author: PRESIDING JUSTICE BARRY

text:
    DAVID LUCIANI et al., Plaintiffs-Appellants and Cross-Appellees, v. STANLEY BESTOR et al., d/b/a Cabe Company, Defendants-Appellees and Cross-Appellants.
    Third District
    No. 81-361
    Opinion filed May 17, 1982.

      Dorothea O’Dean, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellants.
    John M. Blachinsky and Charles Blachinsky, both of Kewanee, and Reynolds M. Everett, of Everett & Young, P. C., of Galva, for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

A five-year contract for lease and sale of business enterprises consisting primarily of a motel and restaurant lies at the heart of the litigation herein. We are not concerned today, however, with an action sounding in contract, and our task is simplified to the extent that the instant action sounds only in tort and equitable rescission. Plaintiffs, David and Naomi Luciani, appeal from judgment entered in their favor on the tort claim and against them on their claim for rescission. Defendants, Stanley and Robert Bestor, have cross-appealed only from that part of the judgment awarding plaintiffs money damages on the tort claim.

On March 3, 1979, plaintiffs filed a two-count complaint against the defendants in the circuit court of Henry County, Illinois. In count I, plaintiffs alleged that they had been damaged as a result of “false and fraudulent misrepresentations” made by the defendants to induce plaintiffs to enter into a contract to assume business premises, commonly known as the Deck, located just off of Interstate 80 in Geneseo, Illinois.

Evidence at trial established that the parties herein were social acquaintances prior to the development of circumstances giving rise to the instant litigation. Approximately in mid-March 1978, they met and discussed the possibility of defendants transferring to plaintiffs the business operations at the Deck. Negotiations ensued and led to a written memorandum of agreement which was signed on April 12,1978. Ultimately, on May 1,1978, the negotiations culminated in the signing of a five-year lease for the real estate and a contract for purchase of personalty used in conjunction with the leased premises.

Plaintiffs’ complaint alleged six separate instances of false and fraudulent representations relative to the 1978 transaction: (1) failure to disclose the discontinuance of usage of the restaurant area by Greyhound Bus passengers; (2) failure to disclose that the Best Western franchise for the motel operation would be terminated; (3) misrepresentations in financial statements because of failure to allocate certain “spread expenses” applicable to defendants’ business operations not included in the deck transaction; (4) misrepresentations in financial statements because of including income not properly allocable to the vending machines located on the Deck premises; (5) failure to disclose certain bonuses on the financial statements; and (6) improper inclusion of tips in restaurant sales on financial statements. Plaintiffs claimed damages in the amount of $150,000, representing lost profits, increased expenses and loss of employees.

In count II, plaintiffs realleged false and fraudulent representations and requested relief in the form of rescission, an accounting and restoration of the status quo. Prior to the date set for trial, plaintiffs filed a “notification of election” in which they expressed their desire to proceed on count II for equitable relief as opposed to legal damages as requested in count I.

A bench trial ensued, during which the bonus and tips issues were stricken. At its conclusion the trial court entered its order finding no actionable fraud on the part of the defendants as to Greyhound, Best Western and spread expenses. The court awarded plaintiffs $11,727 upon a finding of negligent misrepresentation in connection with the vending machine portion of the parties’ transaction. From this judgment, plaintiffs have appealed and defendants have cross-appealed, as aforesaid.

Neither party on appeal contests the striking of plaintiffs’ allegations of fraud with respect to the bonuses and tips. The issues pertaining to the four remaining allegations of fraud are: (1) whether the trial court’s denial of rescission is contrary to the manifest weight of the evidence and an abuse of discretion; (2) whether the plaintiffs’ election to proceed on their claim for equitable relief bars them from recovering damages at law; (3) whether the trial court’s findings of no fraud with respect to the four remaining allegations of false and fraudulent representations are erroneous; and (4) whether an award of damages for negligent misrepresentation of the vending machine income and expenses is proper in this case.

1. Denial of Rescission.

The trial court initially determined that the remedy elected by the plaintiffs — rescission—was not available. The court found that the plaintiffs, although placed on notice of each of the purported instances of fraudulent representations either prior to or within a month after the contract was signed by the parties, continued to deal with the property for more than seven months thereafter, thereby ratifying the contract and making it impossible to establish the status quo ante at the time the complaint was filed. The court, despite plaintiffs’ notification of election and its determination that rescission was not available, permitted plaintiffs to present evidence of alleged fraudulent representations on the theory that relief at law was not precluded.

Plaintiffs on appeal argue in the alternative that they had not waived the right to rescind by their conduct with respect to the continued operation of the businesses involved in the transaction, or that the defendants waived their defense to plaintiffs’ request for rescission by failing to affirmatively plead waiver, laches or estoppel in their answer. Plaintiffs apparently proceed from the erroneous premises that an absolute right to rescind exists. Indeed, the equitable remedy of “rescission is not a matter of right but rather one of grace, and lies largely within the court’s discretion.” (Bechard v. Bolton (1946), 316 Mich. 1, 5, 24 N.W.2d 422, 423.) On review this court will not disturb the determination of the trial court to grant or deny rescission absent a clear showing of abuse of discretion.

As a general rule, a court sitting in equity will not decree rescission of a contract where the parties cannot be placed in the status quo ante. (Bielby v. Bielby (1929), 333 Ill. 478, 487, 165 N.E. 231, 234; 12A C.J.S. Cancellation of Instruments sec. 53, at 727 (1980).) Failure of plaintiffs to demonstrate to the satisfaction of the court that the equitable remedy sought is appropriate under the circumstances may operate to defeat their claim in equity.

The statutory rule of pleading which requires a defendant to set forth affirmative defenses in his answer (Ill. Rev. Stat. 1977, ch. 110, par. 43(4)) does not deprive the trial court of power to deny rescission in the absence of such pleading where the facts and circumstances in a particular case render restoration of the status quo ante virtually impossible. Indeed, the written findings of the court in the instant case demonstrate that denial of rescission was based upon the inappropriateness of the remedy under the circumstances. The businesses at issue had been operated by the plaintiffs for seven months before the claim for rescission was advanced by them. During that period the plaintiffs had instituted significant changes in management and administrative policies. The court suggested that differences in the parties’ approach to management and the disparity of their experience in operating the businesses involved in the transaction may have occasioned at least part of the losses complained of by plaintiffs. In addition, the contract for lease, as aforestated, extended only for a five-year period. Three of the five years had already elapsed by the time the trial was completed.

Considering the foregoing circumstances, we find that the trial court’s denial of rescission for inability to restore the parties to the status quo ante was not an abuse of the broad discretionary powers of the court sitting in equity. Plaintiffs were properly relegated to seeking their relief at law.

2. Election of Remedies.

This brings us to the defendants’ first issue on their cross-appeal, namely, whether the plaintiffs’ election to proceed on their claim for equitable relief bars them from recovering damages at law. By electing to pursue the equitable remedy, plaintiffs expressed a preference to repudiate the transactions and be restored to the status quo ante. Had the court determined that the plaintiffs had pursued their equitable remedy promptly and that restoration of the status quo ante was possible, then it is clear that an award of equitable relief would have precluded a further action seeking money damages to compensate plaintiffs for loss of the benefit of their bargain. Where, however, as here, the court determines that rescission is not available because the parties cannot be restored to the status quo ante, then the doctrine of election of remedies will not operate to deny the allegedly defrauded party an opportunity to maintain a suit at law for damages. 37 C.J.S. Fraud sec. 65 (1943).

In the instant case, the trial judge expressed his opinion early in the proceedings that the plaintiffs should be permitted to proceed under the tort damage count I even though plaintiffs’ conduct with respect to the operation of the various businesses precluded rescission, the form of relief specifically elected by them. Defendants will not be heard to complain of prejudice resulting from any unreasonable surprise since the proof of fraud under count I was essentially the same (except for the element of damage) as that which plaintiffs were required to produce under count II. (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 48, 390 N.E.2d 393, 403 (hereinafter Mother Earth.).) Therefore, we find no error in the trial court’s disposition of the election of remedies issue.

3. Findings of no Fraud.

We next consider plaintiffs’ argument on appeal that the trial court committed reversible error in its finding of no intentional fraud as to each of the specific allegations contained in the complaint. We have reviewed the record thoroughly and conclude that the trial court’s findings are not contrary to the manifest weight of the evidence. The elements of fraud are succinctly set forth in what must now be considered the seminal case for analyzing fraud in Illinois, namely Mother Earth. (See also Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286, 402 N.E.2d 599, 601.) Those elements need not be repeated here, and for the purpose of this opinion, we will address only the elements of fraud for which the trial court determined that insufficient proof had been adduced at trial.

Greyhound — The trial court found no reasonable or justifiable reliance on the part of the plaintiffs. For purposes of our analysis, the missing element is: “ ‘the person to whom the statement is made must believe and rely on it, and have a right to do so.’ Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 48, 390 N.E.2d 393, 403 (quoting Broberg v. Mann (l965), 66 Ill. App. 2d 134, 139, 213 N.E.2d 89, 91).

The testimony adduced at trial tended to show that during the period of the parties’ negotiations, the plaintiffs learned that Greyhound buses made regular stops at the Deck and permitted passengers to deboard and enter the restaurant and use the vending machines. Prior to May 1, 1978, when the contract was signed, plaintiffs learned that the bus company was changing its route and would eliminate the Deck stop. In fact, the buses did discontinue their stops at the Deck in June, 1978.

