author: Mr. JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Griffin et al., (Impleaded), Defendants-Appellants.
    (No. 55586, 56192 cons.;
    First District (5th Division)
    May 18, 1973.

      Julius Lucius Echeles and Carolyn Jaffe, of Chicago, for appellant Montell Jackson.
    James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellants Griffin and McKinney.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, Bernard S. Armel, and James Staruck, Assistant State’s Attorneys, of counsel) for the People.
   Mr. JUSTICE SULLIVAN

delivered the opinion of tire court:

After a bench trial, the defendants were found guilty of the murder of Gregory Greene and the attempt murder and aggravated battery of Edward Payne. They were sentenced as follows: on the murder charge, Ricardo Griffin — 15 to 22 years, Richard McKinney — 14 to 17 years and Montell Jackson — 14 to 20 years; on the attempt murder charge, Ricardo Griffin — 8 to 15 years, Richard McKinney — 5 to 10 years and Montell Jackson — 7 to 14 years; on the aggravated battery charge, Ricardo Griffin —7 to 10 years, Richard McKinney — 2 to 7 years and Montell Jackson— 3 to 10 years. All sentences to run concurrently. A fourth defendant, Walter Jackson, was discharged on a finding of not guilty at the close of State’s evidence. On appeal each of the defendants contends:

1. He was not proven guilty beyond a reasonable doubt.
2. His conviction and sentence for aggravated battery was improper.

In addition, the defendant Montell Jackson contends he was denied a fair trial because:

1. The trial court improperly denied suppression of identification testimony, in that:
(a) legal counsel was not present at the pre-trial identifications,
(b) the identification testimony of witness Clyde Watson resulted from a suggestive identification procedure.
2. The court questioned witnesses and brought out matters prejudicial to him.

It appears that about 10:00 P.M. on the evening of May 28, 1969, about 15 assailants jumped out from behind posts under an ‘El’ structure and started shooting at Gregory Greene, Edward Payne, Clyde Watson and a person named Orrie. Greene was killed and Payne was wounded. Payne testified on trial that he had been drinking and didn’t know what happened. The person named Orrie did not testify.

Watson stated that he saw Montell Jackson (hereinafter called Montell) fire a pistol at him and his friends and when Greene fell, he saw Ricardo Griffin shoot him while he was on the ground. He also observed Richard McKinney holding a shotgun and standing near Montell but he did not see McKinney fire the gun.

When the shooting began Watson took cover about 65 feet away behind a post about two feet wide and viewed the attack with one eye as he looked around the post. He could see the assailants, particularly the three defendants, who were under a light and about three or four feet in front of the others. The entire episode lasted about three minutes during which time he was viewing all of the assailants. The first assailant he saw (later identified as Montell Jackson) had shiny hair and he observed his face under the light for "about one minute. Long enough for me to remember.”

He did not know any of the assailants but stated he later gave the police a description of them and told the police he had seen their faces and would be able to identify some of them if he saw them again. About 20 minutes after the occurrence he saw three young men in a police squadrol and identified two of them as assailants but could not identify the third. He did not know their names but later learned them to be Richard McKinney and Walter Jackson. During trial he identified Mon-tell, Griffin and McKinney as assailants but he was not sure that Walter Jackson was among them and Walter Jackson was thereupon discharged at the close of the State’s evidence.

Ardell Chambers, a witness for the State, identified Griffin and Montell in court and testified that he, Benny Stewart and Clyde Jones were in an alley about lVz blocks from the place of the shooting when Griffin and Montell ran into the alley towards them. Montell told them “get out of the alley because somebody just got shot.” He then said “somebody just got blown away” and at the same time Griffin was moving his right index finger forward and back. Montell said that Griffin had fired the shots and Griffin said nothing. Chambers had known both for a number of years. He and his twin brother were taken into custody because of the shooting and he was also charged with a robbery. He was held in the Audy Home where, after about one month, he told the police what had occurred in the alley. He had been visited at the Audy Home by tire police for about Vs hour every day for one week before his statement was given and he had been told he might get 20-25 years for the murder of Greene. He was released about one week after he told what happened.He stated he had not been promised any kind of consideration for testifying and that he did tell Montell and Griffin a few days before trial that he had been subpoenaed and was told by the police he would go to jail if he did not testify.

Benny Stewart, a State’s witness who was with Chambers, testified that he saw Montell and Griffin run into the alley screaming “we just shot a Stone.” He gave a statement to the police on June 17, 1969, because fire police told him he would go to jail if he didn’t. He didn’t tell the police prior to this time because he didn’t want to get Montell and Griffin in trouble. Upon questioning by the court he testified that Montell said “we shot a Stone” and that Griffin didn’t say anything but that Griffin made motions with his finger- like he was pulling the trigger of a gun.

Defendants Montell and Griffin testified that at the time of the shooting they were on Montell’s front porch with some other friends and their testimony was corroborated by Calvin Herman and Stewart Hill who stated that they were on the porch with the defendants for the entire evening. In addition, Marjorie Harmon, a neighbor and resident of the community for 20 years, testified that she knew Montell well and that his reputation in the community for honesty and integrity was good.

Montell first contends that legal counsel should have been present at the pre-trial identifications. In his reply brief he agrees that this contention is no longer well taken in view of the holding in Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, that there is no right to counsel at pre-indictment confrontations.

He also asserts the court erred in permitting Watson to identify him at trial. He maintains, citing United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, and Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, that Watson’s in-court identification was the fruit of suggestive pre-trial confrontations. In support he argues (1) that since Watson had described one of the assailants as having shiny hair, it was conducive to mistaken identification to bring about a confrontation where Watson viewed Montell who had shiny hair and (2) there was no independent source upon which the in-court identification could have been based since Watson’s opportunity to observe Montell during the crime was restricted and impaired.

After the shooting Montell was driven around the neighborhood by the police to point out Ardell Chambers, known to him but not to the police, and he then went to the police station with Officer O’Hagan who wanted him to identify Chambers from the police books.

Montell testified that Watson identified him twice at the police station. Initially, he was identified when he was in a corridor waiting to go into the book room. At that time he apparently was not in custody and Officer O’Hagan was not with him. About 20 minutes later, when he was examining the police books, Officer O’Hagan brought him from the book room to the detective’s room where Watson again identified him. Both of these identifications occurred about two hours after the shooting and from the record it appears that there were no verbal suggestions or encouragements by the police before either of the identifications.

Montell argues that even though there was an initial unplanned confrontation in the police station corridor before the planned confrontation in the detective’s room and, although there was no official misconduct underlying either confrontation, the suggestiveness is present and prejudicial because (1) Montell was the only person Watson could have identified at either time, (2) Montell’s hair was shiny and Watson had previously told the police an assailant had shiny hair and (3) Watson’s on the scene observance was impaired by the physical conditions at the time of the shooting. Concerning these contentions, from our examination of the record, we note (1) that the first meeting was unplanned and took place in a corridor when Montell was not in custody and the police officer was not present. Watson was not asked to make an identification at that time. (2) Watson testified that his identification was not based upon the fact of Montell’s shiny hair but because he had seen Montell’s face at the scene of the shooting and (3) concerning Watson’s on the scene observation we note Watson testified that Montell was the first assailant he saw, that he saw Montell shoot at him and his friends, that Montell was in front of the others and Watson observed his face under a light for about one minute. Watson also stated he observed the assailants for about three minutes and there was sufficient lighting to see the faces of the assailants and on this point he was corroborated by two police officers, both called to the stand by Montell, i.e., Richard Cooper who said the lighting was good and Kenneth Woods, the first officer to arrive, who testified the area was well lighted. Albert Barry, also called by Montell, was a Chicago Transit Authority employee assigned to a nearby ‘El’ station, who did not go to the scene but was familiar with the area, testified that the lighting was not very bright, just above dim.

A short time after the shooting and again a short time prior to trial the police showed Watson a number of photographs and from them he identified Montell, Griffin and McKinney as assailants.

The burden of proof is upon a defendant to establish the identification procedure to be so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. People v. Watkins (1970), 46 Ill.2d 273, 278, 263 N.E.2d 115.

