author: JUSTICE HOPF JUSTICE LINDBERG,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY LEE BOLAR, Defendant-Appellant.
    Second District
    No. 80—963
    Opinion filed September 21, 1982.
    LINDBERG, J., dissenting.
    Frank P. Vella, Jr., of Rockford, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Paula R. Johnson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

The defendant, Terry Lee Bolar, was charged by information with the crime of reckless homicide (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3). He was convicted of this offense having waived his right to trial by jury and proceeding to trial before the trial court. He maintains on appeal that his conviction should be reversed because it was not proved beyond a reasonable doubt (1) that the victim was an individual within the contemplation of the statute; (2) that he was intoxicated at the time of the offense; or, (3) that his intoxication was the cause of the accident which served as the basis of the conviction. We affirm.

In the early morning hours of May 3, 1980, Timothy and Kelly Oswald were driving to their home in Rockford, Illinois. Timothy was driving and Kelly was seated in the front passenger seat. At that time Kelly Oswald was somewhat more than eight months pregnant.

When the Oswald’s vehicle entered the intersection of 20th Street and 12th Avenue, it was struck on the driver’s side. The defendant, Terry Bolar, failed to stop for a stop sign located at 12th Avenue. His vehicle struck the Oswald’s vehicle at a speed in excess of 30 miles per hour.

Kelly suffered some minor lacerations and abrasions and experienced abdominal pain. She and her husband were taken to Rockford Memorial Hospital.

The Rockford police arrived at the intersection shortly after the accident. At trial Officer Miller testified that he had noted “a very strong odor of alcoholic beverage” on the defendant. He also testified that the defendant was “staggering,” and made several unsolicited statements to the effect that he had had only “a couple of beers.” The defendant had fallen asleep while in the squad car and again during the bonding procedures at the police station. Officer Kaske testified to substantially the same observations and that the defendant’s speech was slurred and eyes watery and bloodshot. Both testified that in their opinion defendant was intoxicated.

In the meantime Kelly Oswald was treated in the emergency room at Rockford Memorial Hospital. Monitoring the fetal heart disclosed that the baby’s heartbeat was strong. Kelly Oswald at that time was released by the emergency room staff and joined her husband who was being treated in another room. Some time later, the record being unclear as to the exact time, Mrs. Oswald’s abdominal pains worsened. While walking with her parents in the hospital she commenced to bleed vaginally and was placed under the hospital’s care again. She was placed in the high risk obstetrical ward at about 4:30 a.m. The fetal heart monitor at that time registered a fetal heart rate of 140 beats per minute which was considered normal.

Dr. McHugh, Kelly Oswald’s physician who was ministering to her obstetrically, was summoned to the hospital. He testified that upon his arrival at the hospital at approximately 5 a.m. the fetal heartbeat was 140 beats per minute. By 6:45 a.m. the fetus’ heartbeat had fallen to 115 beats per minute and Dr. McHugh called in a consultant. While the consultant was examining Kelly Oswald the baby’s heart rate dropped off “even more dramatically.”

Kelly Oswald’s condition was diagnosed as placenta abruptio, i.e., the separation of the placenta from the uterine wall. When the placenta is separated from the uterine wall prematurely the fetus’ oxygen supply is cut off. Dr. McHugh testified that a fetus would expire if placental separation were complete enough.

Approximately 7:50 a.m. the doctors performed a cesarean section on Kelly Oswald. At 8 a.m. the fetus was removed from her uterus. At this time the baby was handed to Nurse Sally Craig by Dr. McHugh. Dr. McHugh was acting as the pediatrician attending the baby at that time. Nurse Craig had previously been instructed by Dr. McHugh to determine the heartbeat to see if they should proceed with resuscitation measures. Nurse Craig at that point measured the heartbeat and based upon a timing over a 15-second period established that there was a rate of about 50 heartbeats per minute, and they were “regular and faint.” She advised Dr. McHugh of the heartbeat and to go ahead with resuscitation measures at that time. The infant was flaccid, did not move and made no apparent effort to breathe. Oxygen was administered and the doctors attempted to “resuscitate” the infant. After two minutes, Nurse Craig again measured the heart rate. She heard “two beats slow and then three little like a flutter beat, and then it stopped.” Dr. McHugh continued to resuscitate while Nurse Craig passed the stethoscope to another nurse standing there who stated she could hear “nothing.” The stethoscope was then passed to Dr. McHugh, and at that time resuscitation efforts were stopped. The infant was pronounced dead shortly after 8 a.m.

Several physicians offered expert testimony at trial. Dr. McHugh based his opinion upon his knowledge of Kelly Oswald’s pregnancy, the circumstances of the collision, and his observation during the cesarean section, and stated that the placental separation could have been caused by the impact. He also testified that in his opinion the infant, Misty Oswald, had been “born alive” as that term is defined by the Vital Records Act (Ill. Rev. Stat. 1979, ch. 111½, par. 73 — 1 et seq.) and that he certified the birth accordingly. He testified that he had operated under the definition of live birth as set forth in said act for years. He further testified that he would have registered the infant as a live birth had there been but a single heartbeat.

Dr. McHugh testified that based upon the “Apgar Scale” he assessed Misty’s condition as a one. He testified that the “Apgar Scale” is an assessment procedure used by physicians to gauge the vitality of newborn infants. Dr. McHugh explained that within one minute of birth an attending physician observes the color, pulse, respiration, temperature and muscle tone of a newborn, and, based upon these indications, assigns an “Apgar Scale” score on a scale of one through 10. An “Apgar Scale” of 10 would indicate good health, while a rating of eight or nine would be applied to an infant who is “very blue but pulling well.” An “Apgar” score or five of six is associated with compromised respiration and signals “serious trouble.” In the case of Misty Oswald, the only hint of life was a slow, faint pulse, and consequently Dr. McHugh had assigned her an “Apgar” of one.

During cross-examination, Dr. McHugh noted that a fetus’ heartbeat could continue after partial separation of the placenta from the uterine wall. He also testified that upon physical separation from the mother a newborn supports its separate circulatory system through respiration. Dr. McHugh also indicated that a heartbeat could occur in the absence of any brain activity. He further testified that, in his opinion, this baby’s brain was irreversibly damaged at the time of her birth.

Dr. William Rouse, the pathologist who performed the autopsy, also testified for the State. He stated that he found no evidence of internal or external abnormalities in the infant’s physical development. He concluded that the cause of death was hypoxia, a deficiency of oxygen. In Dr. Rouse’s opinion, this condition was caused by the accident.

Testimony was adduced concerning the medical standard which defines death as a demonstrable absence of brain activity as set forth under the Uniform Anatomical Gift Act (Ill. Rev. Stat. 1979, ch. 110½, par. 302). Dr. Rouse testified that a heartbeat may exist in a newborn despite the absence of brain activity. He also testified that the presence or absence of brain activity could not be deduced from the fact that the infant exhibited some heart action. However, had the infant demonstrated both a heartbeat and any one of the other “Apgar” factors, Dr. Rouse testified that he would have concluded that she had demonstrated “brain life.”

Dr. Seward, the coroner of Winnebago County, testified. He testified he was a general practitioner of some years experience having delivered over 600 children. In response to a hypothetical question he testified, based upon what he understood to be commonly accepted and contemporary medical standards, that the baby was born alive. Further, when inquired of as to the criteria of the Vital Records Act his testimony was that “since there was a noted heartbeat, that would be defined as a live birth.” He further gave an opinion that because there was a “detection of heartbeats” there would be an independent circulatory system.

On re-cross-examination Dr. Seward was asked a hypothetical question, which, in part, assumed a definition of live birth to be as follows: “That the fetus must survive long enough to be born and take a single breath — .” The hypothetical also assumed that there were no respiratory impulses detected. The doctor answered: “Using those standards, the child would be dead — .” He added, however, if such definition were used, there would be a lot of babies walking around that would have been dead, for it was common that babies do not have spontaneous respiration and you have to resuscitate them, but they have heartbeats.

The State took the position that the infant had died as a result of a prenatal injury and that the defendant was criminally liable for that injury due to the fact that “life had persisted after the delivery of the child.” The State urged the trial court to find that the Vital Records Act provides a legislative definition of life for the purposes of our Homicide Statute. The defendant, in turn, emphasized “brain life” claiming that that standard was both medically workable and afforded a more rational basis for criminal liability.

Defendant offered no expert medical testimony except that of Dr. Rouse, who was recalled.

The trial court found the defendant guilty of reckless homicide. He found that the defendant had driven at an unreasonable speed, through a marked stop sign, while intoxicated and that these acts constituted reckless acts. The court relied upon the testimony of the expert witnesses, noting that Dr. McHugh based his opinion of what constitutes a live birth upon the Vital Records Act and that Dr. Seward went beyond this and that according to common medical practice felt there was a live birth notwithstanding the Vital Records Act. The court noted the defense’s position of the applicability of the Uniform Anatomical Gift Act and rejected this standard. He ruled that the Vital Records Act’s definition of live birth which includes the heartbeat is the Illinois definition of live birth and is also applicable to criminal law. The court noted that there was more than just one faint heartbeat, and under the factual situation presented in the case before him he was of the opinion there was a live birth. The defendant was sentenced to one year of periodic imprisonment.

The defendant basically raises two issues on appeal. First, he contends that the trial court erred in finding that the infant, Misty Oswald, was an individual within the meaning of the Illinois involuntary manslaughter and reckless homicide statute (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 3), which provides in relevant parts:

“(a) A person who unintentionally Mils an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful wMch cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recMessly, except in cases in which the cause of the death consists of the driving of a motor vehicle, in which case the person commits recMess homicide.”