Plaintiffs argue that, despite their actual knowledge that the buses would be eliminating their stops on the premises, plaintiffs were justified in relying on the defendant’s financial reports of restaurant profits and could reasonably anticipate that their own profits would be substantially similar because the defendants had commented that the bus passengers were probably more of a nuisance than they were worth. In determining whether a party justifiably relies on another’s representations, all of the circumstances surrounding the transactions, including the parties’ relative knowledge of the facts available, opportunity to investigate the facts and prior business experience, will be taken into consideration. Only where the parties do not have equal knowledge, or access thereto, or where there are other peculiar circumstances inducing the injured party to rely solely on the representations of the other will a person be found to have justifiably relied upon the others’ representations. (Broberg v. Mann (1965), 66 Ill. App. 2d 134, 141, 213 N.E.2d 89, 92-93.) The plaintiffs herein were experienced business persons in restaurant operations. As aforestated, plaintiffs learned in advance of the date of contracting that the Greyhound bus passengers would cease their regular stops at the Deck restaurant. The defendants stood ready and willing to permit the plaintiffs to inspect their accounting books during the period of negotiations. There was ample opportunity for the plaintiffs to conduct their own investigation into what impact the change of bus routes could have on restaurant profits. Apparently they chose not to do so. On these facts we do not hesitate to affirm the finding by the trial judge that no actionable fraud could be found.

Best Western — The trial court found that defendants intended neither to deceive the plaintiffs nor to induce their reliance. The court further found that plaintiffs’ reliance was not reasonable or justifiable. Because we find that the plaintiffs herein had no right to rely upon the alleged misrepresentation, we need not reach the scienter elements with respect to this issue.

During the period of the parties’ negotiations, the motel operation was run under a franchise with Best Western. Terms of this franchise included periodic inspections of the motel premises, and continued membership in the franchise required that the motel meet certain standards in areas of cleanliness, good repair and safety. Under the defendants’ management, the motel had passed these inspections; however, an inspection conducted within two weeks after the plaintiffs took possession resulted in a failing score. As a result, the plaintiffs’ application for membership was denied. Although plaintiffs were offered an opportunity to upgrade the premises and reapply for franchise membership, they failed to do so and ultimately lost the benefits of the Best Western franchise, including the Best Western road sign, reservations system and certain discounts on supplies.

The plaintiffs contend that they were misled by the defendants’ statement to the effect that there would be no problem transferring the franchise membership to them. In an arm’s length transaction between experienced businessmen, we do not believe that the plaintiffs could justifiably rely upon this statement, without more. Plaintiffs’ position on this issue is that the statement induced them to believe that the franchise membership would automatically continue for the period already paid for by the defendants and that, had they known otherwise, they might not have agreed to the transaction. In fact, plaintiffs had had prior experience with a Happy Joe’s franchise. During the negotiations in the instant transaction plaintiffs were specifically told by defendants that the franchise did not go with the motel premises and that they would have to work out something directly with Best Western. The condition of the motel premises was not kept a secret from the plaintiffs, nor was the franchise agreement. On these facts, we agree with the trial court that plaintiffs could not have justifiably relied upon the defendants’ casual statement in deciding whether or not to agree to the transfer. Accordingly, we affirm the trial court’s disposition of the Best Western issue.

Spread Expenses — The trial court found no false statements, no intent to induce reliance, no intent to deceive, and no justifiable or reasonable reliance. The facts relative to this issue disclosed the following: The defendants were engaged in various other business enterprises located outside the Deck complex. A parent corporation was set up to coordinate the various businesses. For purposes of accounting defendants made a practice of lumping together certain common expenses incurred by the parent corporation. Without showing a breakdown of the precise nature of the expenses included in this item, they allocated a designated percentage of the total of these common expenses as a “spread expense” item on the monthly profit and loss statements for each of the various operations. When the financial statements were offered to the plaintiffs, the word “no” was written alongside the “spread” items. Plaintiffs contend that this indicated to them that they would not incur these particular expenses. The defendants, on the other hand, pointed out at trial that the “no’s” indicated merely that the expenses had been allocated from the parent corporation’s common expenses, and the figures shown on the monthly statements would not necessarily represent what the plaintiffs could expect to incur after the transfer of the Deck operations. In any event, both parties employed accountants of good reputation well in advance of the signing of the contract on May 1, 1978. The statements of income and expenses which were provided by defendants’ accountant to the plaintiffs’ accountant for the fiscal years ending in 1976 and 1977, included the “spread expenses” allocable to the operations that plaintiffs were to assume under a column labeled “Other and Administration.” The other columns provided income and expenses for each operation to be assumed by plaintiffs and a final column listing the total income and expenses for the defendants’ entire multidivision corporation. The “Other and Administration” column was in fact applicable to the defendants’ total multidivision corporation. The bottom line figures showed an $85,708.51 loss for 1976 and a $77,703.40 loss for 1977. Among the expenses listed under this heading, which did not appear under the headings for any of the specific operations to be taken over by plaintiffs, were the following for 1976 and 1977 respectively:

(1) Company .cars $3,834.92 and $2,415,67
(2) Contributions 475.00 and 460.00
(3) Travel and Entertainment 1,557.26 and 913.95
(4) Membership and Dues 2,356.92 and 2,691.30
(5) Legal and audit 3,891.00 and 2,265.00
(6) Officers’Wages 29,162.00 and 32,168.12
(7) Depreciation 3,451.39 and 3,127.95
(8) Employees Pension Fund 13,576.00 and 13,390.00.

If nothing else, it should have been readily apparent to the plaintiffs, and their accountant, that part of the legal and audit expenses listed under this heading were allocable to the operations to be assumed by them.

The statements of yearly expenses and income together with the individual profit and loss monthly statements showing “spread expenses” certainly were sufficient to give the plaintiffs fair notice that they could expect to incur some expenses in their own operation of the Deck businesses which the defendants could not specifically break down for them because of the percentage allocations applied by the defendants in accounting for their multidivision operations.

Plaintiffs’ reliance on only the itemized income and expenses displayed on the 1976 and 1977 financial statements while totally disregarding the expenses listed under “Other and Administration” is simply not reasonable or justifiable under the circumstances. As such, we affirm the trial court’s finding that no actionable fraud can be found with respect to the spread expenses issue.

Vending Machines — The trial court found no fraud, but instead determined that the defendants were liable for “negligent misrepresentation” and awarded damages in the amount of $11,725. On appeal plaintiffs take the position that the trial court erred in failing to find fraud, or, alternatively, that the award was grossly inadequate. The defendants, likewise, are dissatisfied with the trial court’s judgment with respect to the vending machine issue. In their cross-appeal, defendants argue in the alternative that there is no basis for awarding monetary relief as an equitable remedy for negligent misrepresentation in the absence of fraud, or that plaintiffs are precluded from recovering on a theory of negligent misrepresentation because their complaint alleged tort liability only on a theory of intentional fraud.

The starting point for analysis of the issue is the determination of whether the trial court erred in its finding that there was no fraud. The evidence at trial revealed that the defendants in fact owned, in addition to the 12 vending machines located on the portions of the Deck premises leased by the plaintiffs, several additional machines which were located in other business properties. Approximately six machines were at the Deck automotive service station which was not involved in the instant transaction, and seven others were totally unassociated with the Deck complex. It is unclear whether the total number of machines owned by the defendants was ever revealed to the plaintiffs during the negotiation period. The defendants stated at trial that all of their vending machines were being offered to the plaintiffs. The plaintiffs stated that they were aware that the defendants had machines in their business properties off of the Deck complex premises, but understood throughout the negotiation period that they were being offered only those located at the Deck businesses that they would be assuming. The defendants had explained to the plaintiffs that they could either rent or purchase the machines as they saw fit.

Approximately one month prior to the signing of the contract involved herein the defendants forwarded to plaintiffs their 1976 and 1977 financial statements which included the income and expenses from all 25 of the defendants’ vending machines under the general heading “Deck Gift and Vending.” The statements did not, however, display the number of machines. A few days before the May 1 closing date, the plaintiffs told defendants that they wanted to buy 11 of the 12 machines located on the business premises involved in the instant transaction. When the plaintiffs made their decision to purchas 11 machines, they did not request further financial information, and defendants did not point out to the plaintiffs that the figures provided on the earlier statements reflected a greater number of machines than ultimately selected for purchase by them. Based on the facts and circumstances presented, the trial court concluded that the plaintiffs had failed to prove an intentional misrepresentation. We affirm this finding.

The focal point in distinguishing between intentional fraud and negligent misrepresentation is intent or “scienter.” The element of intent for intentional fraud involves “intent to deceive, to mislead, or to convey a false impression.” (Prosser, Torts sec. 107, at 700 (4th ed. 1971).) Proof that the maker of the statement knows or believes it to be untrue will suffice to establish a prima facie case of fraud on this element. (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 50, 390 N.E.2d 393, 404.) On the other hand, a representation which the maker believes to be true but because of negligent expression is in fact false is a negligent rather than fraudulent misrepresentation. (Restatement (Second) of Torts §528 (1977).) The evidence in the instant case was conflicting. Generally, where evidence at trial is conflicting, the issue bé^ comes one of witness credibility. Because of the trial court’s superior position for determining witness credibility issues, this court will not disturb the findings of the trial court unless it is clearly demonstrated that its findings are contrary to the manifest weight of the evidence. Our review of the record in the instant case convinces us that the trial court’s finding of no intentional fraud was not manifestly erroneous. Accordingly, we affirm the trial court to the extent that, at most, defendants were guilty of negligence in failing to indicate that the figures provided on their financial statements included machines located on business properties that were not directly involved in the instant transaction.