In People v. Tuttle (1972), 3 Ill.App.3d 326, 278 N.E.2d 458, the court set forth principles concerning the admissibility of in-court identification:

“In order to suppress an in-court identification on the ground of improper pre-trial identification procedures, a defendant bears the burden of proving two facts. First, he must establish that the pre-trial identification procedures were so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States, 390 U.S. 377, 384; People v. Holiday, 47 Ill.2d 300, 307-308.) Second, to the extent that suggestive procedures are established, they must be shown to have been ‘unnecessary under the totality of the circumstances. (Stovall v. Denno, 388 U.S. 293, 302; People v. Lee, 44 Ill.2d 161, 169.) However, even if a defendant successfully establishes the above two elements, an in-court identification may nonetheless be admissible if the State shows “by clear and convincing evidence, that such in-court identification had an independent origin, arising from other uninfluenced observation of the defendant’. People v. McMath, 104 Ill.App.2d 302, 313; affirmed, 45 Ill.2d 33; see also People v. Fox, 48 Ill.2d 239, 245.”

Our review of the record discloses that the trial judge found the testimony of Watson to be positive and credible and the testimony of Montell to be unconvincing. We have considered this finding, the totality of the circumstances surrounding the on the scene’ and the pre-trial identifications of Montell and we conclude that he has failed to establish that the pre-trial identifications were unconstitutionally suggestive.

We conclude also, after consideration of the findings of the court and the totality of the circumstances, that there was sufficient basis for a determination that Watson’s on the scene observation was of sufficient independent origin to support his in-court identification of Mon-tell.

Montell also maintains that the trial judge unfairly questioned witnesses and brought out new matters prejudicial to him. No objection was made at trial to the court’s questions and this precludes him from claiming prejudice here. (People v. Graham, (1970), 127 Ill.App.2d 272, 262 N.E.2d 243.) Neither has he pointed out the manner in which he was prejudiced. Nevertheless, we have examined his abstract references and find that in each instance the trial judge’s questions were made for the purposes of clarification. This was his right, People v. Palmer (1963), 26 Ills.2d 464, 187 N.E.2d 236, and we do not believe that he abused his discretion.

We next turn to the contentions of each of the three defendants that he was not proven guilty beyond a reasonable doubt. ■

As to McKinney it is argued that the State’s evidence is insufficient because the only evidence offered against him was the vague, doubtful and uncertain identification testimony of Watson whose vision was impaired not only by distance and darkness, but also by the fact that he watched the attack with one eye. Montell and Griffin argue that the State failed to sustain its burden because (1) of the lack of time and opportunity to make an independent identification, (2) the circumstances surrounding the testimony of State’s witnesses, Ardell Chambers and Benny Stewart, were such that little, if any, weight should be given to then- testimony, and (3) the alibi testimony of these defendants was unrebutted.

Watson testified that McKinney was among the assailants and one of a small group with Griffin and Montell who were in front of the others and that he was carrying a shotgun. He was identified by Watson about 20 minutes after the shooting.

It is noted that the trial court found that the testimony of Watson was “credible and believable and positive” and that the testimony of Montell and Griffin “was unconvincing” and that Watson “did, in fact, see the faces of the three defendants and saw them under the ‘EI\” He also found that “Benny Stewart corroborated the testimony of Ardell Chambers and both of them corroborated the testimony of Watson.”

It is settled that the testimony of a single witness, where positive and the witness credible, is sufficient to sustain a conviction, even though the testimony is contradicted by the accused. People v. Hudson (1972), 5 Ill.App.3d 686, 284 N.E.2d 33.

The trial judge heard all of the testimony concerning all three defendants including the alibi witnesses. He was not required to believe the alibi testimony over that of State’s witnesses, Watson, Chambers and Stewart. (People v. Setzke (1961), 22 Ill.2d 582, 586, 177 N.E.2d 168.) He had the opportunity of observing the witnesses and hearing their testimony. It is his function to determine credibility. (People v. Scott (1966), 34 Ill.2d 41, 213 N.E.2d 521.) It is well established that unless there is strong evidence to the contrary, a reviewing court should not substitute its conclusions for those of the trial judge. People v. Mundorf (1968), 97 Ill.App.2d 130, 239 N.E.2d 690.

We have considered the entire record in the light of these principles and we conclude that the evidence was sufficient to justify the findings of the trial judge that each of the defendants was guilty beyond a reasonable doubt.

The final contention of each of the defendants is that his conviction and sentence for aggravated battery was improper since both the charges of attempt murder and aggravated battery arose out of the same conduct. In People v. Valentine (1973), 10 Ill.App.3d 678, 294 N.E.2d 717, it was held: “Where defendant is convicted of multiple offenses which arose from a single act, the court must vacate the sentence of aggravated battery which is the less serious offense.” Replying thereupon, the State has confessed that it was error to sentence defendants for both attempt murder and aggravated battery.

We agree that the conviction of attempt murder and aggravated battery arose out of a single act and that the sentence of each defendant for aggravated battery must be vacated.

Accordingly, those portions of the judgment of the trial court sentencing defendants, Ricardo Griffin, Richard McKinney and Montell Jackson, on the charges of murder and attempt murder are affirmed; and those portions of the judgment sentencing these defendants on the charge of aggravated battery are vacated.

Judgment affirmed in part, judgment vacated in part.

DRUCKER, P. J., and LORENZ, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Barbara J. Felton, Defendant-Appellant.
    (No. 58030;
    First District (2nd Division)
    May 22, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. E. M. Stephenson, a/k/a Edward M. Stephenson, Defendant-Appellant.
    (No. 57250;
    First District (4th Division)
    May 23, 1973.

      Rehearing denied June 13, 1973.

      James J. Doherty, Public Defender, of Chicago, (Saul H. Brauner, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kis-sane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial in the circuit court of Cook County, the defendant was found guilty of indecent liberties and deviate sexual assault with one Grace Ann Crossen, a 12 year-old girl. He was sentenced to the penitentiary for a term of not less than five nor more than 14 years.

The defendant appeals, contending that he was not proven guilty beyond a reasonable doubt since the testimony of the complaining witness was not corroborated nor was it clear and convincing, and that he should be dismissed for failure to grant him a speedy trial under the constitutional provisions and also under the statute.

Grace Ann Crossen testified that on July 26, 1969, she went to bed at approximately 10:00 P.M., wearing a nightgown with pants. Subsequently, Grace was awakened and went into the den of her home where she saw the defendant and asked him what he was doing there. The defendant told her to take off her pants and lay on the couch and then he removed his pants and laid on top of her. He further instructed Grace to remove her undeipants. Grace started screaming and crying. Defendant put his hand over her mouth and nose. He then told her not to cry or scream. He then grabbed her by the wrist and told her to put her pants back on. After Grace put her pajama pants back on, defendant led her out to his car. She left her undeipants back in the den. After arriving at the defendant’s car, Grace saw her sister, Debra, lying nude on the front seat. She then put Debra’s pajamas on and placed her in the back seat. The defendant told Grace to put her head on his shoulder, whereupon he began kissing her, occasionally rubbing her breast and vagina. He pulled her pants partially down and told her to remove one leg. He then forced her to rub his penis and sit on it. When she told the defendant she had to go to the washroom, defendant made her lay down on her back and urinate on the seat. Defendant then laid on top of her after which he got up and forced her to perform oral copulation. He told her by putting her mouth on his penis, it would make it slippery and easier to put inside her vagina. Defendant concluded his activities for the evening by warning Grace not to tell anybody or he would beat her up. He told her that she was now a woman because he had broken her “cherry” (hymen). Grace and her sister were taken to St. James Hospital for medical treatment and examination. Grace selected a photograph of the defendant shown to her by police and later identified him in a lineup.

Officer Frank Flannery testified that on the night in question he was called to the girl’s home and after he had arrived Grace came in the door carrying her baby sister in her arms. She was crying and screaming and her clothing was wet and smelled of mine. After Grace changed her clothing, he took her to the hospital for medical treatment. He later traveled to New York City to perfect the arrest of the defendant and transported him back to Illinois. Mrs. Adele Kalinowski, Grace’s mother, testified that she knew the defendant and had formerly dated him.

The defendant did not testify at the trial.

