jurors are partial to the prosecution on the issue of guilt or innocence. The court explicitly declined to adopt this line of thinking, saying (391 U.S. 510, 517-18, 20 L. Ed. 2d 782, 88 S. Ct. 1774-75):

“The data adduced by the petitioner, however, are too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt. [Footnote omitted.] We simply cannot conclude, either on the basis of the record now before us or as a matter of judicial notice, that the exclusion of jurors opposed to capital punishment results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction. * 0

Hamilton asserts that considerably more scientific data has become available since Witherspoon which will prove his contention.

The obvious implication to be drawn from the type of argument advanced by Hamilton is that a non-death-qualified jury, a jury which includes the excluded jurors in this case, would be impartial with respect to the question of guilt or innocence. (Spinkellink v. Wainwright.) Defendant cites several studies as support for his position: White, The Constitutional Invalidity of Convictions Imposed by Death-qualified Juries, 58 Cornell L. Rev. 1176 (1973); Boehm, Mr. Prejudice, Ms. Sympathy, and the Authoritarian Personality: An Application of Psychological Measuring Techniques to the Problem of Jury Bias, 1968 Wis. L. Rev. 734; Goldberg, Toward Expansion of Witherspoon: Capital Scruples, Jury Bias and the Use of Psychological Data to Raise Legal Presumptions, 5 Harv. Civil Rights-Civil Liberties L. Rev. 53 (1970); Bronson, On the Conviction Proneness and Representativeness of the Death-qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1 (1970); Jurow, New Data on the Effect of a “Death-qualified” Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971).

In People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363, the Illinois Supreme Court was confronted with the same Witherspoon problem that is now before us. At that time the court, relying on Witherspoon, held there was not yet sufficient factual basis to hold that jurors without scruples concerning capital punishment are biased in favor of the prosecution. (52 Ill. 2d 374, 393.) This position was again reaffirmed without further analysis in People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537.

The Bronson, Jurow and Boehm studies were most recently called to the attention of our supreme court in People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233. However, because of the nature of the issues there the court did not pass upon the validity of those studies. See also People v. Smith (1980), 91 Ill. App. 3d 438, 414 N.E.2d 1281.

At most, the studies before us show only a pattern of correlation between a juror’s attitude toward the death penalty and his attitude toward conviction in a particular trial. (See United States ex rel. Clark v. Fike (7th Cir. 1976), 538 F.2d 750, cert, denied (1977), 429 U.S. 1064, 50 L. Ed. 2d 781, 97 S. Ct. 791.) These studies have been found to contain insufficient data to dispel the “fragmentary and tentative” nature of the empirical evidence. (United States ex rel. Townsend v. Twomey (7th Cir. 1972), 452 F.2d 350; Craig v. Wyse (D. Colo. 1974), 373 F. Supp. 1008; United States ex rel. Clark v. Fike; People v. Murphy (1972), 8 Cal. 3d 349, 503 P.2d 594, 105 Cal. Rptr. 138.) We, too, cannot say that defendant was denied a fair trial because of the exclusion of jurors who had scruples against capital punishment.

Defendant Hamilton also advances an equal protection argument, stating that the excluded jurors are a legally cognizable group. This contention has primarily been considered where there has been systematic exclusion of a “distinct class” from jury duty based upon race or sex. (See Hernandez v. Texas (1954), 347 U.S. 475, 98 L. Ed. 866, 74 S. Ct. 667; Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692.) The group of excluded jurors presented here cannot be considered a “distinct class” meriting equal protection status under the Fourteenth Amendment. Cf. Witherspoon, where it is noted that a jury must “express the conscience of the community on the ultimate question of life or death.” 391 U.S. 510, 519, 20 L. Ed. 2d 783, 88 S. Ct. 1775.

Finally, Hamilton asserts that his constitutional right to be tried by a representative cross-section of the community has been violated. The analysis of this argument differs from the equal protection argument discussed above. (Duren v. Missouri (1979), 439 U.S. 357, 368, 58 L. Ed. 2d 579, 589 n.26, 99 S. Ct. 664, 670 n.26; cf. dissenting opinion of Mr. Justice Rehnquist, 439 U.S. 357, 370, 58 L. Ed. 2d 579, 591, 99 S. Ct. 664, 672.) In order to establish a prima facie violation of the sixth amendment fair-cross-section requirement, a defendant must show (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury selection process. (Duren v. Missouri (1979), 439 U.S. 357, 364, 58 L. Ed. 2d 579, 587, 99 S. Ct. 664, 668.) However, the “[sjtates remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community.” Taylor v. Louisiana (1975), 419 U.S. 522, 538, 42 L. Ed. 2d 690, 702, 95 S. Ct. 692, 701; Duren v. Missouri (1979), 439 U.S. 357, 367,58 L. Ed. 2d 579, 589, 99 S. Ct. 664, 670.

Assuming that the above stated criteria are met, we feel that exclusion of the jurors who would automatically vote against the death penalty regardless of the evidence is proper. The right to a trial by jury means a “fair trial by a panel of impartial, ‘indifferent’ jurors.” (Irvin v. Dowd (1961), 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755, 81 S. Ct. 1639,1642.) Impartiality requires not only freedom from bias against the accused and for the prosecution, but also freedom from bias for the accused and against the prosecution. Hayes v. Missouri (1887), 120 U.S. 68, 30 L. Ed. 578, 7 S. Ct. 350; Spinkellink v. Wainwright.

The voir dire of the jurors excluded in this case shows that they could not be impartial during the sentencing stage of the trial. It should also be noted that several jurors who expressed an automatic bias against defendant were also excluded for cause. The jurors actually selected, on the other hand, stated they could be impartial at all stages of the trial. Being not opposed to capital punishment is not synonymous with favoring it. Turberville v. United States (D. C. Cir.. 1962), 303 F.2d 411, cert, denied (1962), 370 U.S. 946, 8 L. Ed. 2d 813, 82 S. Ct. 1607.

The jury so constituted was impartial and did not violate the representative cross-section requirement of the sixth and fourteenth amendments.

Hamilton further argues that his convictions for attempt murder and attempt aggravated kidnapping should be reversed because he was not accountable for Robinson’s actions. We disagree.

The Criminal Code of 1961 provides:

“A person is legally accountable for the conduct of another when:
O # #
(c) Either before or during the commission of an offense * * * he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2.

Hamilton maintains that he cannot be held accountable for Robinson’s spontaneous and independent actions and that his mere presence and knowledge of those actions is insufficient to prove accountability. He relies on the following cases: People v. Sakalas (1980), 85 Ill. App. 3d 59, 405 N.E.2d 1121; People v. Bowman (1971), 132 Ill. App. 2d 744, 270 N.E.2d 285; and People v. Washington (1970), 121 Ill. App. 2d 174, 257 N.E.2d 190.

In Sakalas two defendants beat up a bus driver. When leaving the scene, one of the assailants took the driver’s badge. The court held that the other assailant could not be held accountable on an armed robbery charge where there was no evidence that he was actually present and may have already left. In Bowman, the defendant was present while a battery took place. However, the victim could not make a positive identification of the defendant so as to hold him accountable for the crime. Once again, in Washington a defendant was present while the victim was raped by a group of boys. The victim could not accurately identify defendant as one of her attackers. Thus, the court held the theory of the defendant’s accountability for the group was not supported by the evidence.

More on point are those cases which deal with the common design or common purpose rule. (See People v. Armstrong (1968), 41 Ill. 2d 390, 243 N.E.2d 825, cert. denied (1969), 394 U.S. 992, 22 L. Ed. 2d 768, 89 S. Ct. 1483; People v. Rybka (1959), 16 Ill. 2d 394, 158 N.E.2d 17.) Where one attaches himself to a group bent on illegal acts which are dangerous or homicidal in character, or which will probably or necessarily require the use of force and violence that could result in the taking of life unlawfully, he becomes criminally liable for any wrongdoing committed by other members of the group in furtherance of the common purpose, or as a natural or probable consequence thereof, even though he did not actively participate in the overt act itself. People v. Hughes (1962), 26 Ill. 2d 114, 185 N.E.2d 834; People v. Bell (1981), 96 Ill. App. 3d 857, 421 N.E.2d 1351.

Proof of a common purpose need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by the group. (People v. Richardson (1965), 32 Ill. 2d 472, 207 N.E.2d 478, cert. denied (1966), 384 U.S. 1021, 16 L. Ed. 2d 1023, 86 S. Ct. 1935; People v. Iones (1973), 11 Ill. App. 3d 450, 297 N.E.2d 178.) Also, it is no defense that the criminal acts were not committed pursuant to a preconceived plan where the evidence indicates involvement on the part of the accused in the spontaneous acts of the group. People v. Richardson.