4. Award of Damages

We must next determine whether an award of damages was proper. We readily agree with the defendants that the monetary award was not proper as an incidence of plaintiffs’ claim for rescission. The trial court’s order makes it abundantly clear that the award was based on plaintiffs’ claimfor relief at law, not in equity. Having previously concluded that the trial court could properly entertain plaintiffs’ claim for damages at law under count I, notwithstanding their election to proceed under count II in equity, we must determine whether an award based on a finding of negligence was appropriate in this case.

Illinois law clearly recognizes that the tort of negligent misrepresentation is actionable if the complaint alleges the necessary elements of negligence. (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483,493,429 N.E.2d 1267, 1275.) Defendants herein, however, correctly state that plaintiffs’ complaint in count I sounds in intentional tort, not negligence.

As a general rule, a party will not be allowed to try a case upon one theory and recover on another. (Broberg v. Mann (1965), 66 Ill. App. 2d 134, 138, 213 N.E.2d 89, 91.) We are, however, aware of the liberal rules allowing for amendment of pleadings to conform with proof, and that such amendment may be made in the reviewing court on its own motion. (Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 388 N.E.2d 943; Simonson v. Simonson (1970), 128 Ill. App. 2d 39, 262 N.E.2d 326; Ill. Rev. Stat. 1977, ch. 110A, pars. 362(f) and 366(a)(1).) The general rule permitting amendment of pleadings to conform with proofs requires a determination that allowance of the amendment would not prejudice the defendant in view of the character of his defense in the trial court. Simonson v. Simonson (1970), 128 Ill. App. 2d 39,48,262 N.E.2d 326,331.

Plaintiffs herein have not alleged a duty of care owed to them which was breached by the defendants. While failure to plead duty and breach of duty in this case — involving as it does the sale and lease of business property — would not have been fatal to plaintiffs’ recovery, we nonetheless believe that exercise of our authority to sua sponte amend the complaint to state a claim for negligent misrepresentation would prejudice defendants herein.

Defendants on appeal argue that plaintiffs were contributorily negligent in failing to ascertain what effect their selection of the 11 machines would have on their anticipated profits. Plaintiffs’ contributory negligence, if found, would have barred recovery in a negligence cause of action. To the contrary, allegations of plaintiffs’ contributory negligence would not have constituted a defense to fraud.

Plaintiffs neither pleaded nor proved at trial that they were free of contributory negligence. The defendants did not present affirmative evidence of plaintiffs’ contributory negligence. We cannot determine from the record that in fact the plaintiffs were not contributorily negligent in failing to ascertain what effect, if any, their ultimate decision to purchase 11 vending machines would have had on their use of the financial statements to project their own anticipated profits. To amend the pleadings at this stage would have the effect of denying defendants an opportunity to present evidence of a defense that was otherwise inapplicable considering the state of the pleadings in the trial court. Furthermore, plaintiffs have never requested an amendment to conform the pleadings to the proof. Exercise of our power to amend on our own motion would, in our opinion, constitute an abuse of discretion in this case.

In sum, we conclude that the trial court erred in awarding damages for negligent misrepresentation, a theory never pleaded by plaintiffs and against which the defendant had no opportunity to defend. Having found no basis for recovery on fraud, the complaint provided no basis for plaintiff’s recovery.

For the foregoing reasons, the judgment of the trial court awarding damages for negligent misrepresentation is reversed. In all other respects the order and judgment appealed from is affirmed.

Affirmed in part, reversed in part.

STOUDER and ALLOY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN SPEED, Defendant-Appellant.
    Second District
    No. 81-75
    Opinion filed June 2,1982.

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

delivered the opinion of the court:

In a jury trial, Steven Speed was convicted of the offense of unlawful possession of more than 30 and less than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1979, ch. 56%, par. 704(d)) and sentenced to 18 months’ probation, 90 days to be served in the county jail. He appeals, contending that the affidavit for a search warrant failed to support a finding of probable cause; he was not proved guilty of the felony beyond a reasonable doubt; the giving of an unconstitutional instruction inferring guilt from control of the premises, and closing arguments of counsel, comprised prejudicial errors; and he was denied effective assistance of counsel.

I

The affidavit relied upon for the issuance of the search warrant stated:

“The affiant, Captain Melvin Messer, being an Ogle County Deputy Sheriff and a peace officer of the state of Illinois.
The affiant on April 23, 1980 talked with a confidential source whose information in the past has led to the arrest and convictions of at least 10 persons for violations of the Cannabis Control Act and the Controlled Substance Act. His information also led to the arrest and conviction of at least 4 persons for Burglary. And has made at least 12 controlled buys and has supplied other intelligence information which has been proven factual. The affiant has known the confidential source since 1969. On April 23, 1980, the affiant was told by the confidential source that he had been at the Steven Speed residence at Hemstock and Center Road and had observed a large quantity of drugs, namely cannabis and other controlled substances. His exact words were ‘the house looks like a drug store.’ Confidential source went on to say that Speed has been and had been arrested in March 1979. The affiant checked with the Chief of Police of Rochelle Police Department who adVised the affiant that on March 15,1979 Speed was arrested for Possession of Cannabis and Possession of Controlled Substances. The Chief of Police advised the affiant that he had personally observed drug sales taking place from his vehicle in the Pour House parking lot in Rochelle, Illinois and the subsequent arrest led to the confiscation of his vehicle by court order through a plea bargain with the States Attorneys office on the charges that were placed against him. The confidential source then told the affiant that within the past 3 days he had a conversation with Steven Speed where Speed stated, when asked if he had any Cannabis for sale stated that he did not want to deal in town because the heat is on. The confidential source had used Cannabis in the past and knows what it looks like and the effects of it when it is used and is able to identify it on sight.”

The defendant argues that the affidavit is insufficient because it fails to allege the date when the confidential informant saw the contraband within defendant’s home or to furnish any reasonable inference of the recency of the observation. The State argues that we can infer that the contact between the informant and the defendant, and the informant’s observation of the house, occurred within 3 days prior to April 23, 1980; moreover, that the issue has been waived by failure to move to suppress the search warrant and by failure to include the objection in a post-trial motion.

Generally, reviewing courts will not consider the question of illegal search and seizure where it is not raised before the trial court (People v. Johnson (1967), 38 Ill. 2d 399, 402; People v. Harris (1965), 33 Ill. 2d 389, 390.) The plain error rule (73 Ill. 2d R. 615(a)) does not require a reviewing court to consider all errors involving constitutional or other substantial rights unless it is “plainly apparent” that the error involves a serious injustice to a defendant; which includes consideration of the closeness of the evidence on the possibility that an innocent person may have been convicted as a result of the error. (People v. Jackson (1981), 84 Ill. 2d 350, 359-60.) In addition, a court of review may consider issues not properly preserved if the errors deny the accused a fair and impartial trial. (People v. Carlson (1980), 79 Ill. 2d 564, 576-77.) It has been noted that in the great majority of cases in which fourth amendment claims of illegal search and seizure are not raised in the trial court, reviewing courts refuse to consider them because, even assuming the validity of the claims, the fact remains that a defendant has been convicted “upon probative evidence at a trial which was not infected with unfairness.” (3 W. LaFave, Search and Seizure sec. 11.7, at 734 (1978).) And the further reason has been stated that the plain error rule should not be used to reach fourth amendment claims as it would penalize the prosecution, which might not introduce other evidence of probable cause for a search when defendant’s failure to raise an objection before or during trial seemed to make such showing unnecessary. (3 W. LaFave, Search and Seizure sec. 11.7, at 734-35 (1978).) There has also been a mounting recognition that “unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury.” See United States v. Payner (1980), 447 U.S. 727, 734, 65 L. Ed. 2d 468, 476,100 S. Ct. 2439, 2445-46.

Here the evidence seized was, in fact, trustworthy. There is also no showing that the State, if it had been alerted to the deficiencies in the affidavit, could not have introduced more detailed testimony to make a showing of probable cause based other than upon the affidavit. (See People v. Edwards (1976), 35 Ill. App. 3d 807, 809.) These factors militate strongly against our use here of the plain error rule as an exception to the rule of waiver. We conclude that the issue has been waived.

The defendant has included this issue, with other asserted errors, under the claim of incompetency of trial counsel as the basis for our not enforcing the waiver rule. Although we have stated we do not reach the merits of the question as plain error, we allude to the affidavit in determining whether defendant’s defense counsel has been incompetent in not moving to suppress or to raise the illegality of the search and seizure in the trial court.

While the affidavit does not clearly establish the date when the informant sighted contraband in the defendant’s residence, it is not “so clear as to admit of only the conclusion” that the motion would have been successful. (See People v. Henry (1982), 103 Ill. App. 3d 1143, 1146-47.) We do not decide the sufficiency of the affidavit on its merits, but several considerations bear on the uncertainty of the result had there been a timely motion to suppress. The affidavit discloses the police talked to the informant within “the past 3 days.” The currency of the police contact with the informant was thus established. A search warrant has been held to have issued on probable cause where an affidavit has stated that information has been “just received,” as supporting the inference that the informant had been at the residence of the defendant on the same day. (People v. Mayes (1977), 78 Mich. App. 618, 622-23, 261 N.W.2d 22, 25.) And see State v. Partin (1977), 88 Wash. 2d 899, 567 P.2d 1136, 1139 (affidavit reciting that information had been “just received” on day warrant issued held sufficient). But see 1 W. LaFave, Search and Seizure sec. 3.7, at 693 n.52 (1978).