Mr. Justice Drucker said in People v. Adorno (1970), 126 Ill.App.2d 98, 102, 261 N.E.2d 443:

“It has been consistently held that the testimony of one witness, if it is positive and the witness credible, is sufficient to support a conviction even though the testimony is contradicted by the accused. People v. Johnson, 24 Ill.2d 195, 181 N.E.2d 164; People v. Cox, 22 Ill.2d 534, 177 N.E.2d 211; and People v. Smith, 121 Ill.App.2d 105, 257 N.E.2d 261. Furthermore, in a nonjury trial it is the function of the trial court, as the trier of the facts, to determine the credibility of the witnesses and the weight to be accorded their testimony. The trial court’s finding will be disturbed only where the evidence is so unreasonable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. People v. Scott, 38 Ill.2d 302, 231 N.E.2d 441, and People v. Stover, 121 Ill.App.2d 263, 257 N.E.2d 580.”

The evidence was more than sufficient to convict. It is well established that the testimony of one witness is sufficient to support a conviction. (People v. Brinkley (1965), 33 Ill.2d 403, 211 N.E.2d 730.) The trial court heard the testimony of the witnesses and observed their demeanor as they testified. The trial judge, sitting as the trier of the facts, found the defendant guilty. The credibility of the witness is a proper function of the trier of the facts, and where the evidence is merely conflicting, a reviewing court wiH not substitute its judgment for that of the trial court. (People v. Hanna (1969), 42 Ill.2d 323, 247 N.E.2d 610; People v. Clark (1964), 30 Ill.2d 216, 195 N.E.2d 631.) The trial court’s determination should not be disturbed unless palpably erroneous. People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499; People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230.

In determining the credibility of the witness, the court should consider not merely the age of the child, to-wit: 12 years old, but the degree of intelligence, and also the time lapse between the occurrence in July, 1969 and the trial in September, 1971. (People v. Pearson (1970), 126 Ill.App.2d 166, 170, 261 N.E.2d 519.) The court should further consider the lack of sex experience by the child, and her confusion of mind as to penetration when she experienced pain and discomfort. The defendant was neither charged nor found guilty of rape, but of indecent liberties with a minor and deviate sexual assault. (Ill. Rev. Stat. 1969, ch. 38, secs. 1 — 2, 11 — 4.) The evidence was sufficient to prove the defendant guilty beyond a reasonable doubt.

The defendant further argues that the case should be dismissed for failure to grant him a speedy trial under the constitutional provisions and also under the statute.

The right to a speedy trial is guaranteed by the Illinois Constitution (art. I, sec. 8) and is expressed by statute. Chapter 38, § 103 — 5 of the Illinois Revised Statutes 1969, reads as follows:

§ 103 — 5. Speedy Trial
(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.
(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.
(c) If the court determines that the State has exercised without success due diligency to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.
(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.

The State presented a petition to extend the 120-day period on August 13, 1971, alleging that Dr. Bourke, a material witness, was on vacation in Peru. After a full hearing, the court granted the State’s petition and set the trial for September 1, 1971. The defendant did not object to the court’s ruling at the time. In People v. Arndt (1972), 50 Ill.2d 390, 393, 394, 280 N.E.2d 230, Mr. Justice Davis said:

“The decision of whether an extension of the 120-day period should be granted rests within the discretion of the trial court, and its determination will not be disturbed unless there has been a clear abuse of discretion. (People v. Wollenberg, 37 Ill.2d 480; People v. Poland, 22 Ill.2d 175, 178.) The exercise of discretion by the trial court must be viewed in light of the situation as it existed at the time the matter was presented to the court, and not as it might appear in retrospect, or in view of subsequent events. People v. Poland, 22 Ill.2d 175, 178.
The effect of the continuance — the delay of the trial for an additional 60 days — was not violative of any constitutional right of the defendant; it was not intentionally oppressive and there was no showing of prejudice to the defendant. People v. Tetter, 42 Ill.2d 569, 574; People v. Love, 39 Ill.2d 436, 441, 443.”

After reviewing the record, we are satisfied there was adequate evidence to support the trial court’s judgment. For the foregoing reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

ADESKO and DIERINGER, JJ., concur.


author: Mr. JUSTICE DIER1NGER

text:
    McCann Construction Specialties Co., Plaintiff-Appellee, v. Alan Construction Co. et al., Defendants-Appellants.
    (No. 57915;
    First District (4th Division)
    May 23, 1973.
    Donald L. Johnson, of Curtis, Marks & Katz, of Chicago, for appellants.
    John P. Loftus, of Parson & Loftus, of Chicago, for appellee.
   Mr. JUSTICE DIER1NGER

delivered the opinion of the court:

The plaintiff, McCann Construction Specialties Co., commenced a mechanics’ lien foreclosure against Alan Construction Co., a general contractor, and R. Lavin and Sons, Inc., owners of the premises under construction, for materials supplied to a defaulting subcontractor at the construction site. Following a hearing in the Circuit Court of Cook County, the trial court entered judgment in favor of the supplier and against the owner and general contractor. The defendants herein appeal from that judgment.

The issues presented for review are: (1) whether, under the Illinois Mechanics’ Lien Act (Ill. Rev. Stat. 1967, ch. 82, §§ 1 — 39), a supplier may recover the cost of materials supplied to a defaulting subcontractor from the owner and general contractor who have acted in reliance on false sworn statements submitted to them by the defaulting subcontractor; and (2) whether the judgment of the trial court is contrary to the manifest weight of the evidence.

In the spring of 1969, the defendant, Alan Construction Co., a general contractor, was engaged by R. Lavin and Sons, Inc., to begin construction on a site owned by Lavin at 3426 South Kedzie Avenue in Chicago. Pursuant to a written agreement, Alan subcontracted the concrete work on the Lavin site to Thompson Construction Co. In late May, 1969, Thompson defaulted on its contract and left the job. Alan Construction Co. thereafter performed Thompson’s incomplete work.

At the time Thompson defaulted, Alan Construction Co. had been furnished sworn statements by Thompson which did not list McCann Construction Specialties Co. as a creditor. Based upon these sworn statements, Alan Construction Co. presented its sworn statement of creditors to Lavin, the owner of the site, which likewise did not list McCann as a creditor. On June 16, 1969, however, McCann, pursuant to section 24 of the Illinois Mechanics’ Lien Act, gave notice to the architect for the construction project of a claim of lien in the amount of $2,913.61 for materials delivered to Thompson Construction Co. at the site between the initiation of construction and May 3, 1969. Thereafter, on July 3, 1969, McCann filed its claim for a lien with the Cook County Recorder of Deeds, and on April 3, 1970, filed suit in the Circuit Court of Cook County to foreclose such hen. McCann took such action so as to perfect its claim against a retention account in the amount of $3,894.13 set aside for Thompson Construction Co. by Lavin.

The case was subsequently tried in the Circuit Court of Cook County and on March 31, 1972, judgment was entered in favor of McCann Construction Specialties Co. and against Alan Construction Co. and R. Lavin and Sons, Inc.

The first issue presented for review is whether, under the Illinois Mechanics’ Lien Act (Ill. Rev. Stat. 1967, ch. 82, §§ 1 — 39), a supplier may recover the costs of materials supplied to a defaulting subcontractor from the owner and general contractor who acted in reliance on false sworn statements submitted to them by the defaulting subcontractor.

The defendants contend that under section 24 of the Illinois Mechanics’ Lien Act a supplier has two ways of protecting his lien rights, namely, by furnishing notice of his employment to the owner and general contractor himself, or by relying on his immediate employer to do so. Since McCann Construction Specialties Co., the Supplier in the instant case, relied on the subcontractor who had ordered the supplies, Thompson Construction Co., to furnish notice of such employment to the owner and general contractor, and since Thompson Construction Co. failed to convey such notice to the owner and general contractor by submitting a sworn statement which did not list McCann Construction Specialties Co. as a creditor, the defendants argue McCann must bear the loss for any materials supplied. In attempting to support this contention, the defendants have relied on the decisions in Knickerbocker Ice Co. v. Halsey Bros. Co. (1914), 262 Ill. 241, and Sanaghan v. Lawndale National Bank (1967), 90 Ill.App.2d 254, both of which arose under the Illinois Mechanics’ Lien Act.