The evidence shows that there was more than mere presence on the part of Hamilton at the scene of the incident. Hamilton was closely associated with Robinson before and after as well as at the time the crimes were committed. Mrs. Furman testified that there were simultaneous gunshots from both sides of the car. Immediately after this occurrence, Robinson reached into the car, grabbed Mrs. Furman and said, “You are coming with us.” She also testified that both defendants then had a conversation, after which Robinson proceeded to beat her with a hard object. Testimony of various police officers revealed that plastic pieces of a pistol grip were found in the car.

Marcea Holman, a passenger in defendants’ car, testified that when defendants got out of the car Hamilton said to Robinson, “Are you thinking the same thing as I am?” She also stated that she saw a gun in Hamilton’s hands.

The evidence in this case is of such a nature that the jury was justified in finding that Hamilton was accountable beyond a reasonable doubt for the attempt murder and attempt aggravated kidnapping of Mrs. Furman. The determination of the jury will not be set aside unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. (People v. McClindon (1973), 54 Ill. 2d 546, 301 N.E.2d 290, cert, denied (1974), 415 U.S. 992, 39 L. Ed. 2d 889, 94 S. Ct. 1593, and 416 U.S. 958 (1974), 40 L. Ed. 2d 308, 94 S. Ct. 1973; People v. Anderson (1971), 48 Ill. 2d 488, 272 N.E.2d 18.) We find that the evidence was not of that character.

Likewise, defendant Robinson argues he is not guilty of murder beyond a reasonable doubt and cannot be convicted on the theory of accountability. We disagree. Because of the above analysis and further evidence adduced at trial, we believe Robinson’s murder conviction was proper.

Robinson’s own testimony revealed he fired shots into the Furman car. After that, he proceeded to beat Mrs. Furman with a pistol. He also testified to the joint attempt made with Hamilton to destroy the car they were driving and to fabricate a story for an alibi. The record reflects sufficient evidence for the jury to find that Robinson acted with Hamilton to further a common purpose, the murder of Mark Furman. The jury’s verdict will not be set aside absent such improbability as to raise a reasonable doubt of guilt. (People v. McClindon; People v. Anderson.) There is no such improbability here.

Robinson contends it was error for the trial court to deny his motion to bar the use of prior drug convictions for impeachment purposes. It is urged that the offenses (Federal drug convictions for unlawful possession of heroin with intent to distribute and conspiracy to distribute heroin) are not indicative of a capacity for veracity. It is also argued that the use of the convictions unfairly prejudiced defendant.

We do not doubt the use of a prior conviction to impeach a witness can have a prejudicial effect on the trier of fact. (See People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) In Montgomery, the court adopted a general standard by which the credibility of a witness may be impeached. A prior conviction may be used for impeachment purposes if the crime (1) was punishable by death or imprisonment in excess of one year or (2) involved a dishonest or a false statement regardless of the punishment, unless (3) in either case the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. 47 Ill. 2d 510, 516.

The decision to allow a prior conviction to impeach a witness rests in the sound discretion of the trial court. (People v. Washington (1973), 55 Ill. 2d 521, 304 N.E.2d 276.) It has been held that the offense of possession of heroin indicates a disposition to place the advancement of individual self-interest ahead of principle or the interest of society and, as such, would suggest a willingness to do so again on the witness stand. (People v. Nelson (1975), 31 Ill. App. 3d 934, 335 N.E.2d 79; People v. Daily (1979), 79 Ill. App. 3d 928, 398 N.E.2d 923.) Moreover, the Federal offenses of which defendant was convicted carry sentences of imprisonment for up to 15 years. 21 U.S.C. 841(b)(1) (1976).

In weighing the probative value of receiving the defendant’s testimony versus the risk of unfair prejudice, the court must consider the nature of the crime, the nearness or remoteness in time of the conviction to the trial, the subsequent career of defendant and the similarities of the crimes. (People v. Montgomery; People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563.) Considering these factors, it is important to note that Robinson’s Federal convictions had taken place only 17 months prior to this incident. He was released on an appeal bond when the incident occurred. Defendant was not unfairly prejudiced by the admission of his prior convictions. The trial judge did not abuse his discretion in this regard.

Defendant Robinson further contends he was unfairly prejudiced by the improper cross-examination and closing arguments of the prosecutor. Prejudice is claimed in two instances of cross-examination. These occurred when the prosecution questioned defendant about his arrest record and also when defendant was questioned about an alleged gun switch during the shooting incident. We find no prejudicial error in either line of questioning by the State.

On direct examination, defendant testified that he had been convicted of a crime once in his life. During cross-examination, defendant was asked if there had been any other criminal convictions. This line of questioning involved such details as the charge, the date of conviction and the name of the sentencing judge. Defendant denied any other prior convictions. Throughout this particular cross-examination no objection was made.

It is true, as defendant points out, that there can be no more damaging question to a defendant than one which suggests he is a criminal. (See People v. Flynn (1956), 8 Ill. 2d 116, 133 N.E.2d 257.) Defendant argues that the questioning about an unlawful use of weapons conviction does not come within the Montgomery rule. We note, however, where a defendant makes an affirmative statement as to the completeness of his prior convictions, he may be cross-examined regarding any other convictions regardless of whether they would otherwise have been admissible. People v. Kellas (1979), 72 Ill. App. 3d 445, 389 N.E.2d 1382; People v. Brown (1978), 61 Ill. App. 3d 180, 377 N.E.2d 1201; People v. Nastasio (1963), 30 Ill. 2d 51, 195 N.E.2d 144.

Robinson also argues that the prosecution’s questions regarding a possible gun switch during the incident were improper and require reversal. (People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353.) The record shows that gunshots from the same gun entered the victim’s body from both the left and right. There also was testimony by Marcea Holman to the effect that Hamilton had an automatic pistol in his hand before the shooting and that afterwards he had a revolver in his hand. The State argues that the questions were exploratory and were related to matters solely in Robinson’s knowledge.

A review of the record reveals that the complained-of cross-examination consisted of only three questions to the defendant. In People v. Nuccio, the State’s conduct consisted of a pattern of unsupported insinuations as to two defense witnesses, including the defendant. Here, we find that the line of questioning by the State was proper and supported by physical evidence and previous testimony.

Robinson also complains that the prosecution made improper remarks in the closing arguments. These relate, again, to statements concerning the State’s theory of a gun switch by the two defendants. He argues there is no evidence to support the State’s theory, especially when he denied ever having fired the automatic pistol. Closing argument must be based on facts in evidence or upon reasonable inferences which can be drawn from these facts. (People v. Vasquez (1972), 8 Ill. App. 3d 679, 291 N.E.2d 5; PeophrorWatson (1981), 94 Ill. App. 3d 550, 418 N.E.2d 1015.) We feel that there is evidence to support the State’s argument and it was not improper to comment on their theory.

Hamilton also contends it was error to refuse his tendered instruction on voluntary manslaughter. (See People v. Bratcher (1976), 63 Ill. 2d 534, 349 N.E.2d 31; People v. Bembroy (1972), 4 Ill. App. 3d 522, 281 N.E.2d 389.) This claim is made by defendant apparently with the assertion that his actions were solely those of self-defense. The general rule is that if there is evidence in the record which, if believed, would reduce the crime to manslaughter, an instruction defining that crime should be given. (People v. Joyner (1972), 50 Ill. 2d 302, 278 N.E.2d 756.) However, it is equally well settled that such an instruction should not be given if the evidence clearly demonstrates that the crime was murder and there is no evidence to support a conviction of manslaughter. People v. Handley (1972), 51 Ill. 2d 229, 282 N.E.2d 131, cert. denied (1972), 409 U.S. 914, 34 L. Ed. 2d 175, 93 S. Ct. 247; People v. Latimer (1966), 35 Ill. 2d 178, 220 N.E.2d 314.

The relevant portion of the voluntary manslaughter statute provides that “[a] person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b).) Voluntary manslaughter therefore is not established where the defenses of article 7, by their own terms, history and purpose, are inapplicable. People v. Gleckler (1980), 82 Ill. 2d 145, 411 N.E.2d 849.

The only basis for the instruction requested by defendant would have to be that the victim acted in such a way as to put defendant in such a position that he believed deadly force was necessary to prevent imminent death or great bodily harm to himself. (See Ill. Rev. Stat. 1979, ch. 38, par. 7 — 1.) We do not view the record in this case as being sufficient to support defendant’s argument. It is clear from the testimony of the witnesses that the victim was sitting in his car and was in no way making himself a threat to either defendant. We also note that when the shooting began, Robinson fired his pistol and then pistol-whipped Mrs. Furman after a short conversation with his partner, Hamilton.

The testimony upon which Robinson relies is not, even if believed, evidence from which the jury could find that the lesser-included offense of voluntary manslaughter was committed rather than murder. (People v. Arnold (1974), 17 Ill. App. 3d 1043, 309 N.E.2d 89.) We concur with the trial court’s decision refusing to give the tendered manslaughter instructions.