From the fact that defendant is alleged to have said “he did not want to deal in town because the heat is on,” the reasonable inference might be drawn that defendant still had contraband, although he intended to limit the location of his sales. The currency of the information could be fortified by the statement in the present tense that “the house looks like a drug store.” In the context of a crime which is continuing in nature a statement in the present tense takes on more significance. The majority view, particularly where a crime is of a continuing nature, is that use of the present tense may establish that the facts are sufficiently timely to amount to probable cause to search. See Annot., 100 A.L.R.2d 525, 533-34 (1965 and later supplements); but see 1 W. LaFave, Search and Seizure sec. 3.7, at 696-97.

People v. Holmes (1974), 20 Ill. App. 3d 167, is cited by the defendant for its holding that the “present tense” argument should be rejected (20 Ill. App. 3d 167,170); but note that Holmes and the case upon which it relied, Rosencranz v. United States (1st Cir. 1966), 356 F.2d 310, involved crimes which were not continuing in nature, with no reasonably specific clues to the time of their happening, and that in Holmes and Rosencranz the defective affidavits failed to provide the date when the information was received; here, the affidavits positively stated that the information relied upon by the State was received within the past three days.

We use the cited cases merely as illustrations of the fact that it is not clear that counsel would have been successful in pursuing the motion to suppress; or that the failure to make the motion demonstrated actual incompetence resulting in substantial prejudice without which the outcome would probably have been different. See, e.g., People v. Lewis (1981), 88 Ill. 2d 129,153-55.

II

We agree with the defendant’s contention that he was not convicted of the Class 4 felony charged, unlawful possession of more than 30 grams of a substance containing cannabis (Ill. Rev. Stat. 1979, ch. 56%, par. 704(d)), beyond a reasonable doubt.

Thomas Hughes, a forensic scientist for the Illinois Department of Law Enforcement, testified for the State as an expert. He said he weighed the substance on a scale, which he described as accurate to within l/100th of a gram, and found a total weight of 28.8 grams. After a field test in which he concluded that the plant material was cannabis he found that the substance then weighed 28.7 grams.

Officer Messer also testified for the State that he and another officer, Chief Brass, took it to “Gleichman’s Drug Store” to weigh it since the Rochelle police station lacked a gram scale. He testified that the proprietor showed him how to use the scale, he noted that it was an “electric gram scale,” that it used a counterbalance to achieve zero weight; that he calculated that, subtracting the weight of the three bags, which from his experience he concluded weighed 1 gram each, the weight was 35 grams. Chief Brass, however, testified that the pharmacist did the weighing and told the officers that the substance weighed 38 grams.

The State argues that where the testimony of witnesses is merely conflicting, reviewing courts will not set aside the verdict of a jury since they are the judges of credibility of witnesses, unless the evidence is so improbable as to raise a reasonable doubt of guilt. The State relies on People v. Yarbrough (1977), 67 Ill. 2d 222, 226, and People v. Akis (1976), 63 Ill. 2d 296, 298-99, both of which state the general rule. We find neither case apposite on the facts. Here, the issue is not whether competent evidence was conflicting, but whether the testimony of the officers was competent proof beyond a reasonable doubt which the jury could, in the exercise of its proper function, choose over the testimony of the State’s expert. Messer’s testimony that it was necessary for an employee of the pharmacy to show him how to use the pharmacy scale indicates itself a lack of personal skill; there was no testimony as to the accuracy of the scale or that Messer used it properly; and Messer merely estimated the weight of the bags, stating that “generally” they weigh 1 gram each. Chief Brass’ testimony cast doubt on the statement of Messer when he said that Messer in fact did not weigh the substance but rather the pharmacist did and “reported” that the weight was 38 grams. In contrast, the State’s expert, shown to be highly experienced and qualified, testified that the weight of the substance was 28.8 grams on a scale which was stated to be accurate within 1/lOOth of a gram. The State has the burden of establishing the essential elements of the crime beyond a reasonable doubt. (People v. Sanford (1962), 24 Ill. 2d 365, 368.) The foundation for Officer Messer’s testimony concerning the weight of the substance was not sufficiently proved in absence of testimony that verified the accuracy of the scale. (See People v. Rhoades (1979), 74 Ill. App. 3d 247, 253.) Brass’ contradictory testimony merely introduces the hearsay “report” of. the pharmacist if he were the one who actually weighed the substance. On the whole record we conclude that the testimony as to the element of weight presented by Officers Messer and Brass was so unsatisfactory and improbable as to raise a reasonable doubt of the guilt of possession of more than 30 grams of the substance; thus, the felony conviction cannot stand. However, the proof shows that defendant was guilty beyond a reasonable doubt of the misdemeanor of possession of less than 30 grams of a substance containing cannabis. The degree of the offense is, therefore, reduced to the Class A misdemeanor. Ill. Rev. Stat. 1979, ch. 56½, par. 704(c). See also People v. Robinson (1981), 92 Ill. App. 3d 397,400; People v. Baes (1981), 94 Ill. App. 3d 741, 744.

The defendant, alternatively arguing that he is entitled to a new trial, contends first that a non-IPI instruction was given as tendered by the State and constituted prejudicial error. He contends that the instruction

“Where contraband is found on premises possessed by and under control of defendant, such facts gives [sic] rise to inference that he had knowledge and possession of the contraband, which in turn is sufficient to sustain conviction for possession of the contraband, absent other facts and circumstances giving rise to a reasonable doubt”

is a mandatory one which tells the jury that proof of the finding of contraband on premises under the control of the defendant, even without proof that the contraband was in the possession of the defendant or there with his knowledge, is sufficient to convict; and that the last clause in the instruction “absent other facts and circumstances giving rise to reasonable doubt” could have been construed by the jury as not applying to possession and knowledge, thus changing the burden of proof and depriving the defendant of the presumption of innocence. The State contends that the language in the instruction was permissive and basically told the jury that possession and control of the premises was an important fact but not determinative, if they found “other facts and circumstances” gave rise to a reasonable doubt.

Instructions which require rather than permit jurors to presume guilt from given facts are invalid unless the connection between the evidentiary or basic fact and the elemental fact is accurate “in the run of cases.” (County Court v. Allen (1979), 442 U.S. 140,159, 60 L. Ed. 2d 777, 793, 99 S. Ct. 2213,2226. See also Sandstrom v. Montana (1979), 442 U.S. 510,526, 61 L. Ed. 2d 39, 52, 99 S. Ct. 2450, 2460; United States v. Romano (1965), 382 U.S. 136,139-40,15 L. Ed. 2d 210,212-13, 86 S. Ct. 279,281-82; People v. Housby (1981), 84 Ill. 2d 415, 424-25.) However, an instruction which makes it clear that a presumption is merely part of the State’s case giving rise to a permissive inference and which allows the jury to consider all the circumstances to support or contradict the inference, is constitutionally valid. County Court v. Allen (1979), 442 U.S. 140,160-62,60 L. Ed. 2d 777, 794-95, 99 S. Ct. 2213, 2226-27.

In Sandstrom v. Montana, an instruction to the effect that the law “presumes that a person intends the ordinary consequences of his voluntary acts” was struck down as mandating a conclusive presumption on the issue of intent, thus relieving the State of its duty to prove every element of the offense beyond a reasonable doubt. In People v. Housby, the instruction provided that if the defendant has exclusive possession of recently stolen property and there was no reasonable explanation of his possession “you may infer” that he obtained possession by burglary, was upheld by the Illinois Supreme Court. Sandstrom was distinguished by the fact that the use of “may” in Housby rather than “[t]he law presumes” which was struck down in Sandstrom was sufficient to advise the jury that the inference with which they were dealing was permissive and that they were free to decide whether to make use of it in judging Housby’s guilt. (People v. Housby (1981), 84 Ill. 2d 415, 432-33.) In People v. Nettles (1961), 23 Ill. 2d 306, the Illinois Supreme Court stated:

“We are of the opinion, therefore, that where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances * * (Emphasis added.) (23 Ill. 2d 306, 308-09.)

In People v. Lewis (1981), 88 Ill. 2d 129, 163, the Illinois Supreme Court upheld an instruction that stated that if defendant had exclusive possession of recently stolen property and there was no reasonable explanation of the possession “you may infer” that he obtained possession by armed robbery. The court held the instruction was clearly permissive and that when read together with the rest of the instructions it was clear that no rational jury could interpret the words “you may infer” to indicate that possession of stolen goods alone proved armed robbery or that it was an irrebuttable direction or that it shifted the burden of proof. 88 Ill. 2d 129, 163-64.

The non-IPI instruction which was tendered in this case was substantially a restatement of the quoted paragraph from Nettles. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09.) In fact, defense counsel first objected to this instruction and then withdrew his objection on the basis of Nettles. (23 Ill. 2d 306, 308-09.) The fact that the instruction in this case uses the phrase “gives rise to an inference” rather than the phrase “you may infer” approved in People v. Housby (1981), 84 Ill. 2d 415,433, and in People v. Lewis (1981), 88 Ill. 2d 129, 163, appears to us to make no significant difference as far as the understanding of a reasonable juror is concerned. The jurors were also informed that they were not to single out particular instructions, were to act as judges of the facts and should consider all the evidence in light of their own observations and experience, that the State must prove that the defendant “knowingly” had in his possession a substance containing cannabis, that defendant was presumed innocent of the charges and that this presumption remained throughout every stage of the trial and during deliberation and was not overcome “unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty,” that the State had the burden of proving guilt beyond a reasonable doubt and the burden remained on the State throughout the case and the defendant was not required to prove his innocence. Similar instructions referred to in Housby were given significance as assuring that the jury would not misunderstand the permissive nature of the inference instruction. People v. Housby (1981), 84 Ill. 2d 415, 434.