Pursuant to section 24 of the Illinois Mechanics’ Lien Act, McCann Construction Specialties Co., the supplier in the instant case, served notice of its claim for materials supplied to the construction site. Section 24 provides in part:

“Subcontractors, or party furnishing labor or materials, may at any time after making his contract with the contractor, and shall within sixty (60) days after the completion thereof, or, if extra or additional work or material is delivered thereafter, within sixty (60) days after the completion of such extra or additional work or final delivery of such extra or additional material, cause a written notice of his claim and the amount due or to become due thereunder, to be personally served on the owner or bis agent or architect, or the superintendent having charge of the building or improvement * *

The record clearly reflects the plaintiff delivered concrete supplies to the construction site between February 5, 1969, and May 3, 1969. The record also reflects the plaintiff gave notice of its claim of lien to the architect for the site on June 16, 1969, and thereafter, on July 3, 1969, filed its claim for lien in the amount of the materials supplied with the Recorder of Deeds. Such action by the plaintiff is clearly within the time limits of section 24 of the Illinois Mechanics’ Lien Act which requires written notice be served on the owner or his agent or architect within sixty days of completion of the work or the delivery of the materials. Moreover, the instant plaintiff also filed its claim for lien within sixty days of delivery of the materials with the Recorder of Deeds. We, therefore, reject the defendants’ contention that the plaintiff must bear the loss for the materials supplied since they had acted on sworn statements which did not list the plaintiff as a creditor, because it is clear the plaintiff acted well within the framework and time limits established by the Illinois Mechanics’ Lien Act. Additionally, we find the defendants’ reliance on the decisions in Knickerbocker Ice Co. v. Halsey Bros. Co., supra, and Sanaghan v. Lawndale National Bank, supra, as a basis for supporting their contention to be inappropriate inasmuch as such decisions dealt respectively with no notice of claim being filed by a subcontractor, and with an untimely notice of claim being filed by a subcontractor, as opposed to a timely notice of claim filed pursuant to the statute as is present herein.

The second issue presented for review is whether the judgment of the trial court is contrary to the manifest weight of the evidence.

The defendants contend the plaintiff failed to prove dehvery of all items upon which its claim of lien was based. Lacking specific proof of delivery of all such items, the defendants therefore contend the evidence is inadequate to support the judgment of the trial court in awarding the amount claimed by the plaintiff.

Upon a thorough review of the record, which contains delivery tickets and invoices establishing dehvery of the materials upon which the plaintiff’s claim of lien is based, we necessarily reject the defendants’ contention that the judgment of the trial court is not supported by the manifest weight of the evidence.

For the reason stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO and JOHNSON, JJ., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Edward Thigpen, Petitioner-Appellant.
    (No. 57472;
    First District (5th Division)
    May 25, 1973.
    James J. Doherty, Public Defender, of Chicago, (Harold A. Cowen, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald Garnes, Defendant-Appellant.
    (No. 57083;
    First District (5th Division)
    May 25, 1973.

      James J. Doherty, Public Defender, of Chicago, (Ira Churgin and John T. Moran, Jr., Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Thomas Mauet, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered tire opinion of the court:

Defendant was found guilty after a jury trial of the crimes of burglary in violation of Ill. Rev. Stat. 1969, ch. 38, § 19 — l, and for possession of burglary tools in violation of Ill. Rev. Stat. 1969, ch. 38, § 19 — 2. The following issues are raised by defendant in this appeal: whether the refusal of the trial court to grant a mistrial was reversible error, whether the admission into evidence of defendant’s prior conviction was reversible error, and whether the conviction for possession of burglary tools must be reversed since both it and the conviction for burglary arose out of the same conduct.

In the early hours of the morning of August 1, 1969, Louis Seghers heard a noise in the basement of his apartment that sounded like splintering wood and after investigation discovered defendant in the basement. Seghers restrained defendant with a gun while Seghers’ wife called the police. Upon examining the premises, it was discovered that Seghers’ personal locker had been broken into. While searching defendant, police officer Lawrence Traub found a small, bent screwdriver, a table knife, and a small spoon in defendant’s pocket.

Defendant was tried before a jury on January 21, 1970. During direct examination of police officer Traub, the following conversation occurred:

“PROSECUTOR: After you recovered these particular implements and placed the defendant under arrest what, if anything, did you next do?

OFFICER TRAUB: He was then transported to the 20th District Station where he was informed of his rights. He refused to make any statement and we processed him.

PUBLIC DEFENDER: Object, Judge, to that.

THE COURT: Sustained.

PROSECUTOR: He made no statement?

OFFICER TRAUB: That’s right.

PUBLIC DEFENDER: Object to that.

THE COURT: Disregard it.

PROSECUTOR: The State will join in the motion.”

The defense then moved for a mistrial which was denied. Defendant then took the stand and testified that he entered the apartment basement for the sole purpose of looking for toilet facilities. The State, for the purpose of impeaching defendant’s credibility as a witness, introduced into evidence a certified copy of defendant’s eight-year-old conviction for burglary. Defense counsel had previously objected to the admission of the prior conviction, claiming that the jury should, at the most, only be informed that defendant was previously convicted of a felony.

Defendant was found guilty of burglary and the possession of burglary tools. After a hearing in aggravation and mitigation, he was sentenced to three to twelve years for burglary and two years to two years and one day for possession of burglary tools, the sentences to run concurrently.

OPINION

Officer Traub’s reference during direct examination to defendant’s silence was volunteered and unresponsive to the prosecutor’s question. The prosecutor’s subsequent reference to defendant’s silence (“He made no statement?”), even after the court properly sustained an objection to Officer Traub’s statement, was certainly improper. The exercise by the accused of his constitutional right against self-incrimination shall not be subject to comment at trial. (Miranda v. Arizona (1966), 384 U.S. 436.) We agree with defendant that the prosecutor’s question was error.

In deciding whether the prosecutor’s question amounted to reversible error, we must apply the standard established in Chapman v. California (1967), 386 U.S. 18. The Supreme Court there held that in order for an error involving the denial of a federal constitutional right to be held harmless in a state criminal case, the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. In United States v. Wick (7th Cir. 1969), 416 F.2d 61, the court considered, as we must, the prejudicial effect of the introduction at trial of defendant’s reliance at the interrogation on his fifth amendment privilege. Applying Chapman, the court at 416 F.2d 61, 62, found no prejudicial error:

“Here, the two statements, one by the witness and one by the government attorney, amidst the overwhelming evidence against the defendant including two positive identifications, coüld not have contributed to the jury’s verdict, and we do not think that he was prejudiced.”

In the case at bar, the evidence against defendant is overwhelming, and his defense that he entered the building to seek toilet facilities is farfetched. Thus, we are bound by the Wick decision and hold that under Chapman v. California, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction.

Defendant next argues that the admission of his eight-year-old conviction for burglary violates the standards established in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695. In holding that the trial judge has discretion to deny the admission of a prior conviction, the Illinois Supreme Court in Montgomery adopted the guidelines established by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Defendant contends that the Montgomery rule was violated by the trial judge. We need not reach this question since we hold that Montgomery is not retrospective. The Illinois Supreme Court stated in People v. Montgomery (1971), 47 Ill.2d 510, 519, 268 N.E.2d 695, 700, that: “In our opinion, the provisions of this Rule should be followed in future cases.” We believe that the court’s choice of the words “future cases” indicates a clear intention to limit its decision to prospective use only. This court has already so limited Montgomery. (People v. Hyde (1971), 1 Ill.App.3d 831, 275 N.E.2d 239.) This trial, held on January 21, 1970, occurred before Montgomery was decided, January, 1971. Since the prior burglary is clearly admissible under pre-Montgomery standards, we find that the trial court’s ruling, allowing the introduction of the evidence, is proper. In so holding, we do not wish to be understood as indicating, one way or the other, any opinion as to the admissibility of such evidence if offered in a current trial under the circumstances of this case.