Lastly, both defendants argue that their respective sentences for murder are excessive. Robinson also argues that his sentence for attempt murder is excessive and that the sentences ignore his potential for rehabilitation.

The imposition of a sentence is a matter of judicial discretion and, absent any abuse of that discretion by the trial court, a sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The sentencing statute for murder permits a more severe minimum sentence upon consideration of the offense and the history and character of the defendant. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1).) The sentences imposed upon the defendants here are within the limits prescribed by the legislature. Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b); see People v. Soto (1975), 35 Ill. App. 3d 166, 341 N.E.2d 107 (sentence of 100 to 300 years for murder); People v. Larsen (1977), 47 Ill. App. 3d 9, 361 N.E.2d 713 (sentence of 100 to 300 years for murder).

The trial judge held a hearing in aggravation and mitigation. The record reveals that the past record, family situation and personal traits of each defendant were before the trial judge for his consideration. At the time of the incident, defendant Hamilton was on parole. He had been convicted for aggravated battery and attempt murder. Defendant Robinson had been convicted of Federal drug violations at that time. He also had been convicted for an unlawful use of weapons charge in 1976. The trial judge was in the best position to evaluate the likelihood of Robinson’s rehabilitation. At the time of the sentencing, the trial judge described the crime as “brutal and senseless.” We cannot say, nor have the defendants shown, that the trial court abused its discretion.

Defendant Hamilton also filed a pro se brief. In it he raises several issues, one of which was the Witherspoon jury issue considered above. Two other issues are addressed in the brief. First, Hamilton contends the trial court erred in not granting his motion to quash the arrest and suppress the evidence found during an illegal search. Defendant’s arrest occurred at his wife’s house shortly after the incident. State Trooper Underwood, along with Lieutenant Hughes of the Harvey Police Department, were the arresting officers. A review of the record shows that the arresting officers had sufficient information for probable cause to exist. Mrs. Furman had supplied a description of her attackers to investigating officers. She also had written down the license number of the car involved in the accident. This car was found engulfed in flames in Harvey, Illinois, shortly after it was reported to be stolen. An investigation of the license number led the officers to the address where Maria Hamilton resided. She was the registered owner of the car. Upon arriving at the address, Trooper Underwood found two men, the defendants, who fit the descriptions given by Mrs. Furman. After defendants were taken into custody, a search warrant for the premises was issued based on this information. We find that it, too, was properly issued.

Secondly, defendant Hamilton contends that the trial court abused its discretion in not polling the jury concerning several newspaper and other media accounts of the shooting incident. The record does not contain any of the articles complained of. It appears that nothing was presented to the trial court with the exception of defendant Robinson’s motion for a change of trial site. This motion alleged that a fair and impartial jury would be unattainable because of the local publicity of the incident. It was not accompanied with any articles or abstracts of media accounts of the incident.

The question of whether a jury should be interrogated with respect to media publicity surrounding a crime rests in the exercise of the sound discretion of the trial judge. (People v. Heller (1971), 131 Ill. App. 2d 799, 267 N.E.2d 685.) The failure of defendant to produce the articles in question effectively precludes this court from determining that the trial judge improperly exercised his discretion. We must assume that the court ruled properly. (People v. Heller (1971), 131 Ill. App. 2d 799, 802.) The articles attached to defendant’s pro se brief appeared after the date of sentencing.

The convictions and sentences are affirmed.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HARRISON

license: Public Domain

text:
    RALPH VonBOKEL, Plaintiff-Appellant, v. THE CITY OF BREESE, Defendant-Appellee.
    Fifth District
    No. 80-604
    Opinion filed September 29, 1981.

      William J. Becker, of Bruegge & Becker, of Breese, for appellant.
    Harold H. Pennock, Jr., of Hodson & Pennock, Ltd., of Centraba, for appellee.
   Mr. JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff Ralph VonBokel appeals from a November 1980 order dismissing his amended complaint with prejudice. VonBokel, challenging the validity of the Breese Zoning Ordinance, filed a three-count complaint alleging improper amendment of the ordinance, improper publication, and equitable estoppel. He requested a declaration that the ordinance was null and void, and he sought to enjoin the municipality from refusing his application for a certificate of initial zoning compliance. He also asked for money damages. Although never denominated as such, defendant responded by filing what appears to be a section 48 motion to dismiss, which the trial court granted. (Ill. Rev. Stat. 1979, ch. 110, par. 48.) The issue raised on appeal is whether the amended complaint stated-arcause of action. We hold that it did not and, therefore, affirm the judgment of the trial court.

VonBokel first contends that the trial court erred in dismissing count I of the amended complaint. In count I, he attacked the Breese Zoning Ordinance on the grounds that the provision which set the effective date of passage of the ordinance had been amended contrary to the rules provided in article 9, section 9 — 4, of that same ordinance and contrary to the rules contained in the Illinois Municipal Code, section 11 — 13—14 (Ill. Rev. Stat. 1979, ch. 24, par. 11 — 13—14).

The zoning ordinance which VonBokel seeks to invalidate was in the planning and drafting stages since 1977. At that time, a commission was appointed and public hearings conducted. On January 16, 1979, the Breese City Council met and adopted the final draft of the proposed ordinance. The minutes of the January 16 meeting show that, after a roll-call vote carrying the motion to adopt, the city council answered various questions pertaining to the ordinance and then, on a motion by one of the aldermen, decided to change the date upon which the new ordinance would take effect. By a unanimous vote, the ordinance was made effective 10 days from the date of passage, rather than 30 days from the date of passage as had originally been provided. Because the ordinance was effective 20 days sooner, the city council was subsequently able to rely on a minimum lot size requirement contained therein as a basis for rejecting plaintiff’s application for zoning compliance.

VonBokel maintains that the correct procedure for changing the effective date, as for making any type of amendment to the ordinance, is set forth in section 9 — 4 and involves submission of a formal motion to amend followed by notice to the public, preliminary hearings, and a report by the Zoning Board of Appeals. He claims that defendant’s failure to follow this procedure renders the amended portion void.

Plaintiff reads section 9 — 4 too broadly. The city council’s action changing the effective date of the ordinance was not the type of amendment contemplated by the drafters of section 9 — 4. The procedures contained in that provision apply only to substantive amendments made after a zoning ordinance has been finally approved. In this case, the ordinance was not “finally” approved until adjournment of the January 16 meeting, and the revision sought was minor. (See City of Kankakee v. Small (1925), 317 Ill. 55, 63-64, 147 N.E. 404.) We will not, therefore, impose the rigorous formalities of séction 9 — 4 on a situation where a minor change in an ordinance was suggested during the same meeting as the vote to adopt the ordinance, and where no significant time lapsed, between the original vote and the suggestion to amend, during which the matter could be said to have officially terminated. People ex rel. MacMahon v. Davis (1918), 284 Ill. 439, 448-49, 120 N.E. 326.

Since we are not bound by the construction or application of a statute which distorts its intent and purpose (Aurora National Bank v. City of Aurora (1980), 82 Ill. App. 3d 72, 76, 402 N.E.2d 365), plaintiff’s first count was properly dismissed for failure to state a cause of action.

Plaintiff next contends that the trial court erred in dismissing count II, which alleged improper publication of the ordinance. The published document read in pertinent part:

“This ordinance shall take effect thirty (10) days after its final passage, approval and publication as provided by law. (See Ill. Rev. Stat. ch. 24, §1 — 2—4).”

Plaintiff claims that the failure of the council to correct the printing error (“thirty (10)”) by republication violates the Illinois Municipal Code, section 1 — 2—4, which provides that improper publication of any ordinance imposing fines or penalties must be corrected by “reprinting that portion of the ordinance which was in error ° * within 30 days after passage is validated. ” ° Ill. Rev. Stat. 1979, ch. 24, par. 1 — 2—4.

The Breese Zoning Ordinance does subject violators to a fine (art. 8, §8 — 7), and thus, technically, its improper publication would trigger the reprinting rule in section 1 — 2—4. The defendant, however, argues that the printing error in this case does not warrant republication because the error did not affect the substance of the ordinance. This argument is well taken. In the past, when the date of passage of an ordinance has been incorrectly represented in records or documents, the court invariably treated the discrepancy as inconsequential. (See City of Nokomis v. Warsing (1920), 295 Ill. 414, 416, 129 N.E. 71.) In fact, the court has refused to invalidate ordinances in which the deliberating body incorrectly set the effective date of passage, stating that such an error does not affect the validity of the ordinance or defeat its main purpose. Illinois Central R.R. Co. v. People ex rel. Alexander (1896), 161 Ill. 244, 246, 43 N.E. 1107; Ketchmark v. Lynch (1969), 107 Ill. App. 2d 36, 42-43, 246 N.E.2d 133.