We do not approve the particular instruction given as a model of clarity. All doubt could have been avoided by an instruction which told the jury that it was free to credit or reject the inference suggested to it on the basis of the evidence. However, we do not find the instruction invalid as either resulting in an unconstitutional presumption or as changing the burden of proof.

Ill

The defendant also argues that he is entitled to a new trial because of what he claims are reversible errors arising from the prosecutor’s closing argument. In one instance the prosecutor argued that “when a person is arrested he is advised of his rights, it begins with the right to remain silent.” The defense counsel’s objection was sustained, as the prosecutor continued: “Mr. Speed did not say anything to the police.” Again defense counsel objected, noting that there was no evidence defendant had been given Miranda warnings. The judge cautioned the prosecutor at a bench conference, and the argument continued on another tack.

Unquestionably the direct reference to defendant’s post-arrest silence was error. (Doyle v. Ohio (1976), 426 U.S. 610, 634-36, 49 L. Ed. 2d 91, 106-07, 96 S. Ct. 2240, 2252-53; People v. Beller (1979), 74 Ill. 2d 514, 526. See also People v. Lucas (1981), 88 Ill. 2d 245, 254.) The real question is whether the error was harmless beyond a reasonable doubt. (See People v. Beller (1979), 74 Ill. 2d 514, 525-26.) We conclude that on the whole record it was.

In defense counsel’s closing argument he commented:

“It’s also uncontroverted that no one, no police officer asked her at any time whether that was Steve Speed’s cannabis or her cannabis. No one at any time asked Steve Speed whether that was his cannabis or her cannabis. Nobody asked either one of them at any time if part of it was hers and part of it was his. There is just absolutely no testimony.”

The prosecutor’s comment in rebuttal argument, although an impermissible comment under Doyle v. Ohio, appears to be an explanation of why the police did not ask Speed whether it was his cannabis or Miss Wright’s or partly his and partly hers. An argument that certain inferences can be drawn from post-arrest silence invites response. People v. White (1980), 88 Ill. App. 3d 788,792.

Defendant’s argument that defense counsel did not refer to defendant’s silence so that the prosecutor’s comment could not have been characterized as an invited response is not persuasive. The comment by defense counsel that no one asked defendant or Miss Wright whose cannabis it was creates the positive inference in the mind of the jury that the officers could have done so, when as a practical matter such answers could not have been pursued without Miranda warnings. Doyle v. Ohio does not give a defendant the right to falsely create an impression that the police could have determined who the possessor was by questioning, and then prevent the State from rebutting the inference so created. See United States v. Dixon (5th Cir. 1979), 593 F.2d 626, 630.

Moreover, the single reference indicates that the comment on defendant’s silence was not for substantive purposes or for impeachment of the theory of the defense, thus that the harmless error doctrine may be applied. (United States v. Dixon (5th Cir. 1979), 593 F.2d 626,630.) Compare Chapman v. State of California (1967), 386 U.S. 18, 25,17 L. Ed. 2d 705, 711, 87 S. Ct. 824, 829, where the jury was “continuously and repeatedly impressed” that from the defendant’s failure to testify the inferences from the evidence had to be drawn in favor of the State; Doyle v. Ohio (1976), 426 U.S. 610, 613-17, 49 L. Ed. 2d 91, 95-97, 96 S. Ct. 2240, 2242-44, where there was extensive cross-examination on the subject of silence; People v. Knippenberg (1977), 66 Ill. 2d 276, 287, where there were “repeated references” to a privileged statement made to counsel: and People v. Adams (1981), 102 Ill. App. 3d 1129,1133, where the prosecutor commented “at some length” on defendant’s silence when arrested, and strongly suggested that the defense of self-defense was fabricated because defendant would have otherwise told the officers that she so acted when she was arrested.

Moreover, the evidence that defendant was the possessor of the contraband was not closely balanced. It was found in a drawer in the buffet in the living room and on a tray in the bedroom in defendant’s apartment; and defendant’s act of breaking a glass smoking pipe when the officer began the search created the further inference of his knowledge and possession. The issue was not raised in a post-trial motion although the objection had been made at trial. Under the circumstances we do not find plain error. People v. Lucas (1981), 88 Ill. 2d 245, 251.

We also find no prejudicial error in the prosecutor’s comment that defense counsel could have called Miss Wright as a witness. This was an invited response to defense counsel’s argument that the State could have called this witness. (See People v. McElroy (1980), 81 Ill. App. 3d 1067, 1073-74.) Defendant’s further argument that he could not call Miss Wright because she would have invoked her privilege against self-incrimination is speculation which is not supported by the record. There is nothing to indicate that if called she would invoke the privilege (cf. People v. Cvetich (1979), 73 Ill. App. 3d 580, 584), or had already done so. See People v. Myers (1966), 35 Ill. 2d 311, 334.

IV

Defendant’s contention that he was deprived of the effective assistance of counsel has been partially responded to in connection with the issue of the alleged defect in the search warrant. Defendant has also contended that the failure to move for a directed verdict on the felony charge, the withdrawal of objection to the “inference” instruction, and the failure to move to strike prosecutor’s argument, the failure to'preserve any of the allegations of error in a post-trial motion, in total shows incompetence of appointed counsel. The State argues that defense counsel properly focused on the major issues, the weight of the cannabis and the lack of evidence of possession, and thus was not incompetent. We agree. As we have previously noted, incompetence of counsel must be established by proof that substantial prejudice results from counsel’s performance “without which the outcome would probably have been different.” (People v. Carlson (1980), 79 Ill. 2d 564,584-85; People v. Lewis (1981), 88 Ill. 2d 129,153-58.) On the whole record we consider that defense counsel was not shown to be incompetent.

The conviction and sentence for the Class 4 felony, possession of a substance containing cannabis over 30 grams, are vacated; conviction of defendant of the possession of a substance containing cannabis of more than 10 and less than 30 grams is entered. The case is remanded for resentencing of the defendant based upon the modified conviction.

Conviction modified in part and remanded for resentencing.

NASH and HOPE, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESLIE ELLIS PUGH, Defendant-Appellant.
    Second District
    No. 81-154
    Opinion filed June 4,1982.

      Mary Robinson and Josette Skelnik, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Eugene L. Stockton, State’s Attorney, of Dixon (Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Following a jury trial, the defendant, Leslie Ellis Pugh, was convicted of the offense of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)) and was sentenced to a 10-year term of imprisonment. On appeal, the defendant raises two contentions of error: (1) that he was denied a fair trial due to an alleged discovery violation on the part of the State which was revealed during the presentation of the State’s rebuttal evidence; and (2) that he was denied the effective assistance of counsel because his privately retained attorney failed to move for a mistrial following the State’s purported discovery violation, tendered an improper jury instruction, and failed to file a post-trial motion.

We summarize only the facts relevant to an understanding of the case and the issues raised on appeal. The basis of the State’s case against the defendant consisted of the eyewitness testimony of two teen-age employees, Sherry Dunseth, age 15, and Tim Klenz, age 14, who were working in a grocery store located in Dixon, Illinois, on the evening of March 23, 1980, at the time of the armed robbery. They testified that at approximately 9 p.m. two black men came into the store, walked toward the back where the dairy products were located, and came back to the counter with two bottles of apple juice. Dunseth was at the cash register dusting the counter and Klenz was nearby at that time. No one else was in the store. One of the two men handed her a paper sack and said he wanted the money. The other man, later identified by both witnesses as the defendant, opened his coat up and displayed a gun in his waistband. Neither of the two men were masked, and both were clearly visible to both witnesses. After the money was given to them, approximately $125 to $140, both men left after being in the store about three or four minutes. The police were then called. No one was apprehended that evening.

The two witnesses looked at mug shots later that night but could not identify anyone. Approximately three days later, Dixon police officer Robert Short showed them additional mug shots obtained from the Freeport Police Department and both witnesses identified defendant as the man with the gun. They then went to Freeport for a lineup at which time they also selected the defendant as the armed robber. The defendant was also identified at trial by both witnesses. Neither witness had ever seen the defendant before. They testified that the defendant now had facial hair and straighter hair, whereas on March 23, 1980, defendant had no facial hair and an afro-type hair cut.

Officer Robert Short testified as to his investigation of this armed robbery and the subsequent photo and lineup identification.

The defendant presented an alibi defense at trial in the form of the testimony of five witnesses who placed the defendant at confirmation services in St. Anne’s Catholic Church in Dixon during the time frame that the robbery occurred. In particular, Mrs. Helena Spotts testified that her daughters, Maria (Tina) and Francine (Nina), departed the church at 9:15 p.m. in the company of the defendant, who was Tina’s boyfriend, and Kaswick Lucas who was Nina’s boyfriend. Tina and Nina Spotts testified that, following the confirmation services, they drove directly home in the company of the defendant and Lucas and that all four of them remained in the Spotts’ home until the girls’ parents arrived there about 10 minutes later. Tina and Nina further said that the defendant had facial hair on March 23, 1980, and Tina also stated that she and defendant had been in the grocery store before when Sherry Dunseth was working. The testimony of the defendant and Lucas basically reiterated that of Tina and Nina Spotts as to their activities that evening during the time in question. In addition, both Lucas and the defendant denied visiting the scene of the burglary on that evening.