The final question raised is whether the conviction for possession of burglary tools must be reversed since both it and the conviction for burglary arose out of the same conduct. The state confesses error on this point, and we are required to follow People v. Blahuta (1970), 131 Ill.App.2d 200, 205-6, 264 N.E.2d 819, 822 — 3, which has already decided this issue:

“In the instant case there is nothing in the record which shows that the acts which constituted the crime of attempted burglary were independently motivated or otherwise separable from the conduct which constituted the offense of possession of burglary tools. Therefore, since attempted burglary is the more serious of the two offenses, * * # the judgment entered for attempted burglary is affirmed and the judgment entered for the offense of possession of burglary tools is reversed.”

The judgment entered for burglary is affirmed and the judgment entered for possession of burglary tools is reversed.

Affirmed in part, reversed in part.

DRUCKER, P. J., and ENGLISH, J., concur

       Section 19 — 1 provides in part:
      “(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building * * ° with intent to commit therein a felony or theft 6 *

       Section 19 — 2 provides in part:
      “Whoever possesses any key, too], instrument, device, or any explosive, suitable for use in breaking into a building * * * with intent to enter any such place and with intent to commit therein a felony or theft * *


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thurman Stephens, Jr., Defendant-Appellant.
    (No. 72-51;
    Second District
    June 6, 1973.

      Paul Bradley, of Defender Project, of Elgin, (Kenneth L. Gillis, of counsel,) for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found defendant, Thurman Stephens, Jr., guilty of armed robbery; he was sentenced to serve 8 to 12 years in the penitentiary. Two co-defendants were tried separately, found guilty, and their convictions affirmed by this court. See, People v. Iverson, 9 Ill.App.3d 706 (1973), and People v. Friday (1973), 11 Ill.App.3d 1071.

Three issues are raised: (1) The search warrant was issued without probable cause and was improperly executed by the issuing magistrate; (2) the interrogation of a defense witness by the trial judge constituted error; and (3) the court erred in allowing the introduction of certain evidence.

The complaint for a search warrant, signed on January 21, 1971, by a police sergeant, stated:

“On January 9, 1971, four persons forced their way into tire home of Mr. & Mrs. Jos. Garcia, 473 South St. Elgin, Kane County, Illinois; by threatening the four occupants of the home with guns, they took the above described property from the said occupants and fled the scene; Robert Soule has admitted participating in the robbery, and has implicated Thurman Stephens of above address, by stating that Stephens was one of the robbery participants, and that further that the property taken from the Garcia home was divided at the Stephens residence above described; Stephens is reported to have received over $20,000.00 as his share plus various items of personal property as described above; Stephens is known to the undersigned as having spent large sums of cash at Zimmerman Ford; and is reported to have purchased many items of personal property, said report being made by Robert Soule.”

Defendant made pretrial motions to quash the warrant and to suppress articles seized. The motion to quash was denied and the motion to suppress, allowed, except as pertinent to a pair of cufflinks and certain currency and coins.

Defendant contends the warrant should have been quashed, arguing that if the informant, Soule, had observed the proceeds of the robbery in defendant’s apartment on January 9th, it was unreasonable to believe that the proceeds would still be there 12 days later, on January 21st, the date of tire complaint.

No fixed rule sets forth the time within which a complaint for a search warrant must be made; the time should not be remote, but what constitutes “remoteness” must be decided on the basis of the individual case. (People v. Montgomery, 27 Ill.2d 404, 405 (1963); People v. Dolgin, 415 Ill. 434, 441-442 (1953).) The robbery proceeds observed by Soule in defendant’s apartment created sufficient probable cause and we hold that the 12 day interval was not so remote as to override the reasonable belief that some of the proceeds were present on the premises at the time the warrant issued.

It is further argued that the warrant was invalid because the signature of the issuing magistrate was stamped rather than written. The trial judge overruled this contention by taking judicial notice of the magistrate’s poor eyesight, his practice, for many years, of using a signature stamp in execution of his judicial duties, and the exclusive retention of the stamp in his personal possession. Defendant contends that the court erred in taking judicial notice of facts “not known to everyone to be true.” From this base he claims that, having established the fact that the magistrate’s signature was executed by means of a stamp, it became the State’s burden to prove its authenticity. On this type of motion, the burden of proof rests upon the defendant. (Ill. Rev. Stat. 1969, ch. 38, sec. 114 — 12(b).) It is the intent of the person executing his signature, not the manner by which it is executed, which determines the signature’s validity. “A ‘signature’ may be written by hand, printed, stamped, typewritten, engraved, photographed or cut from one instrument and attached to another * * (Black’s Law Dictionary, 4th ed. p. 1553.) Here, without further evidence to show that the signature was not the intended act of the magistrate, the single fact that the signature was stamped was insufficient to shift the burden to tire State or to overcome the presumed validity of the signature. We find that, under the circumstances, the warrant was legally executed.

At trial, the State established, through Soule, that the defendant was one of four who participated in the robbery and that the proceeds were thereafter divided at the defendant’s apartment. Defendant relied upon an alibi, testifying that at the time of the robbery, he, his girlfriend, his wife (from whom he was separated), and another woman were at his apartment; that Soule came to the apartment at about midnight and attempted to hand him a package to hold; that he was in the midst of a family “squabble” and didn’t take the package; that later he was aroused from bed by Soule who asked him to hold the package “to give to Ollie Burns the next day”; that when Soule left, defendant opened the package and found $5300; that the next day he used the money to buy a caí-, a television set and various other items. Defendant volunteered that he and Burns had, on quite a few other occasions, spent each other’s money.

In support of the alibi, defendant’s wife testified that he was indebted to her in the sum of $2500; that on the night of the crime, she was with the defendant in his apartment having come from Benton Harbor, Michigan, to discuss the repayment of the money due her. During testimony, she indicated that she did not know whether the defendant was employed at the time of her visit. At the conclusion of her examination, the court inquired:

“Q. Did you come down here on January 8th, 9th and 10th to get the $2,500 he owed you?

A. The 8th, 9th and 10th?

Q. Of January?

A. No, I didn’t.

Q. That was your testimony that was the purpose of your trip from Benton Harbor?

A. To come down, yes, I did.

Q. Now, your testimony here is that you didn’t know whether or not he was working in January?

A. I knew he was working. I also know that he lost his job in January.

Q. You just answered Mr. Dondanville that you did not know if he was working in January?

A. I know he was working the beginning of January. I don’t know when his job terminated.

Q. Was he working when you came down to get the $2,500?

A. I don’t know.

Q. You came to get money. Didn’t you discuss whether he was employed?

A. I don’t know.”

At this point, defense counsel requested to be heard outside the presence of the jury and there made a motion for a mistrial claiming that the court’s interrogation of the defendant’s wife, an attack on the witness’ credibility, was error. Defendant further requested that the court immediately instruct the jury that, by his remarks or questions, he had expressed no opinion as to the veracity or the credibility of any witness and did not mean to imply that he either believed or disbelieved the witness’ testimony.

Prior to ruling on the requests of defendant, the court stated:

“Her manner on the stand to me has been suggestive of evasion, particularly about this money when she answered Mr. Dondan-ville that she did not know whether or not this man was working. I actually wanted to know why because this was by her testimony, the entire purport of her trip from Benton Harbor on that occasion was to get money. Then she testified she didn’t know whether or not the man was even working. It is the credibility I am looking at. The Court wants the record to show that.”

The court further explained that defense counsel had misread his tone of voice and his questions, and therefore denied the motion for mistrial and declined to give an instruction to the jury at that stage of the proceedings.

The trial judge must not, directly or indirectly, convey to the jury his personal belief as to the credibility of witnesses. Determination of the credibility of witnesses is the function of the jury and any indication of disbelief on the part of the trial judge is apt to influence their verdict. This does not mean that a trial judge may not ask questions for the purpose of eliciting the truth but, in so doing, he must conduct himself so as not to give the jury an impression of his feelings. People v. Santucci, 24 Ill.2d 93, 98-99 (1962); People v. Marino, 414 Ill. 445, 450-451 (1953).

The State poses that the court’s interrogation of the alibi witness was permissible in order to elicit the truth and, further, that when instructions were given to the jury, the first was to the effect that any remark by the court was not intended to indicate any opinion as to either the facts or what the verdict should be.