Zoning ordinances are presumed valid. (City of Rockford v. Suski (1980), 90 Ill. App. 3d 681, 684, 413 N.E.2d 527.) Their promulgation and passage lies within the province of the local governing body. Consequently, courts will not interfere unless it can be shown that a municipality has performed arbitrarily, capriciously, or in a manner unrelated to the public’s health, safety, and morals. (City of Champaign v. Kroger Co. (1980), 88 Ill. App. 3d 498, 503, 410 N.E.2d 661.) Plaintiff did not demonstrate this in his amended complaint. As defendant pointed out, the printing error was minor and did not affect the ordinance substantively. Thus, the second contention of error necessarily fails.

VonBokel’s final argument is that the trial court erred in dismissing count III of the amended complaint in which he invoked the doctrine of equitable estoppel. In the complaint, plaintiff maintained that he relied on the actions of the Breese City Council and the Breese Zoning Commission, and was induced to expend money because of their conduct. He stated that, at certain public hearings and city council meetings during 1978, the zoning commission advised those present that the effective date of the ordinance would be 30 days from passage. He further alleges that, in reliance upon these representations, he began to develop plans for a subdivision in an area commonly known as “Bokel’s Subdivision.” In September of 1978, he hired a land surveyor to plat the subdivision and perform other related tasks. The surveyor prepared several plats for approval by the county board, the final one being presented at a board meeting in January, prior to the January 16 Breese City Council meeting. At the board meeting, certain officials indicated they would definitely approve the plat if VonBokel would revise it to permit access to several of the lots in the subdivision. VonBokel claims the officials made this assurance because they, too, relied on the new ordinance’s not taking effect until 30 days from passage (i.e., February 16).

Thereafter, VonBokel completed the necessary revisions and submitted the plat to the county board. It was approved at the February 13 meeting. On the same day, he recorded all the subdivision’s deeds at the county recorder’s office. Prior thereto, the new Breese ordinance was passed. It zoned VonBokel’s subdivision for agricultural use only, and contained a minimum three-acre lot size requirement which VonBokel’s properties did not meet. The city council then denied VonBokel’s request for a certificate of zoning compliance, stating that his lots failed to comply with the three-acre requirement. Next, he submitted an application for variance of lot size under section 7 — 2, which creates an exception for those property owners whose deeds were recorded 30 days prior to enactment of the new ordinance. The city council denied this application as well, since his deeds were not recorded until February 13 and the ordinance was enacted on January 16.

VonBokel, claiming to have spent money for engineering, surveying, legal fees, and other costs incidental to the development of the proposed subdivision, contends that the municipality should be equitably estopped from denying his applications for zoning compliance and lot variance because of its acts inducing him to make the expenditures.

Where governing bodies are concerned, estoppel can only be invoked under extraordinary circumstances. Before estoppel can be found, the party seeking it must show that (1) there occurred an affirmative act on the part of the municipality and that (2) the affirmative act induced substantial reliance. (County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 12-13, 405 N.E.2d 1376.) Plaintiff has not pleaded facts sufficient to establish either an affirmative act of inducement on the part of the defendant or substantial reliance on his own part. From the allegations, it cannot be said that the City of Breese encouraged plaintiff to develop his subdivision. Nor can defendant be held responsible for assurances allegedly made by officers of the Clinton County Board. County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 13.

In plaintiff’s amended complaint, he stated that he was aware of the zoning commission’s plan to enact a new ordinance. He also stated that he knew about the public hearings concerning the text of the ordinance. Thus, he had the opportunity to, and apparently did, fully apprise himself of the fact that the new ordinance would outlaw the use he sought to make of the property in question. He knew, before the development was platted or recorded, that it did not conform to the proposed lot size requirement in that particular zoning district. In fact, he stated in his complaint that, at the January meeting of the Clinton County Board, he questioned whether he would be able to continue with his proposed development if he did not get his plat approved before the Breese City Council passed its ordinance. Under these circumstances, plaintiff has failed to show inducement or reliance, and thus is not entitled to claim protection under the equitable estoppel doctrine. County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 14; City of Champaign v. Kroger Co. (1980), 88 Ill. App. 3d 498, 512.

Accordingly, since the amended complaint failed in all three counts to allege the necessary facts to state a cause of action, we uphold the trial court’s dismissal.

Affirmed.

KASSERMAN, P. J., and KARNS, J., concur.


author: Mr. PRESIDING JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JEFFREY D. PANKEY, Defendant-Appellee.
    Fifth District
    No. 80-328
    Opinion filed October 8,1981.
    David W. Hauptmann, State’s Attorney, of Harrisburg (Martin N. Ashley and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    John H. Reid, of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

The State appeals from the order of the circuit court of Saline County dismissing an information charging defendant, Jeffrey Pankey, with aggravated battery. The information was dismissed by the court on the grounds that the prosecution was barred under section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4) because defendant formerly had been prosecuted for the same offense. We affirm.

On June 11, 1980, Officer Gary Sadler issued an Rlinois citation and complaint, similar in form to the document commonly referred to as a “traffic ticket.” The complaint was in the name of the People of the State of Illinois, and it charged defendant with committing aggravated battery in violation of section 12 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4). The citation further recited that the offense took place on June 10, 1980, at 11:25 p.m. at the “Denny Residence/RR 2 Hbg.,” and in it defendant was directed to appear before the court on or before July 7,1980. Also printed prominently on the face of the form was: “TO BE CHANGED TO CRIMINAL COMPLAINT.” Defendant was arrested and transported to the Saline County jail.

On the same date, June 11, 1980, defendant appeared in court and pleaded guilty to the offense charged in the citation. Although no transcript was made of that proceeding, the envelope containing the court’s copy of the citation reflects that defendant was fined $50 and ordered to pay $15 court costs. No representative of the State was present when defendant pleaded guilty and was fined.

On June 12, 1980, the State’s Attorney filed an information charging defendant with aggravated battery. The information charged “[t]hat on June 10,1980, in Saline County, Jeffrey D. Pankey committed the offense of AGGRAVATED BATTERY in that the said defendant in committing a Battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12 — 3, without legal justification, knowingly caused great bodily harm to Cathy Denny, in that he struck Cathy Denny in the face with his fist in violation of Paragraph 12 — 4(a), Chapter 38, Rlinois Revised Statutes.” A warrant for defendant’s arrest was also issued June 12,1980.

Defendant moved to dismiss the information filed June 12, aUeging that prosecution was barred by section 3 — 4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4). At the hearing on the motion on June 26,1980, defendant argued that he had pleaded guilty to aggravated battery as charged in the Illinois citation and complaint (cause No. 80-OV-249) and that he had been convicted and fined; therefore, prosecution under the information filed June 12,1980, was barred on the grounds of double jeopardy. The State urged that the city of Harrisburg did not have a city ordinance covering the offense of aggravated battery; that the State’s Attorney, and not a city police officer, is the proper prosecuting officer in Saline County to initiate and try felony prosecutions; that defendant appeared and pleaded guilty without any prosecuting official being present; and, finally, that defendant obtained his conviction through fraud. The trial court took the matter under advisement and on July 7,1980, held that prosecution under the information filed June 12 was barred by section 3 — 4 of the Criminal Code of 1961. The State appeals from that order.

On appeal the State contends that: (1) a guilty plea to a felony charged by an Illinois citation and complaint is a void judgment and a nullity and, consequently, is not a conviction barring subsequent prosecution on the grounds of double jeopardy; (2) a prosecution procured by a defendant, without the knowledge of the State’s Attorney, for the purpose of avoiding the sentence which otherwise might be imposed cannot stand as a bar to subsequent prosecution; (3) a charge which is insufficient to support a conviction because it fails to allege all the necessary elements of the offense cannot bar a subsequent prosecution instituted by a valid charging instrument; and (4) should the order of the trial court be affirmed, the cause should be remanded for resentencing in compliance with section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1).

At the outset we observe that the record does not contain any evidence of fraud on the part of defendant nor does it indicate that defendant procured his own prosecution for the purpose of avoiding the sentence which otherwise might be imposed. Therefore, we reject the State’s contention that section 3 — 4 of the Criminal Code of 1961 was rendered inapplicable for that reason. See Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(d)(2).

The State first contends that the proceedings instituted by the Illinois citation and complaint are a nullity and are void because they were not commenced by indictment or information as required by statute.