In rebuttal, the State called Officer Robert Short as a witness on the second day of trial. When the prosecutor asked the officer whether he had been in court at 11 or 11:30 that morning, defense counsel interposed an objection and asked for a hearing in chambers. During the ensuing conference in chambers, the State’s Attorney informed the court that the two eyewitnesses had observed Kaswick Lucas in the hallway of the courtroom earlier that morning and had told Officer Short that Lucas was the other individual who had participated in the robbery of the store. Counsel for the defendant objected at this point and requested that the prosecutor not be allowed to question the officer regarding this matter because the State’s Attorney had not laid a foundation for the impeachment of Lucas concerning his alibi testimony. In ruling on this objection, the court stated that while the jury could not be informed of the midtrial arrest of Lucas, the rebuttal witnesses would be allowed to testify to their identification of Lucas as one of the perpetrators. Counsel then objected generally to any testimony by the rebuttal witnesses.

After the resumption of the trial, the prosecutor removed Officer Short from the witness stand and then called Dunseth and Klenz as rebuttal witnesses. Thereafter, both witnesses related that while they were sitting outside the courtroom that morning, they observed Lucas in the hallway on the defendant’s side. Further, they identified Lucas as the other person who had participated in the robbery on the evening in question. According to Dunseth and Klenz, approximately a year earlier Officer Short had shown them an array of photographs, including one of Lucas. On that occasion they informed Short that Lucas looked like one of the robbers and they were almost positive that he was one of the offenders; however, they were not sure and hence were unable to make a positive identification of Lucas based on the “mug shot” alone. In addition, they testified that Short had told them not to select Lucas’ photograph unless they were positive of the identification and that if they were not able to make a positive identification, the police could not do anything. Also, Klenz stated that if Officer Short’s police report indicated that he had informed the officer that Lucas was not the other perpetrator, the report was incorrect, because he had actually informed Short that although Lucas looked like the defendant’s accomplice, he was not sure of the identification. Neither Dunseth nor Klenz had had occasion to view Lucas during the one-year period from the photographic session to the observance and identification of Lucas in the hallway on the second day of trial.

When recalled to the witness stand and upon refreshing his memory by examining his police report, Officer Short related that he had indicated in his report that Dunseth and Klenz had stated that Lucas was not the other suspect. He did not relate in his report that the witnesses were not sure of their identification of Lucas but rather that they informed him that Lucas was not the other offender. The officer further testified that, after viewing Lucas’ photograph, the two eyewitnesses had told him that Lucas looked like the other robber but they were not sure and could not make a positive identification. On the basis of the eyewitnesses’ statements to him, he eliminated Lucas as a suspect in his report. This report is not in the record and was never marked as an exhibit although it is referred to at trial by both the prosecutor and defense counsel.

The defendant’s first assertion on appeal is that the State committed a discovery violation which resulted in the denial of a fair trial when it provided in discovery a police report to the defense which contained a statement of the State’s two eyewitnesses which differed materially from the statements which the witnesses had actually given the police officer who prepared the report. More specifically, the defendant contends that the police report contained “an affirmative misrepresentation on a crucial matter.” In this regard the defendant points out that while the report stated that the occurrence witnesses (Dunseth and Klenz), after viewing an array of photographs including that of the defendant and Kaswick Lucas, told police officer Robert Short that Lucas was not the defendant’s accomplice, the two witnesses had, in fact, informed the officer that although Lucas looked like the other perpetrator, they were not sure or positive of the identification. Continuing, the defendant notes that Lucas testified as an alibi witness for the defense; he then posits that, due to the misrepresentation in the police report, he was denied a fair trial when Dunseth and Klenz positively identified Lucas at trial as the defendant’s accomplice, for the reasons that he was prevented from adequately investigating, confronting, and disputing the eyewitnesses’ identification of Lucas and was hindered in the preparation of his defense due to surprise.

While the defendant’s counsel interposed a general objection to all rebuttal testimony regarding the identification of Kaswick Lucas as the accomplice, there was no request for a mistrial or continuance, the specific discovery violation asserted here on appeal was not referred to in the trial below, and defendant failed to file a post-trial motion. The failure to file a written post-trial motion which would specify the claims of error operates as a waiver of those issues for appellate review. (People v. Thiel (1981), 102 Ill. App. 3d 28, 429 N.E.2d 565; People v. Smith (1981), 93 Ill. App. 3d 26, 416 N.E.2d 814; see People v. Tannenbaum (1980), 82 Ill. 2d 177,415 N.E.2d 1027.) When a claim of error has not been so preserved, it will only be considered by a reviewing court under the plain error doctrine set forth in Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)). The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091.) Additionally, it is the rule with respect to a purported discovery violation that the defendant must take affirmative action to remedy a supposed discovery violation by seeking a continuance or by requesting appropriate sanctions against the prosecution; otherwise a waiver will result. (People v. Nelson (1980), 92 Ill. App. 3d 35, 45, 415 N.E.2d 688; People v. Williams (1980), 91 Ill. App. 3d 631,633,414 N.E.2d 1235.) In our view, this case does not qualify as an exception to these rules.

Supreme Court Rule 412(a) (i) provides, in relevant part, that the State shall disclose the following information to the defense upon written motion:

“[T]he names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements.” (73 Ill. 2d R. 412(a)(i).)

In the case at bar, both the State and the defense filed motions for discovery, with the defendant’s motion containing a paragraph identical in language to that portion of Supreme Court Rule 412(a) (i) quoted above. The record reflects that the State certified it had answered the defendant’s discovery motion. It is also apparent from the record that Officer Short’s report was. furnished to the defendant; however, the police report itself is not in the record.

Generally, it is well established in criminal proceedings that the goals of the pretrial discovery provisions of Supreme Court Rule 412 (73 Ill. 2d R. 412) are to prevent surprise, unfairness, and inadequate trial preparation (People v. Bailey (1982), 103 Ill. App. 3d 503,505,431 N.E.2d 723; People v. Patterson (1981), 102 Ill. App. 3d 844,847,430 N.E.2d 574), thereby promoting the fact-finding process and eliminating the tactical advantage of surprise by either side. (People v. Childs (1981), 95 Ill. App. 3d 606, 613-14, 420 N.E.2d 513.) Thus, pretrial discovery affords the defense an opportunity to investigate the circumstances surrounding the making of any statements. (People v. Weaver (1980), 90 Ill. App. 3d 299, 305, 412 N.E.2d 1353, appeal allowed (1981), 83 Ill. 2d 574; People v. Young (1978), 59 Ill. App. 3d 254, 257, 375 N.E.2d 442.) Any errors in discovery documents should be tendered to the defense as soon as the prosecution has such knowledge. People v. Burgin (1979), 74 Ill. App. 3d 58, 72, 392 N.E.2d 251.

The case at bar does not present a situation where the State failed to convey a police report or other statement of a witness to the defendant in the discovery process. Rather, here the State did comply with the defendant’s discovery request and furnished Officer Short’s police report to defense counsel. Also, it is apparent that the present case does not involve intentional or deliberate misleading tactics on behalf of the State designed to preclude the discovery of relevant material regarding the substance of the eyewitnesses’ identification statements concerning Kaswick Lucas. In addition, this case is not illustrative of a situation where inadvertence or neglect on the part of the State in not disclosing a police report hindered the defendant in preparation of his defense. (See People v. Wilken (1980), 89 Ill. App. 3d 1124, 412 N.E.2d 1071.) The record reflects that the State certified, well in advance of trial, that it had presented an answer to the defendant’s motion for discovery. Defense counsel could have interviewed the above witnesses to ascertain the substance of the eyewitnesses’ statements and reactions during the viewing of the array of photographs. In fact, the record does not indicate that defense counsel was surprised by the testimony, that he viewed it as significant enough to warrant a motion for continuance or new trial, or even that he considered it a discovery violation.

Under the circumstances of this case, we do not conclude that the plain error rule can be invoked. The fact that defense counsel claimed no surprise or made any motion for continuance or for a new trial is an indication that the inaccuracy of the police report may not have hindered him in preparation of the defense of the case. Also, he adequately cross-examined Officer Short on the difference between the officer’s version of the statement of the witnesses as contained in his report and their actual statement to him. Although the police report itself is not in the record, the references to it lead us to conclude that it was not intended to be a statement in the witnesses’ own words or a substantially verbatim statement which is the normal type of statement contemplated to be discovered pursuant to Rule 412(a)(i). (See People v. Mireles (1979), 79 Ill. App. 3d 173,195, 398 N.E.2d 150; People v. Witherspoon (1979), 69 Ill. App. 3d 391, 397, 388 N.E.2d 1.) It is inevitable that inaccuracies may occur in summarizing another’s statement, and here the lack of precision, although not to be condoned, still alerted the defendant far in advance of trial that Kaswick Lucas had been considered a suspect. There is no evidence of an intentional misstatement by the police officer of the witnesses’ statement or any withholding of information by the prosecutor. Where prejudice is not shown by virtue of inaccurate discovery material, a new trial will not be ordered. (People v. Outlaw (1979), 75 Ill. App. 3d 626, 644, 394 N.E.2d 541; People v. Burgin (1979), 74 Ill. App. 3d 58, 72, 392 N.E.2d 251.) The evidence was not closely balanced here as the defendant was identified by two eyewitnesses; nor was the misstatement in the police report under all the facts here of such magnitude that the accused was denied a fair trial. Accordingly, we do not find this an appropriate case to invoke the plain-error rule.

The defendant’s second and final contention on appeal is that he was denied the effective assistance of counsel when his privately retained attorney (1) failed to move for a mistrial following the State’s alleged discovery violation, (2) tendered a jury instruction which, the defendant asserts, shifted the burden of proof to the accused, and (3) failed to file a post-trial motion. Accordingly, he maintains that he is entitled to a new trial.