It was incumbent upon the court to refrain from casting discredit upon defendant’s wife’s testimony, People v. Santucci, supra, p. 99. The court’s interrogation went beyond the realm of eliciting the truth of her former testimony and was of a nature which tended to discredit her. This type of questioning is best left to the prosecution. We find this to be error and our finding is supported by the judge’s statements in chambers, candidly admitting that he was looking at the witness’ credibility — a proper function of the jury.

Made a part of the search warrant was an inventory prepared by one of the victims; included thereon was “1 pair man’s cufflinks (bloodstone)”. At trial, this same victim, shown a set of cufflinks taken in the search, testified that while these were not the set described in the inventory, they were another pair taken in the robbery, but never listed. Soule, during cross-examination, testified that the cufflinks shown to him for identification were not those he had seen on the night of tire robbery. The defendant, claiming never to have seen the cufflinks prior to trial, moved to suppress their introduction into evidence and to strike all reference thereto. This motion was denied and the cufflinks admitted. The testimony of the State’s witnesses definitely established that these were not the cufflinks described in the search warrant. Therefore, the cufflinks were illegally seized and it was error for the trial court to deny defendant’s motion to suppress.

Having found error both in the trial court’s interrogation of one alibi witness and in the improper allowance of the cufflinks into evidence, we must determine whether the errors, taken together, were of such a nature as to require a reversal or whether they were harmless. To determine them to be harmless, it is necessary, based upon the facts and circumstances disclosed by the record, to believe that they were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 710-711, 87 S.Ct. 824 (1967); Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 287-288, 89 S.Ct. 1726 (1969); Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 429, 90 S.Ct. 1975 (1970).

A review of the record discloses that the State’s witness, codefendant Soule, had previously pled guilty on the condition that the State would recommend a sentence of from 2 to 5 years in return for his testimony against the other defendants involved. He named the defendant as a participant, also stating that it was the defendant who had supplied the information on the location of the home, its occupants and the telephone wire layout. His testimony was detailed, unshaken on cross-examination and corroborated in part by two of the victims who testified that during the course of the robbery, one of the participants was referred to as “Steve” or “Stephens”. As stated in the case of People v. Iverson, supra, and applicable to the instant case, Soule’s testimony was positive, credible and without motive to implicate the defendant.

To be weighed against this is defendant’s testimony disclaiming participation, his explanation for his sudden wealth ($5300, most of which was spent the following day) and his claimed justification in spending it.

We conclude that the errors found herein had no prejudicial impact upon the jury nor did they contribute to the jury’s finding of guilt. We believe, therefore, that the errors were harmless beyond a reasonable doubt. Harrington v. California, supra; People v. Wilson, 51 Ill.2d 302, 307-308 (1972).

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Curtis Brookshaw, Defendant-Appellant.
    (No. 72-203;
    Third District
    June 8, 1973.
    John L. Barton, of Marseilles, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This was a prosecution of a juvenile by indictment. After a jury verdict of guilty of murder, the defendant Curtis Brookshaw was sentenced to a term of 30 to 50 years by the circuit court of Kankakee County.

The defendant was arrested for the murder of Robert Griffin at about 1:18 A.M. on Jan. 1, 1972. He gave his age as 18, though in fact he was but 16. The victim was shot in the back of the head, at close range, by a shotgun blast at about 11:45 P.M. Two witnesses observed the defendant enter a crowded tavern, produce the weapon, a sawed-off shotgun, foe it at the victim and then make his way out of the building. He was previously known to the witnesses.

About five minutes after arrest, Detective Krizan had the defendant go with him from the booking desk to his office, where he advised him as to his rights pursuant to Miranda and asked if he wished to make a statement. Defendant answered, “No”. Not over 5 minutes elapsed and defendant was allowed to make a phone call. About an hour later Detective Whitehead arrived and he with Krizan took defendant to the office to take primer residue tests. Again defendant was admonished of his rights and he again answered “No.” After the test was taken defendant was returned to his cell. No interrogation was made. He had a telephone call and was visited by his sister at about 10:00 o’clock the next morning. At noon the detectives again had defendant brought to the office and again he was advised of his rights and asked if he wished to make a statement. At this point he stated that he understood his rights and wished to give a statement. He also signed a written “waiver of rights” after it was read and explained to him and read by him.

Defendant then gave a statement in which he admitted that he and the victim had come to blows earlier in the evening and that when Griffin went outside to get his gun the defendant got it first and ran away. He watched the victim go back into the Paradise Lounge. He went into the lounge, heard a shot, shot at the victim and left, throwing the gun away.

The defendant contends that the fact of assertion by the defendant that he did not want to make a statement, made after the first advice of the rights prescribed in Miranda, precluded the police from thereafter warning him as to those rights and inquiring whether he wanted to make a statement. He does not contend that he was not sufficiently warned, nor that he did not understand, nor that he was threatened, tricked or cajoled into a waiver. He contends, simply, that any request after one refusal is per se the product of compulsion.

After a hearing on a motion to suppress the statement the following facts appear and were so found by the trial judge when he denied the motion: that at the time the statement was given the Miranda warnings were read and explained to the defendant in great detail; that defendant had informed the officers that he was 18 years of age, though in fact he was 16 years, one month, and five days; that defendant was given the opportunity to use a telephone and to communiciate with his relatives; that he had been visited in jail, prior to giving the statement, by his sister Mary Ann Brookshaw; that he was given an opportunity to rest and to have normal meals served to prisoners at the Kankakee City Jail; that defendant was asked on three occasions whether or not he desired to give a statement; that on the first two occasions he indicated a desire not to give a statement and on the third occasion the statement was taken; that about 10 hours elapsed between the time of defendant’s apprehension and the time of making the statement; that interrogation was not continuous; that the officers were detectives, not juvenile officers and no juvenile officer was contacted; that no promises or threats were made to induce the making of the statement; that defendant made the statement knowingly, voluntarily and understandingly, and free from mental or physical coercion.

It also clearly appears that at no time did defendant request a lawyer and that there was no course of continued importunity or coercive interrogation in the guise of a request for reconsideration.

Defendant argues that when he was first advised of his rights and refused to waive them all further interrogation should have ceased and has cited the following passage from Miranda v. Arizona, 384 U.S. 436, 444-445, 16 L.Ed.2d 694.

“Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him”, and from 473-474:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”

He also cites People v. Shinn, 133 Ill.App.2d 923, 273 N.E.2d 679 and United States v. Crisp, 435 F.2d 354.

The Supreme Court, however, goes on to say, 384 U.S. 475, 16 L.Ed.2d at p. 724,

“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel”. # *
“An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.”

The precise contention and argument was recently raised before the Court of Appeals of New York in the case of People v. Gary, 31 N.Y.2d 68, 286 N.E.2d 263. There the court said:

“There is, however, a clear distinction between the continuation, whether by successive agencies or otherwise, of an “interrogation” thus foreclosed (see, e.g., Westover v. United States, 384 U.S. 436, 496-497, 86 S.Ct. 1602, 16 L.Ed.2d 694 decided with Miranda, 384 U.S. 436, 86 S.Ct. 1602, supra) and a subsequent request, upon reiteration of the requisite warnings, for reconsideration of an earlier decision to make no statement (cf. Westover, 384 U.S., at p. 496, 86 S.Ct. 1602). The narrow issue presented by this case, then, is whether the Assistant District Attorney was precluded from inviting the defendant to make a statement because, an hour before, a like request by a police officer had been declined. Neither Miranda nor any broader constitutional mandate prohibits a subsequent request, made otherwise than in the course of continued importunity or coercive interrogation in the guise of a request for reconsideration.

This conclusion is supported by authority (United States v. Brady, 2 Cir., 421 F.2d 681; United States v. Collins, 462 F.2d 792 (2nd Circ. 1972); People v. Rice, 16 Cal.App.3d 337, 94 Cal. Rptr. 4; and see Westover v. United States, 384 U.S. 436, 496, 86 S.Ct. 1602, 16 L.Ed.2d 694, supra; People v. McIntyre, 31 A.D.2d 964, 209 N.Y.S.2d 88; McIntyre v. New York, D.C., 329 F.Supp. 9).”