Under section 111 — 2(a) of the criminal code “[a]ll prosecutions of felonies shall be by information or by indictment.” (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 2(a).) Further, as specified in section 111 — 2(b) of the code, “[a]ll other prosecutions may be by indictment, information or complaint.” (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 2(b).) In the instant case, the offense charged by the citation and complaint constituted a felony; therefore, according to section 111 — 2(a) of the criminal code, prosecution properly should have been initiated by indictment or information. Section 111 — 2 of the criminal code, however, is ambiguous in that section 111 — 2(f) refers to situations where “the prosecution of a felony is by information or complaint.” (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 2(f).) Any confusion resulting from this ambiguity was resolved by the court in People v. Kleiss (1980), 90 Ill. App. 3d 53, 412 N.E.2d 39, where the court concluded that the commencement of a felony prosecution by a complaint was a nonjurisdictional error. The defendant in Kleiss raised no pretrial objection to the fact that his prosecution for theft of property valued in excess of $150 was initiated by a criminal complaint; however, he filed a motion in arrest of judgment at the conclusion of his trial, contending that the trial court was without jurisdiction since no information or indictment was filed. The court held that it was not the complaint which conferred jurisdiction on the court. According to the Kleiss court, subject matter jurisdiction was derived from constitutional and statutory provisions, and personal jurisdiction was acquired by the defendant’s personal appearance before the court. Therefore, any error in the prosecution of defendant by complaint, rather than by information or indictment, was one of form and not substance. Accordingly, we reject the State’s argument that the use of a complaint as a charging document in a felony matter would render the judgment void.

We also note that the citation and complaint fail to charge all the elements of the offense as required by section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 3(a)(3)), as urged by the State. First, the name of the victim was not alleged, and, second, no specific facts were alleged in support of the charge of aggravated battery. However, the fact that the charging document fails to state an offense does not deprive the circuit court of jurisdiction of the subject matter. (People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456.) As stated by our supreme court in Gilmore:

“The jurisdiction of the circuit courts 600 was not ‘conferred’ by the information or indictment; jurisdiction was conferred by the provisions of section 9 of article VI of the Constitution, which provides that the circuit courts have ‘original jurisdiction of all justiciable matters.’ The circuit courts have jurisdiction in all cases involving offenses which fall within the ambit of section 1 — 5 of the Criminal Code (Ill. Rev. Stat. 1975, ch. 38, par. 1 — 5), * * (63 Ill. 2d 23, 26, 344 N.E.2d 456, 458.)

Section 1 — 5(a) of the code (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 5(a)) provides that a person is subject to prosecution in Illinois “for an offense which he commits * * * by his own conduct “ 0 if:

(1) The offense is committed either wholly or partly within the State, * •

Therefore, we conclude that the judgment of guilty entered upon defendant’s plea of guilty to the charges, instituted by criminal complaint which failed to charge all the elements of the offense, is not a void judgment but at most a voidable one. A voidable judgment may be reversed only when the aggrieved party has perfected a timely appeal. Thus, had the State seen fit to appeal the first proceeding, this court would have had jurisdiction to entertain the appeal and would have been required to reverse defendant’s conviction in such proceeding. However, the State has not seen fit to do so. Instead, it attempts to attack those proceedings collaterally.

The same is true of the remaining issues raised by the State in this appeal. As an example, the State correctly argues that the record in the prior proceeding reflects that defendant appeared before the court and pleaded guilty without the presence or knowledge of the State’s Attorney. By statute the State’s Attorney is charged with commencing and prosecuting “all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for his county, in which the people of the State or county may be concerned.” (Ill. Rev. Stat. 1979, ch. 14, par. 5.) The Illinois citation and complaint in the case at bar specifically denominated the People of the State of Illinois as the plaintiff.

This court has had occasion to address this issue in People v. Lowe (1975), 28 Ill. App. 3d 883, 330 N.E.2d 590, where the defendant had pleaded guilty to the misdemeanor charge of theft of property of a value under $150 without anyone from the State’s Attorney’s office being present. This court, noting that the State’s Attorney was not present in the trial court, stated:

“First we note the absence of the State’s attorney from the proceedings. The State’s attorney is charged with the prosecution of all criminal cases within his jurisdiction. (Ill. Rev. Stat. 1973, ch. 14, par. 5.) He should be present and involved. The judicial branch of government cannot be expected to and should not act beyond its capacity as arbiter of law and fact.” (People v. Lowe, 28 Ill. App. 3d 883, 884, 330 N.E.2d 590, 592.)

We are of the opinion that it was not proper for the trial court to conclude defendant’s proceedings instituted by complaint. This conclusion does not abrogate defendant’s right to appear and plead guilty on or before July 7, 1980. Similarly, it in no way excuses defendant’s obligation to appear in court on or before such date, as specified in the citation and complaint. Defendant properly could have pleaded guilty on June 11, 1980, if the State’s Attorney had been notified of defendant’s intention to plead guilty and given time to prepare. “Adequate time to prepare is essential to assure a fair trial to both the prosecution and the defense. Without sufficient time for preparation, disadvantage and errors are induced which erode the guarantee of a fair trial.” (People v. Millan (1977), 47 Ill. App. 3d 296, 300, 361 N.E.2d 823, 826.) The presence of the State’s Attorney and the defendant before the court ensures that both receive the fair trial to which they are entitled.

Furthermore, although the issue has not been raised by the parties to this appeal, we question the propriety of permitting defendant to plead guilty to a charge that has been prepared, signed and filed by a police officer. As stated by the court in People v. Woollums (1978), 63 Ill. App. 3d 602, 379 N.E.2d 1385:

“While a police officer has a considerable latitude in charging an individual, the ultimate responsibility of filing a charge and prosecuting it lies with the State’s Attorney. (Ill. Rev. Stat. 1973, ch. 14, par. 5.) Thus, the actions of the police officer in the first instance yield to the judgment and discretion of the constitutional officer empowered to take final action.” (63 Ill. App. 3d 602, 608-09, 379 N.E.2d 1385, 1390.)

To authorize a felony to be charged by a police officer and disposed of by the court without the knowledge or presence of the State’s Attorney would be an impermissible intrusion upon the powers delegated to the State’s Attorney. As stated in Woollums, the ultimate decision of the charges to be brought against defendant and presented to the court should be made by the State’s Attorney, not the police officer.

Furthermore, we view as meritorious the State’s final contention that defendant’s sentencing in the proceedings instituted by the filing of the citation and complaint was erroneous for failure of the court to comply with the requirements of section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1). We note that defendant was sentenced for the felony charge without a presentence investigation and report, contrary to the holding in People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416. In this regard, section 5 — 3—1 of the Unified Code of Corrections requires that a written presentence report of investigation be presented to and considered by the court before sentencing for a felony. The court in Youngbey held that these provisions were mandatory and may not be waived by a defendant. This error is compounded in the instant case by the fact that the State’s Attorney was not present and, consequently, was in no position to offer evidence in aggravation of punishment had he desired to do so.

For the reasons stated above, we conclude that the proceedings originated by the filing of the Illinois citation and complaint contained reversible errors which would prevent their use as a bar to the prosecution in the instant case. However, as we previously have stated, notwithstanding such errors, the State has not seen fit to perfect an appeal therefrom. Consequently, this court is without jurisdiction to reverse defendant’s conviction in the first proceedings. Since the proceedings instituted by the filing of the Illinois citation and complaint may not be disturbed, they are a bar to the prosecution in the instant case and the trial court committed no error in dismissing the information.

For the foregoing reasons, the order of the circuit court of Saline County is affirmed.

Affirmed.

KARNS and WELCH, JJ.,- concur.


author: Mr. PRESIDING JUSTICE RIZZI

text:
    EDWARD N. GAY, Plaintiff, v. OPEN KITCHENS, INC., et al., Defendants.—(OPEN KITCHENS, INC., Third-Party Plaintiff-Appellant, v. GULLO INTERNATIONAL, Third-Party Defendant-Appellee.)
    First District (3rd Division)
    Nos. 79-867, 80-087, cons.
    Opinion filed September 30, 1981.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas R. Nelson, and Daniel J. O’Connor, of counsel), for appellant.

      Frank Glazer, Ltd., of Chicago (Frank Glazer and Harry Ray Chiles, Jr., of counsel), for appellee.
   Mr. PRESIDING JUSTICE RIZZI

delivered the opinion of the court:

This case involves an appeal by plaintiff, Edward N. Gay, and an appeal by defendant, Open Kitchens, Inc. The appeals were consolidated.

Plaintiff brought a personal injury action against defendants Open Kitchens, Inc., and Gullo International. Summary judgment was entered in favor of Gullo and against plaintiff. Subsequently, plaintiff filed a section 72 petition to vacate the summary judgment, which was denied. Plaintiff appeals from the summary judgment in favor of Gullo and from the order denying his section 72 petition.

After the summary judgment in favor of Gullo and against plaintiff had been granted, Open Kitchens filed a third-party action against Gullo predicated on theories of contractual indemnity and indemnity based on active/passive negligence. Summary judgment was entered in favor of Gullo and against Open Kitchens. Open Kitchens filed a motion to vacate this summary judgment and for leave to amend the third-party complaint, which was denied. Open Kitchens also filed a section 72 petition to vacate the summary judgment entered in favor of Gullo and against plaintiff. The section 72 petition was denied. Open Kitchens appeals from the summary judgment in favor of Gullo and against Open Kitchens, from the order denying its motion to vacate the summary judgment and for leave to amend the third-party complaint, and from the denial of its section 72 petition.