Defendant also claims that the State failed to prove beyond a reasonable doubt that he was intoxicated and that his intoxication resulted in a recMess act. The first issue presents a question of first impression in the State of Illinois: whether a newborn who, at the time of delivery, exhibits only a few heartbeats which decline in rate and then terminate .within minutes is to be considered to have been an individual under the provisions of our involuntary manslaughter and recMess homicide statute. We note that the legislature recently amended the Criminal Code of 1961 to include the offense of feticide. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1.1.) However, this act came into effect more than nine months after the defendant’s conviction. The new act would, in a close case, allow for prosecutorial discretion in the charging of a crime, yet we still are confronted with the issue as to what constitutes being born alive.

The" common law, as well as Illinois law, is quite clear; a child cannot be the subject of a homicide unless it is born alive and expires as a result of the injuries previously sustained. (People v. Greer (1980), 79 Ill. 2d 103, 111, 402 N.E.2d 203; 3 Coke, Institutes *50; 1 Blackstone, Commentaries *129-30; 1 Hales, Pleas of the Crown 433 (1800).) Both of these elements, i.e., being born alive and death as a result of a criminal agency, must be proved beyond a reasonable doubt. (People v. Ryan (1956), 9 Ill. 2d 467, 138 N.E.2d 516.) In the case before us it seems quite clear that the second element was proved beyond a reasonable doubt. The infant, Misty Oswald, died of hypoxia as a result of a placental separation proximately caused by the reckless act of this defendant. The controversy in this appeal centers upon whether the record justifies a finding that the infant was, beyond a reasonable doubt, born alive. The trial court basically agreed with the State’s theory that the Vital Records Act (Ill. Rev. Stat. 1979, ch. 111½, par. 73 — 12) embodies the definition of live birth. The Vital Records Act has a requirement that every live birth occurring within the State is to be registered with the State authorities. (Ill. Rev. Stat. 1979, ch. 111½, par. 73 — 12.) Live birth as defined by the Act occurs when a fetus is separated from its mother and “breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles ***.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 111½, par. 73— 1(5).) The defense urges a theory which conditions the finding of live birth on the presence of brain activity a standard roughly based upon the Uniform Anatomical Gift Act (Ill. Rev. Stat. 1979, ch. 110½, par. 302).

It appears that the common law would require that a child be completely delivered and have established an existence which is separate and independent from that of the mother. See, for example, R. v. Caroline Burns (1863), 57 Cent. Cr. Ct. 585; State v. Winthrop (1876), 43 Iowa 519; Morgan v. State (1923), 148 Tenn. 417, 256 S.W. 433; Meldman, Legal Concepts of Human Life: The Infanticide Doctrines, 52 Marq. L. Rev. 105 (1968); 1 Blackstone, Commentaries *129-30.

Necessarily, focus would be on the presence of some mechanical bodily function as an indicator of life. The resolution of these physical factors as to whether they determine there was life is a question for the trier of the fact. Criminal liability is conditioned upon whether the infant survived long enough to manifest the required bodily function. We are aware of the anomalous result which may obtain from such a focus, however, American courts including our own supreme court have in the absence of specifically inclusive statutory language unanimously refused to abandon this born alive rule in criminal cases. (See People v. Greer; State v. Brown (La. 1979), 378 So. 2d 916; State v. Larsen (Utah 1978), 578 P.2d 1280.) The anomaly persists whether we require a heartbeat, brain activity or breathing as a predicate for criminal liability.

In Keeler v. Superior Court (1970), 2 Cal. 3d 619, 627, 470 P.2d 617, 87 Cal. Rptr. 481, 485, 621, it was stated:

“Of these decisions, some pointed out that evidence of breathing is not conclusive because that function may begin before the infant is fully born (Poulton, Enoch, Sellis), while others observed that the infant can possess an ‘independent circulation’ — one of the tests used to determine live birth — even though the umbilical cord may not yet be severed (Reeves, Tril loe). But all were in agreement that however live birth was to be proved, unless that event had occurred before the alleged criminal act there could be no conviction of homicide.” (Emphasis added.)

Is it necessary to establish certain criteria which would serve as the basis upon which it is determined that life exists separate and apart from the mother? We think not. There appears to be a pitfall in each of the customary criteria used to signify life. However, a live birth must be proved before a conviction may be had. Therefore this should remain a fact question for the trier of fact to determine upon his evaluation of all the facts and circumstances surrounding the birth.

Defendant’s contention that brain activity be required for a finding of live birth is a luxury that is impossible to afford. Testimony at trial indicated that this could only be conclusively established through use of an electroencephalogram. Though no testimony was adduced we believe that constraints of time, availability of equipment, and incompatability with life-saving measures renders this requirement totally impractical.

In Morgan v. State (1923), 148 Tenn. 417, 420-21, 256 S.W. 433, 434, the court held, in discussing if a child is born alive, that “[i]t cannot be the subject of a homicide until it has an existence independent of its mother. It is usually said that the umbilical cord must have been severed, and an independent circulation established.” Here, the unrebutted evidence establishes that after the umbilical cord was severed this child’s heart continued to beat and circulate her blood for approximately two minutes. There was testimony that after the birth the child had a regular heartbeat of 50 per minute. Dr. Seward testified on direct examination that the child had established an independent circulatory system because of its heartbeat. Medical testimony indicated at this moment the child had an existence independent of its mother, as fragile as it might be. The fact that the infant expired within moments thereafter is irrelevant. Greer, which is distinguishable from the case before us because it is concerned with an unborn fetus, stated that the child need only survive for a few moments, “long enough to be born and take a single breath” for the defendant to have committed a homicide. People v. Greer (1980), 79 Ill. 2d 103, 111, 402 N.E.2d 203.

Here, the trial court, acting as a finder of fact, found that the child was born alive. It had expert medical testimony establishing that fact. The three doctors testifying did not testify that the child was still-born, but was born live. There was no rebuttal of medical testimony. In People v. Powell (1978), 72 Ill. 2d 50, 65, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 59 L. Ed. 2d 455, 99 S. Ct. 1215, it was stated:

‘[WJhere a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and, unless it can be said that the court’s judgment is found to rest on doubtful," improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. (People v. West, 15 Ill. 2d 171.)’ People v. Clemons (1962), 26 Ill. 481, 484. This rule is well settled in Illinois. (See People v. Jones (1975), 60 Ill. 2d 300, 307; People v. Fleming (1971), 50 Ill. 2d 141, 145.)”

Here the trial court saw and heard the witnesses. It found the evidence was sufficient to establish that the infant, Misty Oswald, was born alive. We do not disturb that finding.

The other contentions of the defendant are that there was not proof beyond a reasonable doubt of the reckless acts alleged, nor that he was under the influence of intoxicating liquor, and that there was no proof that the degree of intoxication and evidence affected his ability to drive.

“However, a charge of reckless homicide may be justified by a combination of excessive speed and other circumstances which would indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to others, and the circumstances are such that a reasonable person would act differently under the same situation. (People v. Boner (1964), 54 Ill. App. 2d 74, 78, 203 N.E.2d 633, 634, 635.)” (People v. Bonzi (1978), 65 Ill. App. 3d 927, 931-32, 382 N.E.2d 1300, 1303.)

One such “circumstance” is that the accused was intoxicated at the time of the incident. (65 Ill. App. 3d 927, 932.) There was ample evidence from two Rockford police officers as to defendant’s intoxication. Here the trial court found that prior to the collision defendant had been driving at “an unreasonable” rate of speed, that he drove through a marked stop sign without stopping or slowing down, and that he had been intoxicated. Those findings are entitled to great deference by a court of review. (People v. Jones (1981), 98 Ill. App. 3d 489, 492-93, 424 N.E.2d 683.) The record supports the trial court’s finding that the May 3, 1980, collision was caused by the defendant’s reckless acts. Once again, it saw the witnesses testify and judged their credibility and we see nothing in the record to upset its ruling. People v. Powell (1978), 72 Ill. 2d 50, 65, 377 N.E.2d 803, cert. denied (1979), 440 U.S. 907, 59 L. Ed. 2d 455, 99 S. Ct. 1215.

Affirmed.

VAN DEUSEN, J., concurs.

JUSTICE LINDBERG,

dissenting:

My admiration for the majority’s exposition of the common law applicable to this case is exceeded only by my astonishment at their refusal to apply it. In affirming the conviction in this case, the majority acquiesces in the trial court’s express application of a standard derived from a totally irrelevant public health statute.

Illinois law dictates the application of the principles of the common law in this case. The use of those principles is consistent with the policies underlying the Criminal Code of 1961 as well as the analytical approach to this question taken in People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.

The commentators to the Criminal Code of 1961 noted that:

“[T]he supersession of all common-law definitions of particular offenses does not mean that the large mass of interpretive rules developed under the common law is superseded: these rules are a highly valuable part of our criminal law, and their effective replacement by statutory law would be exceedingly difficult.” Ill. Ann. Stat., ch. 38, par. 1 — 3, Committee Comments, at 13 (Smith-Hurd 1972).

Likewise, in People v. Greer, our supreme court ultimately relied upon common law principles to determine whether an unborn fetus could be an “individual” for the purposes of a homicide prosecution, thus rejecting the State’s invitation to “create a new offense” by judicial fiat. Although as the majority comments, the facts in Greer are distinguishable, the reasoning of the. supreme court in applying the common law is sound and persuasive in this case. I would adhere to the common law definition of live birth as it pertains to the offense of reckless homicide. Under that definition, the proof offered by the State of a few transitory heartbeats is insufficient to establish live birth and thus, is insufficient to sustain the conviction.