In People v. Shinn, 133 Ill.App.2d 923, 273 N.E.2d 679, this court held that after a request for counsel was made by defendant that a valid waiver of his privilege could not be presumed from his silence (requiring an express waiver as stated in Miranda). In United States v. Crisp, 435 F.2d 354, the conviction was affirmed and the facts were not similar.

Defendant next contends that he was denied his statutory right to protection against criminal prosecution without due process of law. He cites Kent v. United States, 383 U.S. 541, 16 L.Ed.2d 84; In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716; and sec. 702 — 7 of the Juvenile Court Act, in. Rev. Stat. 1971, ch. 37, sec. 702 — 7(1), 7(3).

This section has been amended effective Jan. 1, 1973 apparently to now require a due process hearing but in 1972 the applicable portions read:

“(1) Except as provided in this Section, no boy who was under 17 years of age * * * at the time of the alleged offense may be prosecuted under the criminal laws of this State * * *.
(3) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, the State’s Attorney shall determine the court in which that minor is to be prosecuted; however, if the Juvenile Court Judge objects to the removal of a case from the jurisdiction of the Juvenile Court, the matter shall be referred to the chief judge of the circuit for decision and disposition. If criminal proceedings are instituted, the petition shall be dismissed insofar as the act or acts involved in the criminal proceedings are concerned.

In Kent v. United States the Supreme Court, in construing the District of Columbia Juvenile Court Act, held that that Act required a hearing before the juvenile court of the District of Columbia, could waive jurisdiction and permit a minor to be prosecuted for a crime. The defendant in the instant case contends that the following language from In re Urbasek, 38 Ill.2d 535, 539 requires a due process hearing in juvenile court:

“Kent was limited in its application to the District of Columbia, but this limitation was effectively removed by the court’s admonition in In re Application of Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428, that neither the Fourteenth Amendment or the Bill of Rights is for adults only.”

The statement is out of context. In People v. Bombacino, 51 Ill.2d 17, 20 the court said, “The statute involved in Kent, however, vested the discretion to waive jurisdiction over the minor in the juvenile court. The Illinois Statute does not give the same discretion to the court. Rather the State’s Attorney in Illinois is vested with the discretion to determine whether or not to proceed criminally against a juvenile offender, subject only to the right of the judge presiding in the juvenile division to object, in which event the matter is referred to tire chief judge of the circuit court for his decision. * * * Under our act, a due process hearing as prescribed in Kent is not required at this stage of the proceeding.” (Emphasis added.)

Again, in People v. Hawkins, 53 Ill.2d 181, 290 N.E.2d 231, the court stated: ‘“Under our act a due process hearing as prescribed in Kent is not required at this stage of the proceeding.’ (Emphasis added.) (51 Ill. 2d at 20, 280 N.E.2d at 699.) Our holding in Bombacino is dispositive of this contention.”

The judgment of the circuit court of Kankakee County will be affirmed.

Judgment affirmed.

ALLOY, P. J., and SCOTT, J., concur.

       Compare the new Act effective Jan. 1, 1973.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Stewart, Defendant-Appellant.
    (No. 11575;
    Fourth District
    June 7, 1973.

      Saul Leibowitz, of Defender Project, of Chicago, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Brace Locher and Stanley Thomas, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was convicted in a jury tidal for the unlawful sale of narcotics and was sentenced to a term of not less than 20 nor more than 25 years. In his appeal, the defendant contends that he was not proven guilty beyond a reasonable doubt; that error was committed when the trial judge restricted the voir dire examination by defendant’s counsel; the trial judge erred in denying the defense motions for a continuance, change of venue, and dismissal of the jury panel. Defendant also contends that it was error to refuse to separate certain prospective jurors from the general veniremen during voir dire; that the closing argument of the state’s attorney was prejudicial; the guilty plea on another charge and sentence of 5 to 9 years entered four months later should be set aside because it was induced by the conviction appealed from in this case; and, finally, the sentence of 20-25 years was excessive.

The defendant’s conviction arises out of the unlawful sale of heroin to a police informer, one Raymond Wesley, on October 15, 1969. Defendant was indicted, arraigned and plead innocent to the charge. His trial was set for February 9, 1970, but the trial was delayed until March 10, 1970, due to various defense motions. Throughout voir dire examination the defense counsel examined the prospective jurors as to their impartiality, attitudes, experiences, and associations with blacks. Both defendant and his counsel were black. On two occasions the trial court restricted defense counsel’s line of questioning on the grounds it was redundant.

At trial, the testimony of Raymond Wesley (the police informer) was totally at odds with the testimony elicited from the defense witnesses. Wesley, who was himself a convicted felon, drug addict, and paid informant, testified that he had purchased four heroin capsules from the defendant; that the transaction was consummated in defendant’s apartment in the presence of the defendant, his wife, a baby, and one Wendell Smith; and that he took the four capsules and turned them over to the police officers waiting outside the defendant’s apartment. The three police officers involved in the case substantiated Wesley’s testimony, except that part of the testimony concerning itself with the events that transpired within the confines of the defendant’s apartment.

The defense called five witnesses — the defendant, his wife, and three teenage witnesses. They all gave similar testimony as to what happened on the night of October 15 in the defendant’s apartment. The defendant and his wife stated that Wesley came to their apartment in the evening on October 15, and that he tried to sell them some silverware and a coffeepot but that he did not have the articles with him and he left. The three teenagers stated that Wesley came to the defendant’s apartment and conversed with the defendant. They testified they could not hear the conversation but that Wesley only remained a few minutes, then left. In closing arguments, the prosecutor commented on the testimony of the three teenagers and contended that they were “well coached”.

As to the first issue of whether defendant was proven guilty beyond a reasonable doubt, from our review of the record we conclude that the question was one of credibility of the witnesses — an issue for the trier of fact. The defendant asserted that Wesley’s testimony was vague and contrary to the purported eye-witness testimony of the defendant’s five witnesses. Moreover, defendant cites People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615, for the proposition that habitual users of narcotics often become notorious liars. This is pertinent in light of the fact that Wesley was an addict-informer.

It is true that the testimony of the paid informer who is an addict must be closely scrutinized, but it cannot be disregarded if it is corroborated by other testimony or is believable in light of the circumstantial evidence presented (People v. West, 3 Ill.App.3d 106, 113, 278 N.E.2d 233). In People v. Hudson, 106 Ill.App.2d 130, 136, 245 N.E.2d 613, it was stated that “the fact that a witness is a narcotics addict bears only upon his credibility.” The convictions of many defendants have been affirmed in cases where the unlawful sale or exchange of narcotics was not witnessed by anyone other than the defendant and the informer if the attending circumstances lend credence to the informant’s testimony. People v. Hill, 83 Ill.App.2d 116, 122; 227 N.E.2d 117.

The supreme court in People v. Weaver, 18 Ill.2d 108, 114, 163 N.E.2d 483, stated:

“Although the defendant’s testimony and that of their witnesses was not contradicted by any positive testimony it was in conflict with the circumstantial evidence produced by the People. Upon this record we believe the jury could properly find the defendant guilty beyond a reasonable doubt. # # *”

The court went on to note that the jury cannot disregard the inferences that flow from the evidence presented to it.

The trier of fact saw Wesley, heard his testimony, observed his demeanor, saw the five defense witnesses, heard their testimony, and observed their demeanor, and found the informer’s testimony to be credible in light of the other circumstantial evidence presented by the state. This court should not usurp the trier of fact’s function on the matter of the credibility of witnesses, unless the proof was so unsatisfactory as to warrant a reasonable doubt as to guilt. People v. Johnson, 75 Ill.App.2d 42, 49, 221 N.E.2d 59.

The second and third issues relate to the rulings made during voir dire examination, and the trial court’s denial of the defense motions for a continuance, change of venue, dismissal of jury panel, and to separate those prospective jurors who had previously sat on a jury the week before on a similar case from the general veniremen.