We strike plaintiff’s appeal from the summary judgment in favor of Gullo and affirm the denial of plaintiff’s section 72 petition. Also, we reverse the summary judgment in favor of Gullo and against Open Kitchens, reverse the order denying Open Kitchens’ motion for leave to file its amended third-party complaint and affirm the order denying Open Kitchens’ section 72 petition.

Plaintiff was injured on June 22, 1975, when he fell into a ramp-pit adjacent to a loading dock. In a separate count against Gullo, plaintiff alleged that Gullo was the general contractor for the construction of the premises where the accident occurred, and that Gullo was negligent because it failed to provide a restraining type chain to safeguard the loading dock area and failed to comply with OSHA standards. In a separate count against Open Kitchens, plaintiff alleged that Open Kitchens owned and maintained the premises where the accident occurred, and that Open Kitchens was negligent because it failed to properly fence off the ramp-pit area and failed to comply with unspecified OSHA standards.

Gullo filed a motion for summary judgment. The motion was supported by an affidavit signed by Gullo’s president. According to the affidavit, Gullo did not construct and/or install a restraining type chain; the construction contract did not provide for such a chain; and Gullo had no obligation to construct and/or install any restraining type chain. The motion was set for hearing on a subsequent date. Plaintiff did not file any documents opposing the motion, and neither plaintiff nor Open Kitchens appeared on the day the motion was set for hearing. The motion for summary judgment in favor of Gullo and against plaintiff was therefore granted without opposition.

Almost two months later, Open Kitchens filed a third-party complaint against Gullo in which it pleaded a right to indemnity based upon contract and upon the theory of active/passive negligence. Gullo filed a motion for summary judgment in the third-party action. Generally, Gullo relied on the doctrine of collateral estoppel and contended that since summary judgment had been entered in its favor and against plaintiff, it could not be liable to Open Kitchens in the third-party action. The motion for summary judgment in the third-party action was granted.

Within the next two weeks, Open Kitchens filed a motion to vacate the summary judgment in favor of Gullo and against Open Kitchens, and it moved for leave to amend its third-party complaint to allege a breach of implied warranty action. The motion was denied. Open Kitchens then filed a section 72 petition in which it sought to vacate the summary judgment entered in favor of Gullo and against plaintiff. The petition was denied.

We first address the issues raised by plaintiff. Initially, plaintiff argues that Gullo was not entitled to summary judgment against him because of the insufficiency of the affidavit filed by Gullo in support of its motion for summary judgment. The summary judgment was entered on February 14, 1978, and it states that there was no just reason to delay enforcement or appeal. Thus, plaintiff had 30 days from that date to file his notice of appeal. (ILl. Rev. Stat. 1977, ch. 110A, par. 303(a).) However, plaintiff did not file his notice of appeal until January 7, 1980, well beyond the 30 day limit. Accordingly, we lack jurisdiction to consider plaintiff’s appeal from the summary judgment in favor of Gullo and against plaintiff, and that appeal is stricken. _

Next, plaintiff contends that the court erred in denying his section 72 petition to vacate the summary judgment because of the insufficiency of the affidavit filed by Gullo. However, nowhere in his petition or brief does plaintiff present any facts which could not have been presented to the trial court at the time the summary judgment was entered. The purpose of a section 72 petition is to permit a party to bring before the trial court facts which, if known to the court at the time the judgment was entered, would have precluded entry of the judgment. (Lilly v. County of Cook (1978), 60 ILl. App. 3d 573, 576, 377 N.E.2d 136, 139 (1978); McKnelly v. McKnelly (1976), 38 Ill. App. 3d 637, 639, 348 N.E.2d 500, 502.) Also, a section 72 petition proceeding cannot be utilized to review judgments from which the party could have taken a timely appeal. (Wells v. Kern (1975), 25 Ill. App. 3d 93, 97, 322 N.E.2d 496, 499.) Therefore, plaintiff’s contention that the court erred in denying his section 72 petition to vacate the summary judgment in favor of Gullo is unavailing.

We next address the issues raised on appeal by Open Kitchens. We first consider whether the summary judgment in favor of Gullo and against Open Kitchens is proper and whether Open Kitchens should be given leave to amend its third-party complaint to allege a breach of implied warranty action. Gullo contends that since summary judgment was entered in favor of Gullo and against plaintiff, the doctrine of collateral estoppel precludes Open Kitchens from pursuing the third-party action against Gullo. Specifically, Gullo claims that Open Kitchens cannot seek indemnity from it because Open Kitchens is estopped from “relitigating” the issue of whether Gullo was negligent.

A prior judgment may serve as a collateral estoppel only when the party against whom it is applied had an effective opportunity to litigate the issue in the prior action. (See Franciscy v. Jordan (1963), 43 Ill. App. 2d 344, 354, 193 N.E.2d 219, 223-24.) Thus, in this sense, it is an estoppel in pais and, therefore, an equitable estoppel, subject to equitable principles. Here, although Open Kitchens had notice of plaintiff’s motion for summary judgment against Gullo, there was no third-party action pending against Gullo at the time the motion was ruled upon. At that time, Open Kitchens and Gullo were not in adversary positions either legally or in fact. As a result, Open Kitchens had no right to appeal the summary judgment in favor of Gullo and against plaintiff. Thus, if that summary judgment were to collaterally estop Open Kitchens as to its claims against Gullo, then Open Kitchens’ rights against Gullo were adjudicated with no right of review, which would clearly be an unjust result. Also, it would be contrary to the doctrine that the application of collateral estoppel depends on broad principles of justice, and that it should be applied only where the party against whom it is invoked had his day in court with a full opportunity to establish his claim. (See Chas. Ind Co. v. Cecil B. Wood, Inc. (1965), 56 Ill. App. 2d 30, 38, 205 N.E.2d 786, 790.) It follows that under the circumstances here, the summary judgment in favor of Gullo and against plaintiff cannot serve as a collateral estoppel in Open Kitchens’ action against Gullo.

Moreover, in considering this contention, the doctrine of collateral estoppel must be distinguished from the doctrine of res judicata. A judgment serves as res judicata with respect to those allegations that were raised or could have been raised in a prior proceeding in which a judgment has been entered. However, a prior judgment can operate as a collateral estoppel only as to those issues and specific allegations that were actually controverted in the first proceeding. Thus, a judgment can serve as a collateral estoppel in a subsequent proceeding only if the issue is the same and is based on the same allegations. Here, there are allegations in the third-party complaint and particularly in the proposed third-party amended complaint which were not made against Gullo in plaintiff’s complaint, and which, if proven, could require Gullo to indemnify Open Kitchens. For this additional reason, if Open Kitchens can prove that Gullo was negligent or breached an implied warranty based on allegations of negligence or breach of implied warranties which were not contained in plaintiff’s complaint against Gullo, then Open Kitchens may be entitled to indemnity from Gullo notwithstanding the summary judgment entered in favor of Gullo and against plaintiff. This is consistent with the principle that the doctrine of collateral estoppel can only be invoked where the party against whom it is asserted has had his day in court and a full opportunity to establish his claim or defense. (Chas. Ind Co. v. Cecil B. Wood, Inc. (1965), 56 Ill. App. 2d 30, 38, 205 N.E.2d 786, 790.) In addition, while the purpose of the doctrine is to prevent a party from litigating the same issue twice, it should not be used to preclude a party from litigating the matter at all.

We therefore conclude that Gullo’s contention that it is entitled to summary judgment against Open Kitchens on the basis of collateral estoppel is untenable. (But see Karon v. E. H. Marhoeffer, Jr. Co. (1973), 14 Ill. App. 3d 274, 302 N.E.2d 478.) The trial court erred in granting Gullo’s motion for summary judgment against Open Kitchens and in denying Open Kitchens’ motion for leave to amend its third-party complaint to allege a breach of implied warranty action.

The remaining issue concerns Open Kitchens’ section 72 petition to vacate the summary judgment entered in favor of Gullo and against plaintiff. We conclude that since Open Kitchens was not a party to that judgment, it had no standing to seek section 72 relief from the judgment. Thus, the trial court properly denied the section 72 petition.

Accordingly, plaintiff’s appeal from the summary judgment in favor of Gullo and against plaintiff is stricken, and the denial of plaintiff’s section 72 petition is affirmed. Also, the summary judgment in favor of Gullo and against Open Kitchens is reversed, the order denying Open Kitchens’ motion for leave to amend its third-party complaint is reversed, and the order denying Open Kitchens’ section 72 petition is affirmed. The case is remanded for further proceedings consistent with what is stated herein.