With respect to the question of the alleged ineffective assistance of counsel, the defendant must establish that his privately retained attorney was actually incompetent and that this incompetence produced substantial prejudice to the defendant without which the jury’s verdict would probably have been different. (People v. Lovitz (1981), 101 Ill. App. 3d 704,710,428 N.E.2d 727; People v. Talley (1981), 97 Ill. App. 3d 439,443, 422 N.E.2d 1084; People v. Scott (1981), 94 Ill. App. 3d 159, 163, 418 N.E.2d 805; see People v. Greer (1980), 79 Ill. 2d 103,120-21, 402 N.E.2d 203.) Competency is determined from the totality of counsel’s conduct at trial, and a defendant is entitled to competent, not perfect, representation. (People v. Ortiz (1981), 96 Ill. App. 3d 497, 503,421 N.E.2d 556.) Errors in judgment or trial strategy do not establish incompetency. (People v. Murphy (1978), 72 Ill. 2d 421, 437, 381 N.E.2d 677.) The manner and extent of investigation in preparation for trial, of necessity, is to be determined within the discretion of counsel, and whether defendant received effective assistance of counsel must be determined from the record. People v. Williams (1976), 63 Ill. 2d 371, 373, 349 N.E.2d 14.

In this case, trial counsel’s totality of performance reflected preparation and thorough familiarity with the case. He cross-examined the State’s witnesses, highlighting inconsistencies and memory lapses. In presenting the defendant’s evidence, he refuted material aspects of the State’s case as well as offering affirmative evidence of alibi. His closing argument emphasized and attacked the credibility of the State’s witnesses and analyzed improbabilities in the State’s case.

Trial counsel’s decision to proceed with the case rather than to seek a new trial when confronted with the midtrial identification of Lucas as the accomplice was a choice within the realm of trial strategy. He did object generally to all rebuttal testimony relating to the identification of Lucas as the accomplice in an effort to thwart the use of such testimony. Faced with the court’s adverse ruling, he may well have concluded that it was more advantageous to the defendant to proceed with the trial and attempt to draw the inference that if the two witnesses were unsure of their identification of Lucas one year before trial they could also be mistaken in their identification of the defendant at trial. In view of all the evidence at trial, defense counsel may have believed that the better defense strategy was to proceed with the trial under that evidence. The two youthful eyewitnesses had been ably cross-examined as to their physical descriptions of the two robbers on the night of the occurrence as contrasted with the contrary description given by several defense witnesses; the defense had presented numerous witnesses placing the defendant at another location at the time of the robbery; the defense had presented impeachment evidence to rebut Sherry Dunseth’s testimony that she had never before seen the defendant; and the midtrial identification of Lucas was argued to be an attempt to bolster a previous unsure identification of Lucas. Whether the evidence upon a new trial would have been more favorable is only conjecture. The fact that Mr. Spotts did not approve of the defendant and did not testify might affect the willingness of the other members of his family to testify in a retrial in view of the identification of Lucas, who was his other daughter’s boyfriend, as the accomplice. Competence of trial counsel should be judged from the totality of his conduct at trial, not on the basis of what appellate counsel might have done in his stead. (People v. Nutall (1980), 91 Ill. App. 3d 758, 767, 415 N.E.2d 628; People v. Ruple (1980), 82 Ill. App. 3d 781, 786, 403 N.E.2d 129.) In this case, trial counsel’s decision to proceed with the case in light of all the evidence elicited, favorable and unfavorable, rather than seek a new trial, was one of trial strategy, and under the totality of the circumstances, did not amount to incompetency of counsel.

The second basis upon which the defendant relies in support of his assertion that his trial counsel renderéd ineffective assistance relates to defendant’s instruction No. 2, a non-IPI Criminal instruction, which was given to the jury without objection. That instruction provided as follows:

“In deciding whether any fact has been proved, it is proper to consider the number of witnesses testifying on one side or the other as to that fact, but the number of.witnesses alone is not conclusive if the testimony of the lesser number is more convincing.”

The defendant’s contention here is'twofold: (1) that the instruction at issue, in effect, shifted to the defendant the burden of proving his innocence; and (2) that the instruction allowed the jury, “in determining whether the State had produced sufficient evidence to establish the defendant’s guilt beyond a reasonable doubt, to consider the fact that the prosecution had more witnesses than the defense and to give greater weight to the prosecution’s evidence by virtue of that fact.”

Defendant’s instruction No. 2 is not contained in IPI Criminal, but rather is an instruction in Illinois Pattern Instructions, Civil (2d ed. 1971) (IPI Civil No. 2.07) and used in civil cases. (See Hardware State Bank v. Cotner (1973), 55 Ill. 2d 240, 302 N.E,2d 257; Johnson v. Equipment Specialists, Inc. (1978), 58 Ill. App. 3d 133, 373 N.E.2d 837; Pozdro v. Dynowski (1967), 83 Ill. App. 2d 79,226 N.E.2d 377.) It is not a burden-of-proof instruction. (Department of Business & Economic Development v. Baumann (1972), 9 Ill. App. 3d 1, 291 N.E.2d 213.) Although several dated cases have considered similar instructions which comment on the number of witnesses testifying (see People v. Oswald (1930), 340 Ill. 434,172 N.E. 819; People v. Casino (1920), 295 Ill. 204,129 N.E. 145), these cases were decided long before pattern jury instructions were adopted in criminal cases, and the omission in IPI Criminal 2d of any instruction on this subject is an indication the jury should not be instructed thereon. We do not believe that such an instruction pertaining to the number of witnesses is appropriate especially in criminal cases where the State would ordinarily be expected to have more witnesses. It is the province of the jury to pass upon the credibility of the witnesses, and an instruction on the number of witnesses may well be misleading.

In the instant case, although we believe the trial court should not have given the instruction even at defendant’s request, we do not believe that under the circumstances the instruction caused any harm to the defendant which would indicate incompétence of counsel. In the present case, although the State presented more witnesses than the defendant at trial, the State only presented two witnesses who testified to the fact that the defendant was in the grocery store between 9:05 and 9:15 on the evening in question and robbed the store. On the other hand, the defendant offered the testimony of five alibi witnesses, including himself, regarding his whereabouts during the 10-minute span. Four of those witnesses also testified that the defendant did not visit the scene of the crime that evening during the time frame at issue. Thus, the defense actually presented more witnesses regarding the crucial factual issue of the defendant’s whereabouts and actions on the evening in question. Accordingly, the instruction at issue inured to the benefit of the defendant, not to his detriment.

Nor do we believe the instruction shifted to the defendant the burden of proving his innocence. The trial court gave IPI Criminal No. 2.03 (1968) on the presumption of innocence and the State’s burden of proof. The jurors were also given the general instruction to follow all the instructions and not single out certain instructions disregarding others. Instructions must be viewed in the context of the entire charge. (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) Accordingly, under the facts here defense counsel cannot reasonably be viewed as incompetent in tendering this instruction.

The third ground which the defendant claims established ineffective assistance of counsel was his trial attorney’s failure to file a post-trial motion preserving the discovery violation and instructional issues for appellate review. While it is true that defense counsel did not file a post-trial motion in the case at bar, it is equally manifest that this failure does not establish ineffective assistance of counsel, because, as explained above, the two issues in question do not constitute meritorious assignments of error. (See People v. Ortiz (1981), 96 Ill. App. 3d 497, 505, 421 N.E.2d 556; People v. Cohen (1980), 83 Ill. App. 3d 706, 710, 404 N.E.2d 976.) Considering the totality of counsel’s conduct, we conclude that defendant was competently represented.

Affirmed.

VAN DEUSEN and NASH, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERMAN GIBSON, Defendant-Appellant.
    Fourth District
    No. 17581
    Opinion filed June 3,1982.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

The question we determine here is whether it is error for a trial court to order restitution as part of the sentence under a negotiated plea agreement, without first holding a presentence hearing. We hold that such a hearing is not mandated.

On August 27, 1981, defendant, Sherman Gibson, entered a negotiated plea in the circuit court of Sangamon County, to the offenses of robbery and battery. The plea was accepted by the court after defendant was properly admonished and defendant was sentenced to concurrent terms of probation of 3 years for the robbery conviction and 1 year for the battery conviction and ordered to pay court costs. Additionally the court ordered as conditions for the probation for robbery that defendant serve 72 days in jail and make restitution in the amount of $495. On appeal defendant contends the trial court erred when it imposed as a condition of probation the requirement that defendant pay restitution without first engaging in the statutory mandated procedures which govern the imposition of restitution.

Under section 5 — 6—3(b) (9) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3(b)(9)), the court may, as a condition of probation, require that a defendant:

“make restitution in an amount not to exceed actual out of pocket expenses or loss proximately caused by the conduct of the defendant. The court shall, in a pre-sentencing hearing, determine the amount and conditions of payment.”

Defendant contends that because no presentencing hearing was held the court could not have possessed information regarding the actual loss to the complaining witness or defendant’s financial ability to compensate for any loss. Defendant, however, agreed to the imposition of restitution as part of the plea agreement, and he also orally waived the right to a sentencing hearing.

None of the cases cited by either party deal with the situation at hand where a defendant enters into a negotiated plea of guilty, waives a sentencing hearing, and is ordered to pay restitution. However, in other cases dealing with the necessity of a formal sentencing hearing where a negotiated plea is employed, courts have held such a hearing is not mandated. In People v. Barto (1976), 63 Ill. 2d 17, 344 N.E.2d 433, the supreme court stated that the provisions of the Unified Code of Corrections dealing with presentencing reports and sentencing hearings (Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 3—1,1005—4—1) do not preclude the knowing and voluntary waiver of a sentencing hearing by a defendant. The court stated no meaningful purpose would be served by a formal sentencing hearing where there is a negotiated plea and defendant waives the hearing. See also People v. Cooper (1975), 33 Ill. App. 3d 367, 342 N.E.2d 413.