The great weight of the common law requires that in order to establish a live birth for the purposes of a criminal prosecution, it must be shown that the newborn be completely delivered and have established an existence which is separate and independent from that of the mother. Generally, it has been held that such an independent existence is shown beyond a reasonable doubt where an infant survives long enough to take a breath. People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203; Morgan v. State (1923), 148 Tenn. 417, 256 S.W. 433.

Far from conclusively establishing independent existence, the heartbeat exhibited by Misty Oswald is utterly consistent with the dependant existence of a fetus in the womb. It is well known that a fetus exhibits regular heart action in the very early stages of pregnancy. (Gray, Anatomy of the Human Body 28, 536 (29th Am. ed. 1973).) The heart action testified to by the medical experts in this case is readily ascribable to the residuum of the mother’s support. The heartbeat standing alone seems to provide no particular indicia of nonfetal life and nonfetal life is an indispensable element of the corpus delicti in this case. Conversely, breathing is an action completely inconsistent with and unnecessary for fetal life.

“Although slight but regular instinctive movements of the thoracic walls, are stated to occur in the enwombed foetus, breathing as a function is quite novel. It is called for by the actual or functional detachment of the after-birth from the womb *** ‘Le besoin de respirer’ [the need to breathe] evokes the first breath of life.. Reflex or automatic attempts *** are initiated under this ‘stimulus of necessity.’ ” Atkinson, Life, Birth & Live-Birth, 20 L.Q. Rev. 134, 153 (1904).

Testimony adduced at trial confirms that respiration is necessary to support an independent existence. The record also reveals that although oxygen was administered and resuscitation attempted, these measures were to no avail. No discernible inflation of the lungs was noted and muscle tone was lacking. The only evidence before the court indicated that, at birth, the infant exhibited a heart rate of 50, a rate well below that normally found in newborns. In the absence of any other indicia of independent existence I am constrained to conclude that these few heartbeats are insufficient evidence by which to establish beyond a reasonable doubt that Misty Oswald was born alive.

While apparently acknowledging the applicability of the common law to this case, the majority endorses the trial court’s express reliance on a completely different standard. This standard was derived from a civil provision, with no regard either for the purpose of that provision or for the context into which it was being interposed. The Vital Records Act is clearly a civil enactment. Nothing on the face of the statute indicates that it was intended for use as a criminal standard. No court in Hlinois has ever before suggested such an application. E.g., People ex rel Gage v. Siman (1917), 278 Ill. 256, 115 N.E. 817.

The majority comments that a trial court acting as finder of fact may weigh the evidence before it and that unless the resulting judgment rests on doubtful, improbable, unsatisfactory, or clearly insufficient evidence, that judgment should be affirmed. The majority notes that the trial court’s finding in this case is consistent with the testimony presented by the medical experts. However, the opinions relied upon by the trial court centered for the most part on whether the infant had been born alive for purposes of certification under the Vital Records Act.

In stressing the trial court’s ability to weigh the evidence, the majority seems to have overlooked the dual role occupied by a judge during a bench trial. In such a situation, the trial judge is the tribunal compelled to determine what the facts are and he is also the magistrate required to lay down correctly the guiding principle of law. See Palmer House Co. v. Otto (1952), 347 Ill. App. 198, 106 N.E.2d 753.

Once the supreme court has declared the law on a subject, it alone can overrule or modify that rule. (Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906.) Our institutional function as an intermediate appellate court is to follow the decisions of our supreme court, and to decide such cases in conformity with logical extensions of those rulings. People v. O’Neal (1976), 40 Ill. App. 3d 448, 352 N.E.2d 282, cert. denied (1977), 431 U.S. 969, 53 L. Ed. 2d 1065, 97 S. Ct. 2929; Doxtater v. State Farm Mutual Automobile Insurance Co. (1972), 8 Ill. App. 3d 547, 290 N.E.2d 284.

In my opinion the supreme court has ruled that the common law standard should be determinative in cases of this type. The trial court erred in its application of the Vital Records Act to this case, and the decision of the majority compounds that error.


source: Caselaw Access Project

author: JUSTICE LONDRIGAN

license: Public Domain

text:
      In re APPLICATION OF SYLVIA BASHORE, COUNTY TREASURER AND EX-OFFICIO COLLECTOR OF LIVINGSTON COUNTY.-(Midwest Land Development Corporation, Petitioner-Appellee, v. Albert Baldwin et al., Respondents—(Borden, Inc., et al., Intervening Petitioners-Appellants).)
    Fourth District
    No. 4—82—0015
    Opinion filed September 21, 1982.
    Richard J. Berry, of Myers, Daugherity & Berry, Ltd., of Streator, for appellant Borden, Inc.
    Edward F. Kelly, of Drendel & Kelly, of Streator, for appellant Streator National Bank.
    David R. Gray, of Chicago, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Petitioner, Midwest Land Development Corporation, brought an action March 21, 1980, seeking the issuance of a tax deed to property-located in Livingston County. Petitioner had purchased the property October 17, 1977, for the amount of unpaid 1976 taxes.

Pratt, one of the joint owners of the subject property, attempted to redeem the property. Petitioner filed a petition to set aside the purported redemption November 17, 1980. The case continued without much progress until November 17, 1981, when Borden, Inc., and the Streator National Bank filed a motion for leave to intervene and a response to petitioner’s petition to set aside the redemption. Both intervenors had recently acquired and recorded judgments against Albert Baldwin, the other joint owner of the property in question. Baldwin had been served with the proper notice under sections 263 and 266 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, pars. 744, 747). Baldwin has never appeared in the proceedings.

A hearing was held on the interveners’ motion December 7, 1981. The trial court denied the motion to intervene, holding that neither intervenor had a sufficient interest in the litigation to justify intervention of right or by permission. The trial court made the necessary section 304(a) finding (73 Ill. 2d R. 304(a)), and this appeal followed.

Two issues are raised on appeal: (1) whether a judgment lien arising after the expiration of the right to redeem from a tax sale gives the lien creditor a right to intervene in a proceeding brought by a tax sale purchaser seeking issuance of a tax deed; and (2) if the lien creditor does not have a right to intervene, did the trial court abuse its discretion in denying leave to intervene pursuant to section 26.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26.1(2)).

Intervention of right is governed by section 26.1(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26.1(1)). Section 26.1(1) provides:

“Upon timely application anyone shall be permitted as of right to intervene in an action: (a) when a statute confers an unconditional right to intervene; or (b) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (c) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or an officer thereof.”

A party need not have a direct interest in the pending suit in order to intervene, but it must stand to gain or lose because of “the direct legal operation and effect of a judgment in the suit.” (Caterpillar Traetor Co. v. Lenckos (1981), 84 Ill. 2d 102, 112, 417 N.E.2d 1343, 1349; In re Appointment of Special State’s Attorneys (1976), 42 Ill. App. 3d 176, 356 N.E.2d 195.) In In re Appointment of Special State’s Attorneys, the chairman of the county board sought to intervene, as an individual, in a suit brought by the State’s Attorney to obtain an order compelling the county board to hire part-time State’s Attorneys. The trial court denied the chairman’s petition to intervene. The denial of intervention was upheld on appeal. The court stated that a petitioner seeking intervention rniist have something more than a general interest in the outcome of the litigation; he must have an enforceable or recognizable right. The petitioner had alleged that he might be subject to a contempt citation if the county board refused to comply with a court order requiring that additional State’s Attorneys be hired and that this gave him an interest in the litigation. The appellate court rejected petitioner’s claim as speculative and hypothetical, therefore not falling under section 26.1.

Intervenors admit in their brief that Midwest was not obligated to join them as parties in the proceeding below after their judgment liens arose. The parties do not dispute that, should Pratt redeem the property, petitioners’ judgment liens will be enforceable against the subject property. However, petitioners may not redeem the property themselves because they obtained the judgments too late. Their judgment liens are enforceable against the subject property only if Pratt prevails in the case at bar and then elects to redeem. Furthermore, while a judgment in favor of Midwest in the present action will, cut off all judgment liens in the subject property, petitioners will still have their judgments against Baldwin and a lien against any real estate he may own.

It is true that if Midwest’s petition to set aside the purported redemption is granted, intervenors may find it somewhat more difficult to collect the full amount of their judgments from Baldwin. However, we find this argument to be analogous to the arguments raised in United Steel Workers of America, Local 5292 v. Bailey (1975), 29 Ill. App. 3d 392, 329 N.E.2d 867. The petition in Bailey sought to recover fines against certain of its members who defied the union’s order to strike. Petitioner, the union members’ employer, sought to intervene, contending that if a judgment were rendered against the employees, the employees would be less likely to refuse to strike, thus affecting petitioner’s ability to remain in business. The Second District rejected this argument, stating:

“This contract is the subject matter of the main action. Petitioner is not a party to the contract, nor has petitioner alleged an enforceable or recognizable right under the contract. The interests claimed by petitioner are general interests which, if allowed to be asserted in this action, might, depending upon the holding, be advantageous to petitioner at some future date. Such interests do not entitle petitioner to intervene as a party defendant. [Citations.] The rights asserted by petitioner will not be brought into question by the factual basis underlying the main action nor will the asserted rights be adjudicated by the main action. Intervention of the petitioner would, in fact, inject new issues of law and fact not present or necessary to a determination of the union’s case.” 29 Ill. App. 3d 392, 394, 329 N.E.2d 867, 869.

If intervenors were allowed to intervene and Pratt were to prevail, then this might result in an advantage to intervenors when they seek to collect on their judgments against Baldwin. This does not, however, entitle intervenors to intervene in the proceeding below. Bailey.