Affirmed in part, reversed in part and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.


author: Mr. PRESIDING JUSTICE CAMPBELL

text:
    JEROME M. ORBACH, Petitioner-Appellant, v. RALPH H. AXELROD et al., Respondents-Appellees.
    First District (1st Division)
    No. 80-2363
    Opinion filed October 5,1981.

      Michael Kreloff and Franklin S. Schwerin, both of Chicago, for appellant.
    Michael L. Levinson, Andrew M. Raucci, and Michael P. McClelland, all of Chicago, for appellees.
   Mr. PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Jerome M. Orbach (petitioner) filed an election contest after the Board of Election Commissioners declared Ralph H. Axelrod (respondent) elected Democratic Ward Committeeman for Chicago’s 46th Ward. The trial court found for respondent. In his appeal, petitioner raises a variety of issues relating to the validity of the trial court’s rulings in regard to whether certain ballots were properly counted. For the following reasons we reverse and remand this cause to the circuit court of Cook County with directions to dismiss the petition.

The parties were candidates for Democratic Ward Committeeman for Chicago’s 46th Ward in the March 18,1980, primary election. The 46th Ward contains 53 precincts and comprises the Uptown and Edgewater neighborhoods of Chicago’s north lakefront. It utilizes automatic voting machines, punch card ballots and paper ballots for absentee voting. On March 28,1980, the Board of Election Commissioners, which administers elections within the city of Chicago, proclaimed the respondent elected by a margin of two votes. Both parties filed for a discovery recount pursuant to statute. (Ill. Rev. Stat. 1979, ch. 46, par. 22 — 9.1.) Furthermore, petitioner filed his petition for election contest on April 25, 1980. The amended verified petition alleged that petitioner was a resident, elector and legal voter of the 46th Ward as well as a candidate. It alleged irregularities as to the voting procedure in a number of precincts. It specifically alleged that certain ballots were invalidated because the respective voters involved were not duly registered qualified voters, that certain absentee ballots should not have been counted because they had been handled by non-election judges, that the failure of election judges to properly initial certain absentee ballots invalidated these ballots and that several absentee and punch card ballots had not been tallied for various unstated reasons. According to the amended verified petition, had the foregoing votes been handled and tallied properly, petitioner would have been proclaimed ward committeeman.

Respondent filed responsive pleadings including an amended counterclaim alleging certain irregularities in the counting of various ballots and a motion to dismiss the petition. The motion alleged that the petition had not been filed within the statutory time limit for filing such petitions (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 63) and challenged the jurisdiction of the trial court to hear the contest. After a hearing, the trial court denied the motion. The trial court also denied respondent’s motion for certification of the question to this court pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308).

After hearing testimony and examining the ballots at issue the trial court concluded that both candidates’ votes should be increased due to changes required by his rulings as to various votes. He further declared that respondent was elected to the position of ward committeeman, however, only by a margin of 1.84 votes rather than the earlier determined 2-vote margin. It is from this judgment that petitioner appeals. Because we believe that the trial court improperly denied respondent’s motion to dismiss, we find it unnecessary to extensively detail the testimony concerning either the preservation of the ballots or the voting irregularities raised by both parties. In the view that we take of this case the only question we must address is the construction of several provisions of article 7 and article 23 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 1 — 1 et seq.).

The Election Code codifies the election and primary laws of this State and provides for the time for holding elections, voter qualifications and registration, nomination of candidates, procedural aspects of the elections and post-election procedures. Article 7 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 1 etseq.) encompasses virtually unchanged the primary election act of July 6, 1927, which regulated the nomination and election of primary candidates. In a primary election, candidates vie for nomination as their party’s candidate for State, congressional, judicial, city, county, village, town, municipal district and township offices. Additionally, precinct, township, ward and State central committeemen and delegates and alternate delegates to national nominating conventions are elected at primary elections. It should be emphasized that neither the Election Code nor the earlier primary election laws granted authority to political parties to nominate and elect candidates but rather “recognizes such power existing in them, and prescribes the manner in which it shall be exercised.” (People v. Kramer (1928), 328 Ill. 512, 160 N.E. 60.) Article 23 of the Election Code (Ill. Rev. Stat. 1979,. ch. 46, pars. 23 — 1 et seq.) generally provides for contesting elections. It specifically regulates who may bring an election contest and grants jurisdiction to the circuit courts over various types of election contest.

Respondent’s motion to dismiss contended that the petition for election contest had not been timely filed. It alleged that section 7 — 63 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 63) required the filing of the election contest within 10 days of the March 28, 1980, proclamation of the official election canvass. The petition for election contest was filed April 25,1980, and accordingly was filed approximately 28 days after the official proclamation. Petitioner’s contention in the trial court and in this court is that, because the instant election contest pertained to an election rather than a nomination, it was not covered by the provisions of article 7, which pertained to primaries and nominations, but rather was covered by article 23, which provides for the contests of elections. Petitioner specifically relies upon section 23 — 20 (Ill. Rev. Stat. 1979, ch. 46, par. 23 — 20), whereby an elector may file a petition for election contest within 30 days of the official proclamation and points out that his petition was filed on April 25, 1980, within 30 days of the March 23, 1980, proclamation of the official election canvass.

The only decision of this court which has addressed the construction of articles 7 and 23 is Whitsell v. Rutherford (1969), 118 Ill. App. 2d 401, 255 N.E.2d 34 which involved an election contest by a candidate for precinct committeeman in Madison County. The trial court there granted a motion to dismiss on the basis that the petition for election contest was not timely filed and, moreover, did not state a cause of action. On review, the court held that section 7 — 63 (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 63), which provides for primary election contests, failed to provide a procedure for contesting a precinct committeeman’s election. Therefore, the court determined that the legislature did not intend article 7 to be the exclusive means of contesting an election for precinct committeeman. The court then turned to a consideration of the provisions of article 23. The court noted that section 23 — 5 (Ill. Rev. Stat. 1979, ch. 46, par. 23 — 5) provides for the grant of jurisdiction to the circuit court to hear election contests of “all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made” and that the term “precinct officers” used therein could only refer to the position of precinct committeeman. Thus, the court concluded that an election contest for a precinct committeeman could be brought properly under section 23 — 20 (Ill. Rev. Stat. 1979, ch. 46, par. 23 — 20), which provides for the filing of a petition for election contest within 30 days from the date a candidate is declared elected.

Petitioner contends that the Whitsell court’s construction of article 23 — 5, as applicable to the contest of a precinct committeeman, should be extended to include ward committeeman. Petitioner urges this argument is supported by Illinois decisions which have construed the “all other officer” language of section 23 — 5 to refer to other officers of the same or like grade or class. (Baker v. Shinkle (1911), 249 Ill. 154, 94 N.E. 58; Misch v. Russell (1891), 136 Ill. 22, 26 N.E. 528; Brush v. Lemma (1875), 77 Ill. 496.) In Misch, the court held that the phrase “all other officers” cannot be limited to officers specifically named in this provision as this would violate the rule of statutory construction known as ejusdem generis as well as the rule that no word in a statute shall be construed to be superfluous. Moreover, in holding that the court had jurisdiction over the election contest of a school district board of education president, the supreme court noted that the officers specifically named in this provision are officers of quasi-municipal corporations. From this the court reasoned that the phrase “all other officers” should be construed as including all like .officers of quasi-municipal corporations. It would appear using this analysis that a ward would constitute a quasi-municipal corporation similar to a precinct and a ward committeeman would constitute the only possible ward officer whose election would be contested under this provision. See Whitsell v. Rutherford.

We find a strong differentiation between Whitsell and the case at bar. The pertinent section 5 of article 23 (Ill. Rev. Stat. 1979, ch. 46, par. 23 — 5) relied on by petitioner authorizes the circuit court to hear election contests “of all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made.”

A “precinct officer” in Madison County may conceivably be covered by that language. However, a ward committeeman is not and cannot be classified as a county officer. He is, rather, a party officer. The pertinent statute provides for and describes the duties of various county officers who are governing officials. (See Ill. Rev. Stat. 1979, ch. 34.) On the contrary, a ward committeeman is not a governing official but is strictly and only a political functionary.

The rules of statutory construction require this court to determine and follow the intent of the legislature’s acts. (Carey v. Elrod (1971), 49 Ill. 2d 464, 275 N.E.2d 367.) As the court explained in Huckaba v. Cox (1958), 14 Ill. 2d 126, 131, 150 N.E.2d 832,

“It is a cardinal rule of statutory construction that the intent and meaning of a statute are to be determined from the entire statute. A statute is passed as a whole and not in parts. Each section and provision should be construed in connection with every other part or section. [Citation.] In Scofield v. Board of Education, 411 Ill. 11, we said, at page 15: ‘It is a generally accepted principle of statutory construction, and has been so held by this court many times, that in construing a statute or determining its constitutionality, all its sections are to be construed together in the light of the general purpose and plan, the evil intended to be remedied, and the object to be obtained, and if the language is susceptible of more than one construction, the statute should receive the construction that will effect its purpose rather than defeat it.’ ”

This rule has been specifically applied in construing the Election Code in Young v. Mikva (1977), 66 Ill. 2d 579, 363 N.E.2d 851, and Carey v. Elrod (1971), 49 Ill. 2d 464, 275 N.E.2d 367. Moreover, the consequences resulting from various constructions of an act must also be taken into consideration. (People ex rel. Holland v. Edelman (1975), 27 Ill. App. 3d 793, 327 N.E.2d 338.) Where several constructions may be placed upon a statute, the court should select that which leads to a logical result and avoid one which the legislature could not have contemplated. Board of Education v. Community High School District No. 211 (1967), 89 Ill. App. 2d 481, 232 N.E.2d 316; People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 242 N.E.2d 267.