By analogy to Barto, we conclude that no meaningful purpose would have been served by holding a sentencing hearing here where the plea was negotiated. Furthermore, we find that defendant has waived any right to such a hearing by failing to demand one below. Barto; People v. House (1981), 98 Ill. App. 3d 304, 424 N.E.2d 412.

Accordingly, the sentence of the circuit court is affirmed.

Affirmed.

WEBBER and MILLS, JJ., concur.


author: JUSTICE TRAPP

text:
      In re ESTATE OF ADRIENNE ENRIGHT, Deceased.—(PEOPLE’S BANK OF BLOOMINGTON, Ex’r and Trustee of the Estate of Adrienne Enright, Petitioner-Appellee, v. NANCY BLOTCKY et al., Respondents-Appellants.)
    Fourth District
    No. 16976
    Opinion filed May 27, 1982.
    John P. Harris, of Gomez, Feuerbach, May & Pries, of Davenport, Iowa, for appellants..
    Herbert M. Livingston, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellee.
    Anthony Hart, of Bloomington, guardian ad litem.
   JUSTICE TRAPP

delivered the opinion of the court:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) from an order of the circuit court of McLean County which provided that income produced during the period of probate from property of the estate of Adrienne Enright could be used to satisfy claims and debts of the estate, including estate taxes, Illinois inheritance tax, executor fees, and attorney fees.

On December 3, 1978, Adrienne Enright died, leaving a will the operative provisions of which provided for several specific bequests, with the residue of the estate to be paid to the People’s Bank of Bloomington as trustee for several income beneficiaries for life, with the remainder to the descendants of the income beneficiaries. Included in the residue was 555 acres of farmland in McLean County. The trustee during the period since the death of the testatrix took possession of this land and as of November 1,1980, reported income of $29,515.19. Claims against the estate including inheritance tax, Federal estate tax, and executor and attorney fees and legacies totaled approximately $580,770. On October 17, 1979, People’s Bank as executor petitioned the trial court for the sale of a portion of this land to satisfy the aforementioned items. After the proceeds of the sale were applied, a deficiency of $127,760 still existed. On November 6,1980, a supplemental petition was filed in the trial court seeking a further order from the court to sell additional tracts of the farmland and to apply the income received from the property toward the payment of the claims and other expenses. On December 18, 1980, the trial judge issued an order providing that the income produced from the property passing, to the residuary testamentary trust could be applied toward payment of those expenses. The trial judge concluded that section 18 — 14 of the Probate Act (Ill. Rev. Stat. 1979, ch. llCBá, par. 18 — 14) makes probate income subject to the claims of the estate and that the provisions of the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, pars. 159 through 176) apply only after payment of costs of administration and death taxes. The court found that our decision in In re Estate of Sawyer (1972), 7 Ill. App. 3d 944, 288 N.E.2d 633, was distinguishable from the facts in the case at bar. A motion for certification of a question of law was made on January 12, 1981, granted on February 5, 1981, and on April 7, 1981, this court granted the respondent’s petition for leave to appeal.

This appeal presents for our resolution the sole question of whether income beneficiaries of a residual testamentary trust are entitled to income produced from probate property or whether such income may be used to satisfy expenses specified in section 18 — 14 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110M, par. 18 — 14), to wit: claims against the estate, expenses of administration, estate and inheritance taxes and legacies. While we have found no cases which address this precise issue, we believe the principles of our decision in Sawyer control the disposition of this case and conclude that section 18 — 14 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110M, par. 18 — 14) is subject to the provisions of section 5 of the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, par. 163), which requires that debts, funeral expenses, estate taxes, spouse and child awards and fees of attorneys and personal representatives and court costs shall be charged against the principal, and not the income, of a residuary testamentary trust.

Respondents, income beneficiaries under the residuary testamentary trust, contend on appeal that sections 18 — 14 and 24 — 3 of the Probate Act (Ill. Rev. Stat. 1979, ch. IIOÍ2, pars. 18 — 14, 24 — 3), and section 5 of the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, par. 163), together with this court’s decision in Sawyer, establish their right to the probate income from property used in discharging debts of the estate. Though nowhere does it appear in the records before this court whether the remaining property (farmland) would be sufficient, aside from the income therefrom, to liquidate all outstanding claims, we assume that a sale of the property would be sufficient to take care of these costs. A different result would be necessitated if the residuary estate was not sufficient.

Section 18 — 14 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110%, par. 18 — 14) provides:

“All the real and personal estate of the decedent and the income therefrom during the period of administration are chargeable with the claims against the estate, expenses of administration, estate and inheritance taxes and legacies without distinction except as otherwise provided in this Act or by decedent’s will and may be leased, sold, mortgaged or pledged as the court directs in the manner prescribed in this Act. In determining what property in the estate shall be leased, sold, mortgaged or pledged for any purpose provided in this Section, there is no priority as between real and personal estate, except as provided in this Act or by decedent’s will.” (Emphasis added.)

On the basis of this statute the trial judge concluded that the income produced from the farm could be used to satisfy the expenses of administration and other claims against the estate. This court in Sawyer had occasion to interpret the provisions of this statute. In Sawyer, the devisee of oil and gas interests objected to the executor’s final accounting which indicated that the income produced from these interests was used to satisfy costs of administration. This court held that while section 207 of the Probate Act (Ill. Rev. Stat. 1965, ch. 3, par. 207, now Ill. Rev. Stat. 1979, ch. 110%, par. 18 — 14) provided for all real and personal estate, and probate income to be charged with claims, expenses of administration, estate and inheritance taxes, this paragraph was superseded by section 291(d) of the Probate Act (Ill. Rev. Stat. 1965, ch. 3, par. 291(d), now Ill. Rev. Stat. 1979, ch. 110%, par. 24 — 3) which requires payments from principal and income to be accounted for under the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, par. 163). Under that Act, the devisee of property specifically devised is required to be paid income which accrues on the property during the period of probate. The court therefore concluded that the executor was required to account to the devisee for the income thus earned.

Respondents, along a similar line of reasoning, argue that while section 18 — 14 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110%, par. 18 — 14) makes probate income subject to estate claims, section 24 — 3 of the Probate Act (Ill. Rev. Stat. 1979, ch. 110%, par. 24 — 3) requires that payments made from principal and income be in accordance with the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, par. 163). Under that Act expenses of administration, estate taxes and fees of attorneys and personal representatives should be charged against principal, and are not to be charged against income accruing during the period of probate. We agree with respondents and conclude that section 18 — 14 of the Probate Act (Ill. Rev. Stat. 1979, ch. llOM, par. 18 — 14) is subject to section 24 — 3 of the Probate Act (Ill. Rev. Stat. 1979, ch. IIOJ2, par. 24 — 3) which further requires that payments on final distribution be made in accordance with the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, par. 163). Under that Act the income beneficiaries are entitled to the probate income unreduced by expenses of administering the decedent’s estate, estate taxes and fees of attorneys and personal representatives. We also note that the distinctions drawn by the trial judge between Sawyer and the case at bar are not persuasive. While it is true that the recipient of the property and the income in Sawyer was the same person, while here the income beneficiaries and the remaindermen are different people, this seems to us to be distinction with little difference. Further, the fact that the result in Sawyer was to benefit a specific devisee over the class of residuaries, while in the case at bar all those concerned are of the same class, i.e., residuaries, seems also to be an insignificant difference.

While the necessary result of this decision is to reduce the corpus of the testamentary trust established out of the residue, this will also have the effect of providing more immediate income for those beneficiaries who are the prime objects of the testator’s bounty as against the ultimate beneficiaries, who, in the case at bar, were composed of an indeterminate class, to wit: the heirs of the life tenants. Moreover, paragraph h of the testatrix’s will provided that the trustees were to determine in accordance with the laws of the State, i.e. (the Principal and Income Act), the allocation of all receipts and disbursements between income and principal. Application of the Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, par. 163) to the case at bar could hardly be said to defeat the intention of the testatrix. Had she wanted to provide for a different procedure as to the use of probate income, the Principal and Income Act allows wide latitude in this regard. The Act is not mandatory where the will provides otherwise (see Ill. Rev. Stat. 1979, ch. 30, par. 160).

We note in passing that the Restatement (Second) of Trusts section 234, comment (g), states: “Income received by the executor during the period of administration * * *, which has not been applied to the payment of interest on such legacies, debts and expenses, is payable to the trustee, and when received by him is payable to the beneficiary entitled to income.” (Restatement (Second) of Trusts sec. 234, comment (g) (1959).) While this comment indicates that the executor would have discretion in using the probate income, we find no provision in the Illinois Principal and Income Act (Ill. Rev. Stat. 1979, ch. 30, pars. 159 through 176) which grants such discretion to the executor, but instead find language in the Act stating that “* * * all other expenses incurred in connection with the settlement of the decedent’s estate, including debts, funeral expenses, estate taxes, spouse and child awards and fees of attorneys and personal representatives and court costs shall be charged against principal.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 30, par. 163.) In the absence of a contrary direction in the will of the testatrix, or an applicable statute, we conclude that section 5 shall govern the determination of distributable income.

For the foregoing reasons, the order of the trial court providing that the income produced during the period of probate from the property comprising the residuary trust may be used to satisfy claims and debts of the estate, including the estate taxes, executor’s fees and attorney fees is reversed, and the trial court is directed, upon final distribution of the estate to require the trustee to pay this money to the income beneficiaries of the testamentary trust established under the will of Adrienne Enright.

Reversed and remanded with directions.

WEBBER and LONDRIGAN, JJ., concur.