Petitioners contend that because of the possibility of a settlement between Midwest and Pratt, Pratt’s representation of their interest may be inadequate. However the petitioners are powerless to prevent a settlement between Midwest and Pratt should those parties choose to make such an agreement. We do not interpret section 26.1(1) as requiring intervention where the outcome of the litigation may damage petitioners’, interests but where petitioners can do nothing to protect those interests even if intervention is allowed. The trial court properly denied intervention in this case.

Intervenors argue that the trial court erred in denying leave to intervene pursuant to section 26.1(2) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 26.1(2)). Section 26.1(2) provides: “Upon timely application anyone may in the discretion of the court be permitted to intervene in an action: (a) when a statute confers a conditional right to intervene; or (b) when an applicant’s claim or defense and the main action have a question of law or fact in common.” Pratt’s claim is based upon a right of redemption against Midwest; intervenors’ claim is a judgment lien against Baldwin. These claims do not have a common question of law or fact.

The decision of the trial court allowing or denying permission to intervene will not be disturbed unless a clear abuse of discretion is shown. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Harris Trust & Savings Bank (1978), 63 Ill. App. 3d 1012, 380 N.E.2d 835; Ackmann v. Clayton (1976), 39 Ill. App. 3d 1013, 350 N.E.2d 824.

We conclude that the decision of the trial court denying permission to intervene did not amount to an abuse of discretion.

The judgment of the circuit court of Livingston County is affirmed.

Affirmed.

GREEN, P. J., and MILLS, J., concur.


author: JUSTICE HARTMAN JUSTICE DOWNING,

text:
    DEBORAH CURTIS, a Minor, by Donald Curtis, her Father and Next Friend, et al., Plaintiffs-Appellants, v. THE COUNTY OF COOK et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81—1774
    Opinion filed September 21, 1982.

      DOWNING, J., concurring in part and dissenting in part.
    Wildman, Harrold, Allen & Dixon, of Chicago (Kevin T. Martin and Kay L. Schichtel, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Myra J. Brown and Jeffrey M. Marks, Assistant State’s Attorneys, of counsel), for appellee County of Cook.
    Aries, Hoyt & Williams, of Chicago (Harvey J. Cohen, of counsel), for appellee Village of Westchester.
    Dore & Clark, Ltd., and Ronald A. Parizek & Associates, Ltd., both of Chicago (Cornelius F. Dore, William G. Clark, Jr., and Ilene M. Davidson, of counsel), for appellee Village of Hillside.
   JUSTICE HARTMAN

delivered the opinion of the court:

On August 28, 1980, plaintiffs filed a second amended, six-count complaint (complaint), seeking damages from defendants, County of Cook (Cook County), village of Hillside (Hillside) and village of Westchester (Westchester) in each count. Hillside and Westchester moved to dismiss the complaint and Cook County moved for judgment on the pleadings, each pursuant' to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), which the circuit court granted. Plaintiffs appeal, raising the principal issue of whether plaintiffs’ complaint is legally sufficient.

Count I of the complaint is brought by Deborah Curtis, then age 16, through her father and next friend, Donald Curtis. That count alleges, inter alia, the following facts: On June 30, 1978, at 11 p.m., Theodore H. Spieker, then age 18, operated a motor vehicle westerly on 22d Street about one-half mile west of Wolf Road, accompanied by plaintiff Deborah" Curtis, a passenger. Spieker drove his auto on the north shoulder of the four-lane highway, where it struck a traffic standard, causing injury to Curtis. Defendants Cook County, Hillside and Westchester had selected, placed, and maintained the sign with which the vehicle collided. Defendants were negligent in that they: failed to erect and maintain “break-away” poles at the aforesaid location; acquired, erected and placed a speed-limit sign of wood and steel, creating a dangerous condition to vehicles on the highway; and, erected the speed-limit sign near the highway, creating a dangerous condition to vehicles which might enter the shoulder of the road.

In count II, also brought by Deborah Curtis through Donald Curtis, plaintiffs further alleged that: The speed-limit sign was constantly and repeatedly used as a “quarter-mile” post by teenage and young adult drivers for the purpose of clocking vehicles moving in the quarter-mile distance at speeds which greatly exceeded' the legal limit. Spieker was using the speed-limit sign for that purpose when he lost control of his vehicle, causing it to be operated on the shoulder of the road, where it struck the speed-limit sign. Defendants negligently: (a) failed to patrol the area of the accident for certain drivers who would use the speed-limit sign as a clocking quarter-mile post; (b) knew or should have known that the area and sign were so used, but failed to remove or replace the sign; (c) failed to install speed-control equipment; (d) placed and permitted the speed-limit sign to remain in its position, when they knew or should have known that it would be used to clock speeds of automobiles; (e) failed to patrol the area of the accident during specific times when the area was likely to be frequented by drivers using the sign to clock their speeds; and (f) permitted a dangerous condition to remain on the highway when they knew it was being used as a quarter-mile post by certain drivers.

Counts III and IV are causes of action on behalf of Deborah Curtis’ father individually to recover medical and hospital expenses, incorporating by reference the allegations of counts I and II respectively. Counts V and VI allege independent causes of action on behalf of both Deborah Curtis’ parents for the loss of the aid, society, comfort and companionship of their minor daughter.

I

With respect to counts I and III of the complaint, plaintiffs argue that a jury should be allowed to decide whether the wooden post on which the speed limit sign was mounted should have been replaced with “break-away” or yielding metal posts, citing O’Connell v. Chicago & North Western R.R. Co. (1940), 305 Ill. App. 430, 27 N.E.2d 644, and Stern v. International Ry. (1917), 220 N.Y. 284, 115 N.E. 759. In both cases verdicts were upheld against defendants where plaintiffs were injured as the result of colliding with obstructions, a steel girder and electric power pole, respectively, each of which stood in the middle of the roadway. In neither case was the suitability of the material of which the obstruction, girder or pole was made at issue; rather, the conflicts involved the propriety of their placement.

More in point is Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368. There, plaintiffs sued the manufacturer of an exit signpost, claiming it should have been designed as a breakaway post, as in the instant case. With reference to a count sounding in strict liability, the supreme court stated:

“[Plaintiffs have alleged no legally cognizable defect in the signpost. They have merely indicated a preference for ‘breakaway’ posts. However valid that preference might be, the availability of an alternative design does not translate into a legal duty in products liability. *** Here, there is no allegation of a defect in the post which affected its intended or actual use — to safely support the sign. The risks which inhered in the collision with the post were the same risks which attend all collisions between motorists and stationary objects which align the highway.” (74 Ill. 2d 203, 212.)

Here also plaintiffs have alleged no legally cognizable defect in the signposts. The dismissal of counts I and III must therefore be affirmed.

II

Considering next count II, it essentially alleges: defendants were negligent in failing to correct an unsafe condition on their roadway; the placement of the speed-limit post created a dangerous condition of which defendants had actual knowledge or should have known, in that drivers repeatedly used the sign post as a quarter-mile marker while clocking their speed (“speed clocking”); defendants should have alleviated the danger in moving the sign closer or farther from the intersection; and defendants should have patrolled the area at the specific times when they knew certain drivers were using the sign for clocking their speed.

Local municipal entities have a duty to maintain their property in a reasonably safe condition (Ill. Rev. Stat. 1977, ch. 85, par. 3 — 102), which extends beyond their mere physical upkeep. When a municipality adopts a plan or design for improvements of public property, the Local Governmental and Governmental Employees Tort Immunity Act, after exculpating the governmental unit from liability generally provides (Ill. Rev. Stat. 1977, ch. 85, par. 3 — 103(a)):

“The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that it is not reasonably safe.” (Emphasis added.)

Here, according to the allegations of count II of the complaint, well-pleaded allegations of which, for the purposes of the motions, must be taken as true (Johnson v. Franzen (1979), 77 Ill. 2d 513, 522, 397 N.E.2d 825; Johnston v. City of Bloomington (1979), 77 Ill. 2d 108, 111, 395 N.E.2d 549), defendants allegedly had actual notice of the fact that their placement of the speed-limit post permitted young people to continue to utilize the sign in their speed clocking activities, thereby creating and maintaining a dangerous condition.

Illinois courts have identified a duty owed by defendants in comparable circumstances. In Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 181, 251 N.E.2d 227, the city was held responsible for injuries resulting from an accident caused by improper placement of streetlights. As here, no issue was raised regarding installation or maintenance of the lights; rather, the conflict arose over their location. The court stated, “when a city creates a hazardous condition and someone is injured as a consequence it must respond in damages, just as others are required to do.” (43 Ill. 2d 177, 181.) The foregoing ratio decidendi was again adopted by the supreme court in Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205, in a somewhat similar factual setting. In Porter v. City of Decatur (1974), 16 Ill. App. 3d 1031, 307 N.E.2d 440, the court upheld a complaint alleging the city was negligent in allowing an intersection traffic light to continue its ordinary sequence of signals notwithstanding its previous arrangement with the National Guard to allow the passing of one of its caravans without regard to the operation of the established signals.