An analysis of article 7 as a whole reveals a comprehensive, all inclusive approach to regulating the course and conduct of primary elections ranging from petitions for nomination, the qualifications of voters at a primary, procedures for the election itself and post-election procedures, including section 7 — 63 concerning primary contests which is at issue here. In fact, the article’s scope of subject matter closely parallels the subject matter of the remaining articles of the Election Code which deal with general elections. The legislature’s approach in this article clearly evidences an intent to regulate every aspect of the nomination or election of candidates at a primary including the contest of elections.

This conclusion is buttressed by reference to section 7 — 1. It provides that the nomination of certain specified candidates as well as the election of certain specified candidates, including ward committeeman, “shall be made in the manner provided in this article 7, and not otherwise.” We believe that section 7 — l’s declaration, that elections held at a primary shall be made only in the manner set forth in article 7 was intended to limit the contest of said elections to the primary contest provision found in this article, section 7 — 63. We reach this determination on the basis that an election contest is merely one of several procedures in article 7 relating to post election procedures. Moreover, a contest is intrinsically related to the holding of the election.

To accept petitioner’s theory in this regard we would be required to overlook the important words “and not otherwise.” This would effectively emasculate the statute and would be contrary to “the fundamental rule that each word, clause or sentence must, if possible, be given some reasonable meaning. Hirschfield v. Barrett (1968), 40 Ill. 2d 224, 230, 239 N.E.2d 831.

Our examination of the entire article 7 convinces us that the time of filing of this contest is governed by section 63 of article 7. To begin with, section 1 of article 7 (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 1) expresses specifically that it is applicable to “the election of precinct, township, ward and State central committeemen ®- * ®.” In addition, section 63 of article 7 (Ill. Rev. Stat. 1979, ch. 46, par. 7 — 63) provides specifically:

“Authority and jurisdiction are hereby vested in the circuit court or in the judges thereof, to hear and determine primary contests.”

A few lines above this statement, the same section (par. 7 — 63) provides:

“Any candidate whose name appears upon the primary ballot of any political party may contest the election of the candidate or candidates nominated for the office for which he was a candidate by his political party, upon the face of the returns, by filing with the clerk of the circuit court a petition in writing, setting forth the grounds of contest, which petition shall be verified by the affidavit of the petitioner or other person, and which petition shall be filed within 10 days after the completion of the canvass of the returns by the canvassing board making the final canvass of returns. The contestant shall also file with that canvassing board (and if for the nomination for an office, certified tabulated statements of the returns of which are to be filed with the State Board of Elections, also with the county canvassing board), a notice of the pendency of the contest.” (Emphasis added.)

Considering all of these portions of the statute which must necessarily be read and construed together, it seems inescapable that candidates for the office of ward committeeman are to be elected at the time of the primary or, as it is sometimes called, the primary election. In addition, if this type of election is to be contested, the proceedings in such contest are governed by the same article 7. In fact, the statutory heading above section 63 of article 7 is “Primary election contest.” We find from this language a clear legislative intent to provide for every aspect of the election of ward committeeman including the filing and management of election contests.

As we have already explained, we believe that section 7 — l’s declaration that elections held at a primary election shall be made only in the manner set forth in article 7 evidences a clear intent to provide in article 7 for every aspect of an election including the contest of the election, and we believe that the legislature intended section 7 — 63 to provide for primary contests whether from a nominated office or an elected office. This intent is consistent with the purpose of the Act to promote the integrity of the political party system in Illinois. Moreover, we note that as the officers elected at a primary are political party functionaries it is not unreasonable for the legislature to regulate such elected officers under the same scheme as political nominees. All primary candidates are vying for a position within a particular political party. Moreover, party officers elected at a primary have the same time considerations as do party nominees in that it is imperative that the question of whether a candidate has been properly elected to a political office be resolved so that he or she can begin to fulfill the party obligations inherent in the office. Based on all of the foregoing, it would appear that it is consistent with the goal of maintaining the integrity of political parties that election contests for elected party offices proceed under the same expedited election contest procedure as contests for political nominees.

Alternatively, approaching the problem from another point of view, words may be added, deleted or changed in a statute to effectuate the legislative intent. (People ex rel. Carson v. Ring.) This recognizes the rule that the intention of the legislature is to be gathered not only from the language used but also from the reasons for the enactment and the purposes to be attained. (People ex rel. Carson v. Ring; In re Estate of Curtis (1963), 28 Ill. 2d 172,190 N.E.2d 723; Mid-South Chemical Corp. v. Carpentier (1958), 14 Ill. 2d 514, 153 N.E.2d 72.) Indeed, as the court noted in Smith v. County of Logan (1918), 284 Ill. 163, 165-66, 119 N.E.2d 932:

“In construing a statute the court will not be confined to its literal meaning. A thing within the intention is regarded within the statute although not within the letter. A thing within the letter is not within the statute if it is not within the intention. When the intention has been thus ascertained from the reading of the statute, words may be modified or altered so as to obviate all inconsistencies with such intention. [Citations.]”

Accordingly, we believe that this court has the authority to read section 7 — 63 in such a way as to add the words “or elected” after the word nominated to effectuate the intent of the legislature. As amended the section would then read as follows: Any candidate whose name appears upon the primary ballot of any politial party may contest the election of the candidate or candidates nominated or elected for the office for which he was a candidate by his political party. People v. Hudson (1970), 46 Ill. 2d 177, 263 N.E.2d 473; People ex rel. Carson v. Ring.

Based on the foregoing analysis we must reject petitioner’s contention that the legislature clearly established two statutory schemes for election contests, one pertaining to elections where a candidate is nominated for an office and the other where the candidate is elected to office. He hypothesizes that the legislature decided to distinguish between these two types of contests from a nomination and 30 days from an election in recognition of the fact that an expedited election contest procedure is needed for the contest of a nomination due to the fact that there are only a few months to conduct an election contest after the primary before a general election occurs. Under this view the 10-day filing requirement in the expedited election contest insures a decision prior to the general election, whereas it is argued that no such expedited procedure is necessary where the candidate for an elected office will not face a general election.

We also reject petitioner’s contention that the 10-day filing requirement could not be applicable where a candidate is elected at a primary because the parties to an election may file for a discovery recount pursuant to section 22 — 9.1 (Ill. Rev. Stat. 1979, ch. 46, par-. 22 — 9.1), whereas a candidate who is nominated at a primary may not seek a discovery recount. In the instant case petitioner notes that both parties filed for discovery recounts and the recounts did not commence until after the running of the 10-day filing period provided in section 7 — 63. Consequently, it was impossible to incorporate the results of the discovery recount into the petition for election contest within the 10-day period. Petitioner specifically argues in his brief before this court that “it would be irrational to assume that the legislature would provide for a discovery recount for the election of Ward Committeeman without providing even a modest period of time in which to incorporate in the ensuing election contest the facts brought to light in the discovery recount.” We believe that the parties could seek to amend a timely filed petition for election contest to incorporate the findings of the discovery recount in time to avoid an adverse ruling from a motion to dismiss based, for instance, on allegations of lack of specificity. Moreover, we note that there is no allegation in the record that either or both parties sought to get the discovery recount commenced within the 10-day period.

Election contests are statutory in nature and, therefore, jurisdiction and procedure are strictly governed by the specific statutory provisions. (Young v. Mikva (1977), 66 Ill. 2d 579, 363 N.E.2d 851; Nesladek v. Kanka (1930), 341 Ill. 180, 173 N.E. 94; Waupoose v. Kusper (1972), 8 Ill. App. 3d 668, 290 N.E.2d 903.) Under this general rule, failure to timely file an election contest is fatal and divests the court from proceeding with the contest. (Patterson v. Crowe (1944), 385 Ill. 2d 514, 53 N.E.2d 415.) We need not consider the merits of this situation as argued in the briefs.

The order of the circuit court of Cook County denying respondent’s motion to dismiss the petition is reversed and the cause is remanded with directions to dismiss the petition for election contest.

Order reversed and cause remanded with directions.

GOLDBERG and McGLOON, JJ., concur.