Illinois Revised Statutes (1971), chapter 110A, paragraph 234, provides that voir dire examination will be initiated by the trial judge and may be supplemented by the parties. However, the parties may not directly or indirectly examine the jurors concerning matters of law or instructions. It is within the trial judge’s discretion as to how much latitude he will give to the parties in their supplemental examination. (People v. Lexow, 23 Ill.2d 541, 543, 179 N.E.2d 683.) There was no evidence to show that either counsel was prevented from disclosing any facts or reason why any prospective juror might be biased or otherwise unqualified. It is not error to limit the extent of the examination of a juror. (People v. Moretti, 6 Ill.2d 494, 129 N.E.2d 709.) While the limitations must be reasonable and calculated to further the ends of justice, the limitations found in this case do not establish an abuse of discretion.

The granting of a continuance to permit preparation of a case depends upon the facts and circumstances surrounding the request. The right to a continuance is not absolute but is a matter of discretion of the trial court. In this case the defendant asked for and received several continuances prior to the one denial of which he complains as being unjust. There is no showing on the part of the defendant of either an abuse of discretion or prejudice.

People v. Butler, 46 Ill.2d 162, 263 N.E.2d 89, is dispositive of the issue alleging that blacks were systematically excluded from jury panel. In Butler, the court ruled that purposeful discrimination may not be assumed or asserted but must be established (46 Ill.2d 162, at 164). The defendant, in other words, must establish the existence of any purposeful discrimination.

The trial court did not err in refusing to separate prospective jurors from the general veniremen during voir dire, notwithstanding the fact that some of the prospective jurors had served on a jury the previous week where defendant’s counsel represented another on similar charges. The mixing of the jurors did not amount to a denial of the defendant’s right to a fair trial.

The next issue deals with the propriety of some of the remarks made by the prosecution in closing arguments. As a general rule, arguments of the prosecutor that charges a defendant’s counsel with attempting to free his client by trickery results in a deprivation of a fair trial and are not permitted (People v. Freedman, 4 Ill.2d 414, 422, 123 N.E.2d 317). In this case the prosecutor said when referring to the testimony of the three teenage defense witness: “Those witnesses were well coached, those witnesses testified to the same thing.” He said nothing about trickery or impropriety on the part of the defense counsel. The prosecutor made a permissible comment on the evidence directed at the credibility of the defendant’s witnesses.

The issue concerning the setting aside of the guilty plea entered by the defendant in another conviction subsequent to his conviction in this case is not properly before this court and will not be discussed.

Lastly, we consider the question of excessive sentence. Defendant was found guilty by a jury of a violation of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22) and was sentenced to a term of not less than 20 nor more than 25 years. Subsequent to his conviction, the Uniform Narcotic Drug Act was repealed and replaced by the Controlled Substances Act. (Ill. Rev. Stat. 1971, ch. 56½, par. 1100, et seq.) Chapter 56V2, paragraph 1601, provides that if the prosecution of an offense has not reached a final adjudication, then for the purpose of sentencing the sentence provisions under the present law would apply if they are less than the prior law. This court and the supreme court have held that a case pending on appeal has not reached a final adjudication. Therefore, the new and lesser sentencing provisions are applicable in this case. People v. Bailey, 1 Ill.App.3d 161, 273 N.E.2d 74; People v. Isom, 4 Ill.App.3d 407, 280 N.E.2d 485; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.

In this case there was no determination of the amount of heroin unlawfully sold. While such determination was not relevant under the prior statute, it is determinative of the penalty under the now effective Controlled Substances Act. Illinois Revised Statutes, 1972 Supp., ch. 56½, par. 1401(a), states that it is a Class 1 felony for the delivery of 30 grams or more of heroin. Chapter 56%, paragraph 1401(b), provides that it is a Class 2 felony for the delivery of any other amount of heroin.

For a Class 1 felony there is an imposition of a maximum term of imprisonment of any term in excess of 4 years. (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1005 — 8 — 1(b)(2).) Chapter 38, paragraph 1005 — 8 — 1(c) (2) , requires that the minimum term shall be at least 4 years. Also, chapter 56%, paragraph 1401(a), provides that any fine imposed shall not be more than $200,000.

For a Class 2 felony a maximum sentence of any term in excess of 1 year but not exceeding 20 years is prescribed. (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1005 — 8 — 1(b)(3).) Chapter 38, paragraph 1005 — 8 — 1(c) (3) states:

“[F]or a Class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court;”

Moreover, chapter 56%, paragraph 1401(b), limits any fine imposed for a violation of paragraph 1401(b) to $25,000.

The conviction is affirmed. The sentence is vacated and remanded for resentencing. Prior to resentencing, there must be an evidentiary hearing to determine the amount of heroin involved in tire unlawful sale in order to impose the appropriate sentence that comports with the new Controlled Substances Act and the new Unified Code of Corrections. .

Judgment affirmed, sentence vacated and remanded with directions.

SMITH and SIMKINS, JJ., concur.


author: PER CURIAM:

text:
    Elmer Stevens, Plaintiff-Appellant, v. William Yonker, Defendant-Appellee.
    (No. 57381;
    First District (1st Division)
    May 21, 1973.
    HALLETT, J., took no part.
    Piacenti, Cifelli & Pigato, of Chicago Heights, (Nicholas Liontakis, of counsel,) for appellant.
    Tim J. Harrington, of Chicago, (A. J. Petrucelli, of counsel,) for ap-pellee.
   PER CURIAM:

On January 5, 1968, the plaintiff filed a complaint against the defendant, “William Yonker”, asking $100,000 damages for injuries sustained on June 8, 1966, when defendant’s automobile “ran into” the rear of the vehicle in which the plaintiff was riding. The return of summons shows it was served by leaving a copy with “Mrs. W. Yonker (wife)”, a person of defendant’s family, on January 9, 1968. On January 22, 1968, defendant, through his attorney, filed an appearance and answer which admitted ownership of the automobile, but denied the other material allegations of the complaint.

On February 1, 1972, the trial court granted defendant’s motion for summary judgment, dismissed the plaintiff’s complaint, and denied plaintiff’s motion, filed under section 21(3) of the Civil Practice Act, to amend the pleadings to correct the name of “William Yonker” to read “Bruce Yonker”, making the following findings of fact: Bruce Yonker is the correct name of the driver of the motor vehicle in question; plaintiff’s attorney instructed his secretary to type the name of Bruce Yonker on the complaint but she inadvertently typed William Yonker instead of Bruce Yonker, and plaintiff’s attorneys intended that Bruce Yonker be designated as the defendant; the statute of limitations for the joinder of additional defendants expired June 8, 1968; William Yonker is the father of Bruce Yonker; Bruce Yonker did not at any time relevant to the matters complained of act as an agent or servant for William Yonker.

The single issue is whether plaintiff sued the proper party but under the wrong name or sued the wrong party. Plaintiff sued and served William, who was Bruce’s father and the owner of the automobile in question. No service was attempted or made on the defendant’s son, Bruce, the driver. Under the facts, there is no doubt that the plaintiff sued the wrong party. This is not changed by the fact that the owner and driver of the vehicle in this instance had the same last name, were father and son, and resided in the same household.

The cases cited by the plaintiff are distinguishable in that in those cases the proper party was sued under the wrong name. For example, in Janove v. Bacon (1955), 6 Ill.2d 245, 250, 128 N.E.2d 706, the corporation was served but under an incorrect name, service being upon an agent of the corporation. Similarly, in Van Burkom v. Holquist (1962), 36 Ill.App.2d 254, 183 N.E.2d 890 (Abst.) the proper defendant was served personally and the defendant did not deny that he was the person intended to be served; hence, the court held the case to be one of misnomer, rather than of mistaken identity. To the same effect is Chamness v. Minton (1963), 39 Ill.App.2d 325, 188 N.E.2d 873. More in point is Proctor v. Wells Bros. Co. of New York (1914), 181 Ill.App. 468 Aff'd 262 Ill. 77, 104 N.E. 186, where plaintiff sued “Wells Bros.”, an Illinois corporation, and later, after the statute had run, “Wells Bros. Co. of New York”. The court held that the commencement of an action against the one was not the commencement of an action against the other.

William Yonker was a real party in interest and the court found he was not the master or principal of his son. This was not a misnomer and plaintiffs motion under Section 21 of the Civil Practice Act was properly denied.

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

Judgment affirmed.

Mr. JUSTICE HALLETT took no part in the consideration or decision of this case.