Defendants argue Baran, Greene and Porter are inapposite since they involve accidents which were the result of ordinary and foreseeable use of the streets, whereas in the instant case the accident occurred because the driver lost control of his vehicle while “speed clocking.” In support of their argument they rely upon Boylan v. Martindale (1982), 103 Ill. App. 3d 335, 431 N.E.2d 62, Hoffman v. Vernon Township (1981), 97 Ill. App. 3d 721, 423 N.E.2d 519, Harding v. Chicago Park District (1975), 34 Ill. App. 3d 425, 339 N.E.2d 779, and Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590. In Boylan, plaintiff’s incompetent was a passenger in an automobile which collided with another in an intersection and which thereafter struck a wooden utility pole located off of but nearby the paved roadway. Plaintiff there claimed the city of Elmhurst was negligent in permitting the placement of the pole in such a dangerous position, among other allegations of negligence. The court upheld the dismissal of this charge since there was no foreseeability that travelers would deviate from the roadway and strike the utility pole, an understandable position, particularly in light of the secondary collision involved in Boylan. Here, plaintiffs allege defendants’ actual knowledge of the continuous dangerous use being made of the speed-limit sign. It cannot be said here that loss of control and collision with an object was a reasonably unforeseeable consequence under the facts alleged, as a matter of law. In Hoffman, the plaintiff brought an action against Commonwealth Edison Co. when plaintiff’s vehicle struck a utility pole maintained by Edison after it had gone out of control off the road. The court there also held no duty existed between the plaintiff and Edison, as such an accident was not reasonably foreseeable, in that the plaintiff did not foreseeably deviate from the road in the ordinary course of travel. The court noted that no evidence of prior accidents was introduced which might have given defendant notice of a dangerous condition, in contrast to the instant case, wherein defendants were alleged to have actual knowledge of speed-clocking activities in the immediate vicinity of the instant accident involving the very sign at issue.

In Harding and Deren it was held that municipalities were not responsible for unorthodox use of their streets of which they had notice: in Harding plaintiff’s decedent was killed by a vehicle which was drag-racing on park district property; in Deren, plaintiff was struck by an automobile while he was walking on the roadway. In neither case, however, was it alleged that the municipalities’ adoption of a plan resulted in increased hazard to plaintiffs. In fact, in Harding, the park district took various measures to prevent drag-racing. In the instant case it is alleged that defendants’ placement of the sign was conducive to speed clocking.

An analogous situation is found in Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472, in which the supreme court found that a negligence complaint against a housing authority stated a cause of action where it alleged that plaintiff’s injuries which resulted from an assault at 1:15 a.m. in the authority’s housing project were proximately caused by the authority’s negligence in increasing the risk of crime at that hour by terminating security-guard service at 1 a.m. The court found that in providing such service, the housing authority was obligated to use reasonable care not to create increased dangers, especially where it had notice thereof. (82 Ill. 2d 313, 317.) Here, too, defendants may be liable for a situation of their own creation and maintenance of which they are alleged to have had actual knowledge.

Defendants argue that Spieker’s conduct was, as a matter of law, an intervening act superseding defendants’ negligence, so that their negligence could not constitute the proximate cause of Curtis’ injuries. An intervening act of a third party may supersede a defendant’s negligence when that act is unforeseeable. (Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497.) In Neering, plaintiff alleged she was assaulted by one of the vagrants which were allowed to loiter on defendant’s property, a train station. Defendant there claimed it bore no responsibility for plaintiff’s injuries, which were caused by the conduct of the vagrants. The supreme court held, however, that defendant could have reasonably anticipated the complained of act and upheld a verdict for plaintiff. Here, also, a jury could find the actions of Spieker reasonably foreseeable by defendants under the circumstances alleged by plaintiff.

Defendants also cite Brisks v. Village of Burnham (1942), 379 Ill. 193, 39 N.E.2d 976, and Carr v. Shirland Township (1978), 66 Ill. App. 3d 1033, 384 N.E.2d 449, for the rule that when a defendant’s negligent acts or omissions do nothing more than create a condition under which an accident was possible, and that condition causes an accident by the independent conduct of a third party, the actions of that third party are considered to be the true proximate cause of the injury. The cases cited by defendants, however, are inapposite, since in contrast to the incident at bar, the intervening conduct in each of the cases cited was unique and unpredictable. Here, the continuing act of using the sign as a base for speed clocking is the precise knowledge with which defendants are charged.

Plaintiffs further allege in count II that defendants negligently failed to post patrols or install speed-control equipment in the area, and argue on review that defendants owed a duty to enforce the speed restriction laws on 22d and Wolf Road. While acknowledging the general rule that public entities are not liable for failure to enforce ordinances or prevent illegal conduct (see Gillan v. Hanna (1972), 6 Ill. App. 3d 18, 284 N.E.2d 448), they rely on the exception to the general rule that public entities are liable where they owe a special duty of care to the plaintiffs, as contrasted with the public at large. The circumstances at bar do not fall under the special duty exception, however. In order for a municipality to owe a special duty toward an individual as contrasted with the public at large, the following requirements must be met: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. (Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970, 414 N.E.2d 104.) Here, even assuming plaintiffs could have met the first three requirements, they have made no allegations which would lead to a conclusion that Curtis’ injuries occurred while she was under the direct control of the county. But cf. Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147.

From the foregoing, the dismissal of those allegations in count II which asserted defendants’ negligence in having failed to remove or change the location of the sign as a dangerous condition of which they knew or should have known by reason of its continuing use as a quarter-mile marker must be reversed and remanded for trial. The dismissal of those allegations related to failure to enforce speed control laws was correct, however, and must be affirmed.

Count IV is an action by Donald Curtis, individually, as a parent of Deborah Curtis, which seeks compensation for medical and hospital expenses he has and will incur as a result of defendants’ alleged negligence set forth in count II, which he incorporates by reference. A parent may maintain such an action in Illinois. (See Graul v. Adrian (1965), 32 Ill. 2d 345, 205 N.E.2d 444; Kennedy v. Kiss (1980), 89 Ill. App. 3d 890, 412 N.E.2d 624.) Since the allegations of negligence in count IV track those set forth in count II, our ruling is the same relative to each theory articulated in count IV.

Ill

With regard to counts V and VI of the complaint, plaintiffs argue that Deborah Curtis’ parents should be allowed to recover damages for the loss of her society and companionship during her minority, contrary to the common law rule that they may only recover for the loss of Deborah’s services or wage earning capacity during the remainder of her minority. Plaintiffs maintain that the common law rule reflects the archaic view that children are merely economic assets, and should be changed by this court to recognize the modern view of children as a source of companionship. They cite Shockley v. Prier (1975), 66 Wis. 2d 394, 225 N.W.2d 495, which upheld such a cause of action. Plaintiffs also cite Stephens v. Weigel (1948), 336 Ill. App. 36, 82 N.E.2d 697, in which the court held that the father and husband of the injured daughter and wife was entitled to assert a claim for consequential damages arising from his payment of their medical and hospital expenses, and for the loss of their services and society. The issue of the parent’s cause of action for loss of his child’s society and companionship was not addressed in the Stephens decision. Other jurisdictions overwhelmingly support the view that parents may not recover for the loss of a minor child’s society and companionship. (See Annot, 69 A.L.R.3d 553, 555 (1976).) We are in agreement with those determinations.

In Koskela v. Martin (1980), 91 Ill. App. 3d 568, 414 N.E.2d 1148, a child was precluded from recovering for loss of services, companionship, society, and affection of her injured father. The court there acknowledged that Illinois is moving toward protecting family interests and is recognizing new causes of action toward that end; however, the action contended for there would be best provided by the legislature, as with actions for wrongful death and alienation of affection. The intangible nature of the loss is not readily quantifiable in damages; the allowance of the cause could result in overlap recovery, increased litigation and multiple claims. The reasoning of Koskela is equally applicable to the converse question presented at bar of whether a parent may recover for the loss of companionship of the minor child. We are persuaded that the Koskela reasoning is equally applicable here and affirm the dismissal of counts V and VI.

IV

In addition to the other arguments raised, Westchester contends that the section of 22d Street relevant to plaintiffs’ cause of action is outside the geographical boundaries of Westchester. Westchester advanced this contention below, supported with an affidavit of the village manager, in response to plaintiffs’ first amended complaint, to which plaintiffs apparently did not respond. Plaintiffs’ failure to file counteraffidavits on this issue is construed by defendants as an admission on their part. Plaintiffs, however, thereafter filed ■their second amended complaint, which took the place of their previous pleading. (Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 341 N.E.2d 101.) Westchester failed to renew this issue or attach its affidavit in its response to this complaint. Furthermore, Westchester’s motion to dismiss the second amended complaint was brought pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45). Although affidavits may be considered under a section 48 motion to dismiss (Ill. Rev. Stat. 1979, ch. 110, par. 48), they may not be considered under a section 45 motion to dismiss for failure to state a cause of action, which admits all well-pleaded facts and attacks facially only the complaint’s legal sufficiency. Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 131, 359 N.E.2d 171.

A reviewing court is empowered to take judicial notice of the territorial boundaries of municipalities (Ill. Rev. Stat. 1981, ch. 24, pars. 2 — 1—1, 7 — 6—8; ch. 110A, par. 366). Those boundaries are subject to change, of course, by way of annexation, union and disconnection (Ill. Rev. Stat. 1981, ch. 24, pars. 7 — 1—1 through 7 — 3—6), particularly with burgeoning population growth in suburban areas. Municipalities are also authorized to extend territorial jurisdiction beyond corporate limits (Ill. Rev. Stat. 1981, ch. 24, pars. 7 — 4—1 through 7 — 4—3) and may have done so here. Reviewing court readings of maps which may or may not be up to date, under these circumstances, could result in an exercise in uncertainty, become hazardous to the parties’ actions, and is better proved at the trial court level.

For these reasons, and because Westchester’s objection was made as to the second amended complaint for the first time on appeal, the merits of Westchester’s argument cannot be considered. See Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 556, 309 N.E.2d 550; Village of Hillside v. Chicago, Aurora & Elgin R.R. (1976), 40 Ill. App. 3d 861, 864-65, 353 N.E.2d 227.

We therefore affirm in part, reverse in part and remand for trial.

PERLIN, J., concurs.

JUSTICE DOWNING,

concurring in part and dissenting in part:

I would affirm the dismissal of the defendant villages Hillside and Westchester for the following reasons:

I

The court should take judicial notice of the location, one-half mile west of Wolf Road on the north side of 22d Street, and whether it is located within either defendant village. It seems questionable whether two villages and the County of Cook would have joint jurisdiction. As the majority note (point IV), the village of Westchester raised this issue in the trial court and before this court. The village of Hillside did not raise the issue.

This court can take judicial notice of the territorial boundaries of municipalities. (See Ill. Rev. Stat. 1981, ch. 24, pars. 2 — 1—1 and 7— 6 — 8; Hunter, Trial Handbook for Illinois Lawyers secs. 46:12, 46:13 (4th ed. 1972); Sublette Exchange Bank v. Fitzgerald (1912), 168 Ill. App. 240; Bruson v. Clark (1894), 151 Ill. 495, 497, 38 N.E. 252.) We can also take judicial notice of a matter which the circuit court failed to so do. Ill. Rev. Stat. 1981, ch. 51, par. 48g; Wheeler v. Aetna Casualty & Surety Co. (1973), 11 Ill. App. 3d 841, 852, 298 N.E.£d 329; Ashland Savings & Loan Association v. Aetna Insurance Co. (1974), 18 Ill. App. 3d 70, 77-78, 309 N.E.2d 293.

According to the records of the County of Cook, the specific location alleged in the complaint is not located within either defendant village. If this is the fact, then I think the court should take judicial notice. It is recognized that the defendant villages failed to provide an adequate record on this point. However, in the interest of judicial economy, I would affirm the dismissal on this ground, subject to the right of the plaintiff to submit, during the time for petition for rehearing, any verified evidence to the contrary. I also realize that the more traditional procedure would be to remand the matter to the circuit court for a hearing. But this is really a simple issue which could be more efficiently handled in this fashion.

II

The complaint does not allege a reasonably foreseeable legal duty on the part of the defendant villages. In Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617, a minor thrown some 30 feet from an automobile following a collision had his leg impaled upon a drain pipe protruding from the ground on a parkway maintained by the defendant village of LaGrange. In concluding that the complaint did not allege a legal duty as to the village, the supreme court said:

“[I]n determining whether there was a legal duty, the occurrence involved must not have been simply foreseeable ***; it must have been reasonably foreseeable. The creation of a legal duty requires more than a mere possibility of occurrence. *** Prosser (Handbook of the Law of Torts (4th ed. 1971), sec. 31, at 146) comments: ‘No man can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.’ In judging whether harm was legally foreseeable we consider what was apparent to the defendant at the time of his now complained of conduct, not what may appear through exercise of hindsight.” 56 Ill. 2d 372, 375-76, 308 N.E.2d 617, 619.

As said in Ortiz v. City of Chicago (1979), 79 Ill. App. 3d 902, 908, 398 N.E.2d 1007, “[a] municipality is not expected to anticipate unusual or extraordinary happenings.” I think the conclusive nature of the allegations in the complaint present such an “unusual or extraordinary happening.”

I realize there is always a clash between the desire of allowing a plaintiff a day in court and the duty of a plaintiff to file a legally cognizable complaint. In my opinion, this complaint is deficient in that it alleges conclusions rather than facts. Assuming the location to be within a defendant village, I do not find a legal duty on either village. Consequently, I would resolve the clash in favor of defendants and affirm the circuit court.

III

I concur as to the affirmance of counts I, III, V and VI and dissent as to counts II and IV.

       Now section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615).

       Counts II and IV of the complaint actually state that the sign which serves as a quarter-mile marker is located one-half mile west of Wolf Road; plaintiffs stated in oral argument that this seeming incongruity is an oversight which they seek to amend.

       The suggestion in the dissent that the complaint was deficient because it alleged conclusions rather than facts finds no counterpart in defendants' motions, which were required to specify such a deficiency so as to allow the parties the opportunity to amend. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615; Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 338 N.E.2d 912.

       Now section 2 — 615 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615.

       Now section 2 — 619 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619.


author: JUSTICE NASH JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDOLPH LUCIEN, Defendant-Appellant.
    Second District
    No. 80—653
    Opinion filed September 10, 1982.
    Supplemental opinion filed on denial of rehearing October 26, 1982.

      G. Joseph Weller and Kyle Wesendorf, both of State Appellate Defender’s Office, of Elgin, and Rudolph Luden, pro se, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Following a bench trial defendant, Rudolph Lucien, was convicted of one count of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1(a)); one count of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a)); two counts of intimidation (Ill. Rev. Stat. 1979, ch. 38, par. 12— 6(a)(1)); five counts of aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(3), (5)); and five counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). He was thereafter sentenced to concurrent extended terms of imprisonment of 60 years for rape, armed robbery and for each armed violence conviction; 30 years for each aggravated kidnaping conviction; and 10 years for each intimidation conviction. In his brief presented by the appellate defender, defendant contends he was not proved guilty beyond a reasonable doubt; that certain judgments entered for rape, armed robbery, intimidation, aggravated kidnaping and armed violence constitute prohibited multiple convictions for the same acts; and, that imposition of extended terms of imprisonment was improper. Defendant has also filed a brief pro se raising issues that the grand jury proceedings violated his right to due process; bail was excessive; he was denied a speedy and fair trial; and, that the trial court erred in ruling on certain of defendant’s motions.

At trial the prosecutrix, Nancy_, testified that in the early afternoon of December 12, 1979, she was in her apartment in Lisle and responded to a knock on her door. A man, who she subsequently identified as defendant, told her he lived in a nearby apartment and, as he was moving, had a list of articles for sale. He did not identify himself and she had never seen him before. She went to his apartment and, after purchasing a plant, returned to her apartment. Defendant came to her apartment again at 2 p.m. and told her she could have his unsold plants. She returned to his apartment taking her purse containing her wallet and checkbook. After she entered he closed the door and grabbed her, throwing her to the floor. He told her to cooperate and not to make an outcry or struggle. She told him she was pregnant and did not want to lose her husband and baby. Defendant removed her clothing and tied her hands and feet with neckties, then put her in the bedroom closet. He left briefly and returned carrying a knife. He removed her from the closet, untied her and began removing his clothes. She ran for the door but he caught her by the hair and beat her. Defendant retied her hands, told her to cooperate or be killed and had sexual intercourse with her.

The prosecutrix testified further that defendant then threatened her with his knife and required her to sign a check from her checkbook made out for $3,000. She advised him her husband would soon be home and looking for her as she had left her apartment unlocked. Defendant said he would lock her apartment door and she was to remain quiet or be killed. When she heard defendant’s apartment door close, however, she left by jumping from its second floor balcony to the ground below and ran, naked, across the parking lot to the apartment of another tenant who called the police. She was crying and said she had been raped.

Witnesses staying in an apartment below defendant’s heard a scream and saw a bloody, unclothed girl land on the patio and run across the parking lot. They followed her with clothing to the apartnient she entered; the girl was lying on a couch and said she had been raped.

Officer William Selby testified he responded to a call to the apartment complex and saw the prosecutrix lying on a couch covered with a blanket. She had marks on her face and was bleeding from her nose. She was crying and said she had been raped and described her assailant, who she identified in trial as defendant.

The prosecutrix’ husband arrived and she was taken to a hospital where on examination she was found to have a cut above her nose, black eyes, misplaced teeth with facial nerve damage, extensive body bruises and abrasions and a large clump of loose hair. Semen was found in her vagina.

Officer Selby recalled he had arrested defendant five days earlier and defendant had given that apartment as his address. The prosecutrix identified defendant as her assailant in a photographic lineup at the hospital and a search warrant was obtained for his apartment. Officers there recovered the prosecutrix’ clothing, identification papers, a torn check which had been in her purse, bloody bed linen and knotted neckties. Her purse and checkbook were located the next day in a ditch in Lockport.

Other evidence was presented by the State that defendant and a Susan Lucien were lessees of the apartment in which the incidents took place. Defendant’s employer testified he had taken sick days off for December 10-13 and on December 14 called to advise he was taking a leave of absence because he wife had died and he needed time away. Defendant left for California December 14 where he was arrested on January 2, 1980. After waiving extradition he was returned to Illinois for trial which commenced June 4,1980.

Defendant testified in trial that a sexual relationship had existed between himself and the prosecutrix for several weeks. He stated that on the day in question she rode to Chicago with him in the morning and later that day came to his apartment and voluntarily engaged in sex with him; that she had asked him to tie her up with neckties after reading bondage magazines in his apartment. He testified further that she then informed him she was married and might be pregnant with his child. He was leaving his apartment to tell her husband about their affair when she became hysterical, making it necessary for him to slap her face. She fell backwards and tripped over an electric cord falling face first on a nightstand causing her injuries. Defendant stated he believed she had arranged this incident because of the possibility she might give birth to a black baby which she could only explain to her husband as conceived by rape. He denied that he had committed rape or the other offenses charged.

Defendant also testified that while she was in his apartment two friends of his stopped and visited for awhile. He said he had told her to get her clothing out of the living room, but as they were leaving she came out wearing defendant’s hooded robe. Sheldon Wicks testified he had known defendant for 10 years, having met him in State-ville. He and Franklin Thomas arrived at defendant’s apartment at 2 p.m. on December 12 and visited. As they were leaving a girl came from the bedroom wearing a robe; she was white with brown hair and he assumed she was Susan Wydra with whom defendant had been living. Franklin Thomas testified that as they were leaving he saw a white girl with brown hair wearing a robe. Thomas also testified he had been convicted of armed robbery and had known defendant for 14 years, but would not lie for him.

Randy Lucien, defendant’s brother, testified that in November he had invited defendant to spend Christmas with him in Los Angeles and defendant arrived there December 15.

Willie Joe Lester testified that on December 12 he had seen defendant in Chicago with a white woman who had brown hair. William Jefferson testified that in November he saw defendant get out of his car near his apartment and identified a photograph of the prosecutrix as the woman he saw in defendant’s car.

We consider first whether the evidence was sufficient to sustain the substantive convictions for rape, armed robbery, aggravated kidnaping and intimidation.

Defendant essentially argues that his testimony regarding a consensual relationship with the prosecutrix was corroborated by other witnesses and that her account of the events occurring on December 12 was improbable.

It is the function of the trial court, sitting as trier of the facts, to determine the credibility of the witnesses, the inferences to be drawn and the weight and quality of the evidence. (People v. Perez (1981), 94 Ill. App. 3d 377, 381, 418 N.E.2d 969, 972, appeal denied (1981), 85 Ill. 2d 572; People v. Sakalas (1980), 85 Ill. App. 3d 59, 68, 405 N.E.2d 1121, 1129, appeal denied (1980), 81 Ill. 2d 597; People v. Lucien (1978), 66 Ill. App. 3d 280, 289, 383 N.E.2d 735, 742.) While a reviewing court has a special duty to carefully review the evidence in cases involving rape, this does not permit it to simply substitute another view of the evidence. People v. Utinans (1977), 55 Ill. App. 3d 306, 314, 370 N.E.2d 1080, 1086, appeal denied (1978), 71 Ill. 2d 601.

In this case the testimony of the prosecutrix was clear, convincing and corroborated by other evidence. (See People v. Lee (1961), 23 Ill. 2d 80, 177 N.E.2d 199.) She promptly complained to the police and others after escaping from defendant’s apartment by jumping from the second floor balcony in order to get away from him. (People v. Trejo (1976), 40 Ill. App. 3d 503, 509, 352 N.E.2d 68, 72.) Her injuries and extreme emotional upset were apparent tending to refute defendant’s assertion she had consented to his conduct. (People v. Kilgore (1976), 39 Ill. App. 3d 1000, 1003, 350 N.E.2d 810, 812, appeal denied (1976), 63 Ill. 2d 560.) The trial court also took into consideration photographs in evidence and her clothing and certain bloodstained items found in defendant’s apartment. The judge stated he considered defendant’s testimony illogical and inconsistent with the evidence presented by the State.

Defendant’s witnesses, who testified they had seen him with a white girl having brown hair, did not identify the prosecutrix as that girl, except for William Jefferson. However, Susan Wydra, defendant’s former girlfriend, testified in rebuttal it was she who was with defendant on that occasion.

We conclude the evidence presented in trial was sufficient to establish defendant’s guilt beyond a reasonable doubt. People v. Collier (1978) , 66 Ill. App. 3d 1007, 1010, 384 N.E.2d 497, 499, appeal denied (1979), 74 Ill. 2d 587.

Defendant also contends that the judgments entered on counts 1-8, 13, 14 and 16 must be vacated as multiple convictions in which more than one offense has been carved from single physical acts. Judgments of the conviction were entered under the following counts of the indictment for these offenses:

1. Rape, Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1(a).
2. Armed robbery (while armed with knife, took check and purse), Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a).
3. Intimidation (by threat of physical harm caused writing of check), Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6(a)(1).
4. Intimidation (by threat of physical harm if she fled apartment), Ill. Rev. Stat. 1979, ch. 38, par. 12 — 6(a)(1).
5. Aggravated kidnaping (secretly confined against her will and committed rape), Ill. Rev. Stat. 1979, ch. 38, par. 10— 2(a)(3).
6. Aggravated kidnaping (secretly confined and committed armed robbery), Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(3).
7. Aggravated kidnaping (secretly confined and committed intimidation), Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(3).
8. Aggravated kidnaping (secretly confined and committed armed violence), Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(3).
13. Aggravated kidnaping (secretly confined while armed with knife), Ill. Rev. Stat. 1979, ch. 38, par. 10 — 2(a)(5).
14. Armed violence (while armed with knife committed armed robbery), Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.
15. Armed violence (while armed with knife committed intimidation by threatening physical harm to cause writing of a check), Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.
16. Armed violence (while armed with knife committed intimidation by threat of physical harm to cause her not to flee apartment), Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.
17. Armed violence (while armed with knife committed aggravated kidnaping, by secretly confining and committing rape), Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.
18. Armed violence (while armed with knife committed aggravated kidnaping, by secretly confining and committing armed robbery), Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.

Defendant was acquitted of other offenses charged in counts 9 through 12.

We have great difficulty in understanding why the State considered it necessary to charge defendant in this convoluted, repetitious manner. It carved 19 duplicative offenses from the four basic charges of rape, armed robbery, aggravated kidnaping and intimidation making trial, sentencing and review unnecessarily difficult and error almost certain, perhaps at all three stages.

Defendant was sentenced as follows:

Count 1. Rape, Class X, 60 years extended term.
Count 2. Armed robbery, Class X, 60 years extended term. Count 3. Intimidation, Class 3,10 years extended term.
Count 4. Intimidation, Class 3, 10 years extended term.
Count 13. Aggravated kidnaping, Class X, 30 years extended term.
Count 17. Armed violence, Class X, 60 years extended term.
Count 18. Armed violence, Class X, 60 years extended term.
Count 19. Armed violence, Class X, 60 years extended term.

Judgments of conviction were entered, but defendant was not sentenced, under counts 5 through 8, each charging aggravated kidnaping, and under counts 14 through 16, each charging armed violence. He was also sentenced for armed violence as charged in count 19 although a judgment of conviction was not entered as to that count.

We conclude that the judgments of conviction must be vacated as to the following counts:

Count 1 for rape
Counts 3 and 4 charging intimidation
Counts 5-8 and 13 for aggravated kidnaping
Counts 14 and 18 for armed violence.

Judgments of conviction were properly entered as to:

Count 2 for armed robbery and
Counts 15 through 17 for armed violence.

Multiple convictions for both armed violence and the underlying felony upon which it is predicated cannot stand where the same physical' act is the basis for both charges. In that event, judgment should be entered and sentence imposed only for the more serious offense. People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477; People v. Myers (1981), 85 Ill. 2d 281, 287, 426 N.E.2d 535, 538; People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.

The underlying felonies of rape charged in count I, intimidation charged in counts 3 and 4, aggravated kidnaping charged in counts 5 though 8 and in count 13 were included within the armed violence offenses for which defendant was convicted under counts 15, 16 and 17, in which they were alleged as predicates, and must be vacated.

The judgments of conviction for armed violence entered under counts 14 and 18, for which sentences were not imposed, must also be vacated. Each of these counts constitute double enhancement as the predicate offenses were also enhanced by the presence of a weapon. (People v. Haron (1981), 85 Ill. 2d 261, 277-78, 422 N.E.2d 627, 634; People v. Jones (1980), 89 Ill. App. 3d 1030, 1034, 412 N.E.2d 683, 687, appeal denied (1981), 85 Ill. 2d 559; see Simpson v. United States (1978), 435 U.S. 6, 14, 55 L. Ed. 2d 70, 78, 98 S. Ct. 909, 914.) The sentence imposed for armed violence under count 19 must be vacated as a judgment of conviction was not entered for the offense there charged.

In summary, defendant was validly convicted of armed robbery under count 2, in which an extended-term sentence of 60 years was imposed, and of armed violence under counts 15, 16 and 17. Sentences were not imposed under counts 15 and 16, and under count 17 he was sentenced to an extended term of 60 years.

Defendant contends the extended terms of imprisonment are improper, arguing that neither of the requisite statutory factors necessary for imposition of an extended term were present.

An extended term of imprisonment may be imposed where a defendant is convicted of any felony after having been previously convicted in Illinois “of the same or greater class felony, within ten years ***” or where “*** the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.”- (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1), (2).) Defendant argues that as the trial court made no finding that defendant’s conduct was exceptionally brutal or heinous that factor cannot provide a basis for the extended terms of imprisonment.

The trial court is not obliged to recite or assign a value to each fact upon which it relies in determining a sentence. (See People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) The sentencing judge noted he had considered the evidence produced in trial, the presentence report, matters presented in aggravation and mitigation, sentencing alternatives, arguments of the parties and the statement of the defendant. He concluded, inter alia, that the extended term provisions applied to this case. See People v. La Pointe (1982), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353; People v. McFarland (1981), 93 Ill. App. 3d 136, 143-44, 416 N.E.2d 769, 776; compare People v. Lenninger (1980), 88 Ill. App. 3d 801, 806-07, 410 N.E.2d 1157, 1162.

The record discloses defendant inflicted both mental and physical pain upon his victim. He repeatedly threatened her life with a knife and severely beat her although she had told him she was pregnant. The presentence report discloses that the young woman required medical and dental treatment and both she and her husband endured great emotional stress together with anxiety with regard to her pregnancy which continued long after the assault. We conclude the trial court properly considered the factors authorizing an extended term and did not abuse its discretion in imposing sentence. People v. Clark (1981), 102 Ill. App. 3d 414, 425, 429 N.E.2d 1255, 1263; People v. Piontkowski (1979), 77 Ill. App. 3d 994, 397 N.E.2d 36.

As the presence of one of the statutory factors is sufficient for imposition of an extended-term sentence (People v. Hamilton (1980), 81 Ill. App. 3d 297, 401 N.E.2d 318, appeal denied (1980), 81 Ill. 2d 595), we do not reach the issue of whether defendant’s convictions for attempt murder and attempt armed robbery in 1970 would also provide a basis for an extended term.

Defendant has also filed a pro se brief in this court in which he has raised other issues not presented by the brief filed on his behalf by his counsel. Although Supreme Court Rules 341 and 612 (73 Ill. 2d Rules 341, 612) do not authorize an appellant to offer multiple briefs for review, we have, in this instance, considered the additional matters raised by defendant and find them to be without merit.

In imposing sentence under counts 1, 2, 3, 4, 13, 17, 18 and 19 the trial court did not state why it failed to sentence defendant for the other offenses for which he had been convicted. These unsentenced convictions include armed violence charged under counts 15 and 16 to which we earlier referred. Although necessarily discussed in our analysis of the issues raised by defendant, he did not include counts 15 and 16 in his notice of appeal and they constitute unappealed and unsentenced convictions which the court has recently addressed in People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180. We conclude that the trial court failed to impose sentence under counts 15 and 16 believing that were precluded because of the relationship of those offenses to the sentenced offenses which defendant has appealed, thus authorizing remandment for sentencing.

Accordingly, the judgment of the circuit court is affirmed as to armed robbery charged in count 2 and armed violence charged in count 17. The cause is remanded with directions to impose sentence for armed violence under counts 15 and 16, to run concurrently with the sentences imposed under counts 2 and 17, and to vacate the convictions or sentences under counts 1, 3, 4, 5, 6, 7, 8, 13, 14, 18 and 19.

Affirmed in part; reversed in part and remanded.

REINHARD and VAN DEUSEN, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE NASH

delivered the opinion of the court:

In its petition for rehearing the State requests we reconsider our order vacating defendant’s conviction and sentence for rape under count 1 of the indictment and, instead, vacate the armed violence offense charged under count 17 in which rape was alleged, in part, as a predicate. The State agrees both convictions cannot stand in conjunction with one another (People v. King (1977), 66 Ill. 2d 551, 556, 363 N.E.2d 838, 844-45, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273), and suggests that in such cases judgment should be entered and sentence imposed only for the offense based upon the more specific statute on the subject matter, citing People v. Clark (1979), 71 Ill. App. 3d 381, 420, 389 N.E.2d 911, 939; People v. Velleff (1981), 94 Ill. App. 3d 820, 825-26, 419 N.E.2d 89, 93; People v. Crawford (1980), 90 Ill. App. 3d 888, 889-90, 414 N.E.2d 25, 27; see also People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627, 634; People v. Jones (1980), 89 Ill. App. 3d 1030, 1034, 412 N.E.2d 683, 687, appeal denied (1981), 85 Ill. 2d 559.

Count 17 of the present case, however, charged armed violence predicated on the commission of aggravated kidnaping while armed; it was not principally predicated upon the offense of rape as suggested by the State’s argument. Rape was alleged in count 17, but only as the aggravating element enhancing the kidnaping of the victim to the more serious form of that offense.

A comparison of the statutes dealing with rape and kidnaping demonstrates they are not in pari materia (see, e.g., People v. Scheib (1979), 76 Ill. 2d 244, 390 N.E.2d 872), as they define separate offenses and prohibit different kinds of conduct. For that reason we may not apply to these offenses the rule of statutory construction urged by the State that a more specific statute will govern over a general statute dealing with the same subject matter. Compare People v. Jones (armed robbery is a more specific offense than is armed violence predicated upon armed robbery) and People v. Crawford (rape is more specific than armed violence predicated upon rape).

Nor do we find any basis in this circumstance to consider whether either of these offenses may be more serious than the other. (See People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479.) As charged in count 17, defendant was convicted of armed violence as a Class X felony and rape charged in count 2 is also in Class X.

The State has also requested we clarify whether a new sentencing hearing will be required in the trial court to carry out the direction on remand to impose sentences for armed violence under counts 15 and 16.

Yes, a sentencing hearing is required at which the trial court may consider those matters offered at the original sentencing hearing and any relevant additional evidence offered by the State or defendant.

Accordingly, we adhere to the opinion and rehearing is denied.

REINHARD and VAN DEUSEN, JJ., concur.


text:
      In re Estate of ANICE P. CAHILL, Deceased.—(Chris Vallas, Coroner of Macon County, Claimant-Appellant, (4—82—0139) v. Daniel Cahill, Ex’r of the Estate of Anice P. Cahill, Deceased, Respondent-Appellee.)—In re Estate of THELMA D. SCHAUB, Deceased.—(Chris Vallas, Coroner of Macon County, Claimant-Appellant, (4— 82—0140) v. Frederick Schaub, Ex’r of the Estate of Thelma D. Schaub, Deceased, Respondent-Appellee.)
    Fourth District
    Nos. 4—82—0139, 4—82—0140 cons.
    Opinion filed September 21, 1982.
    Basil G. Greanias, State’s Attorney, of Decatur, for appellant.
    Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur (Roswell C. Prince and Donald E. Brilley, of counsel), for appellees.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

In these two consolidated cases, the Coroner of Macon County filed claims in the respective estates seeking a fee for the preliminary investigation conducted by the coroner in each case. The trial judge denied both claims, finding that the investigations were not required under section 10 of “An Act to revise the law in relation to coroners” (Ill. Rev. Stat. 1981, ch. 31, par. 10). We affirm.

The issue presented for review is whether the coroner is entitled to his fees for conducting a preliminary investigation in each case.

Artice Cahill became ill at church on September 27, 1980, and was taken to St. Mary’s Hospital and placed in the intensive care unit until her death October 1, 1980. She was under the care of Dr. Charles 0. Stanley while in the hospital.

The death certificate was signed by Dr. Charles 0. Stanley, who attended Mrs. Cahill from March 20, 1961, until her death, and contained a notation that the coroner had been notified; the coroner’s records showed that a preliminary investigation was conducted.

Mrs. Cahill’s death certificate was admitted into evidence. It stated that she was 85 years old and listed the immediate cause of her death as brain stem stroke with respiratory failure. The stated approximate interval between the onset of that condition and death was four days. Addison’s disease was listed as another significant condition contributing to her death. No autopsy was performed.

Chris Valias, Coroner of Macon County, stated that the coroner’s investigation revealed that Mrs. Cahill’s death was a natural death.

On February 1, 1980, Thelma Schaub was stricken while eating supper and taken to Decatur Memorial Hospital. She was admitted to the intensive care unit of the hospital by Dr. Paul R. Stanley and remained there until her death on February 4, 1980, under the care of Dr. Paul R. Stanley and Dr. Hubbard.

Valias testified that according to the coroner’s records the coroner was called by the hospital and conducted a preliminary investigation and that the standard procedure is for the doctor and coroner to confer about which one of them will sign the death certificate.

The death certificate was signed by Dr. Paul R. Stanley, and there was no notation that the coroner was called by the doctor.

Mrs. Schaub’s death certificate was admitted into evidence. It noted that she was 76 years old and listed the immediate cause of her death as brain stem infarction; the stated approximate interval between the onset of that condition and death was three days. There was no notation on the certificate that the coroner was notified of Mrs. Schaub’s death. No autopsy was performed.

Valias stated that his predecessor as coroner, Dr. John K. Morrison, and Mrs. Schaub’s attending physician concluded that her death was a natural death. The coroner’s report indicated that Dr. Paul R. Stanley would sign the death certificate. The police were not notified of Mrs. Schaub’s death, no blood specimens were taken, and no inquest was performed.

The authority of a coroner to make a preliminary investigation into the circumstances of a death is governed by section 10 of “An Act to revise the law in relation to coroners” (111. Rev. Stat. 1981, ch. 31, par. 10), which says in pertinent part:

“Every coroner, whenever, as soon as he knows or is informed that the dead body of any person is found, or lying within his county, whose death is suspected of being:
(a) A sudden or violent death, whether apparently suicidal, homicidal or accidental, including but not limited to deaths apparently caused or contributed to by thermal, traumatic, chemical, electrical or radiational injury, or a complication of any of them, or by drowning or suffocation;
(b) A maternal or fetal death due to abortion, or any death due to a sex crime or a crime against nature;
(c) A death where the circumstances are suspicious, obscure, mysterious or otherwise unexplained or where, in the written opinion of the attending physician, the cause of death is not determined;
(d) A death where addiction to alcohol or to any drug may have been a contributory cause; or
(e) A death where the decedent was not attended by a licensed physician;
shall go to the place where the dead body is, and take charge of the same and shall make a preliminary investigation into the circumstances of the death.”

The trial judge made only factual findings in his February 10, 1982, docket entry stating in part as follows:

“After reviewing the testimony and exhibits in this case and various cases cited by counsel, it is the finding of the Court that although the coroner’s office may have been requested to be present by some member of the hospital staff, there was no indication that at the time the coroner was summoned, any of the conditions cited in Sec. 10(a)-(e) existed with regard to the decedent.
It is, therefore, the finding of the Court that although the coroner did conduct a preliminary investigation, there was no indication that the investigation was required under any of the paragraphs of Sec. 10. Therefore, the claim by the coroner for his fee shall be denied.”

“ ‘It is the trial court that observes and hears the witnesses and analyzes the testimony. It is not for a court of appeal to substitute its findings for those of the trial court unless such findings are clearly and palpably erroneous and against the manifest weight of the evidence.’ ” Stark v. Stark (1971), 131 Ill. App. 2d 995, 997, 269 N.E.2d 107, 109.

The coroner argues that the two women died suddenly, but the records in these cases amply support the trial court’s findings that none of the conditions cited in section 10(a) through (e) existed with respect to either decedent. Because these were not sudden deaths, the coroner had no authority under section 10(a) to conduct preliminary investigations. Both decedents were elderly women who suffered brain stem strokes and died in a hospital, under a medical doctor’s care, three and four days later. The coroner in the two cases at bar therefore exceeded his authority by conducting preliminary investigations in situations other than those specified in section 10.

The coroner’s preliminary investigations were not required and the statutory fee was properly denied. The trial court’s factual findings to that effect were not against the manifest weight of the evidence, and its judgments are affirmed.

Affirmed.

GREEN, P. J., and WEBBER, J., concur.