text:
    Pioneer Trust & Savings Bank, as Trustee Under Trust No. 12142 and Joseph N. Novelle and Lillian L. Novelle, Plaintiffs-Appellees, v. County of McHenry, a Body Politic and Corporate, Defendant-Appellant.
    Gen. No. 67-79.
    Second District.
    November 29, 1967.
    Supplemental opinion and rehearing denied January 18, 1968.

      Roy C. Palmer, Assistant Attorney General, of Chicago, and Richard R. Cross, of Woodstock, for appellant.
    Jack M. Siegel, of Chicago, and Joslyn, Joslyn & Green, of Woodstock, for appellees.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

Pioneer Trust & Savings Bank, as Trustee, the record titleholder of the land in question, and Joseph N. Novelle and Lillian L. Novelle, the beneficial owners, brought this action against the defendant, County of McHenry, asking that defendant’s zoning ordinance, as applied to plaintiffs’ property, be declared arbitrary and void; that the defendant, its officers and agents, be enjoined from enforcing the provisions of such ordinance against the property in question; and that they be directed to issue necessary permits, licenses, etc., so that such property may be used for a mobile home park and a mobile home sales operation. The trial court entered a judgment in favor of the plaintiffs, from which the defendant has appealed.

Under defendant’s zoning ordinance, there is no general zoning use classification under which land may be developed or used as a trailer park or camp as a matter of right; such use, however, is permitted as a special use.

Section 15 of the defendant’s zoning ordinance relating to the special or conditional use of land provides, in part, as follows:

“The purpose of this classification is to establish standards for those uses which, because of their unique characteristics cannot be properly classified in any particular district or districts, without consideration, in each case, of the impact of those uses upon neighboring land and of the public need for the particular use at the particular location.
“A. The Conditional Uses are as follows:
“(1) Uses publicly or municipally operated and those uses traditionally affected with a public interest.
“ (2) Uses entirely private in character, but of such an unusual nature that their operation may give rise to unique problems with respect to their impact upon neighboring property and public facilities.
“STANDARDS: No conditional use shall be approved unless, after public hearing, and recommendation of the McHenry County Zoning Board of Appeals, as is provided, the Board of Supervisors shall find:
“(1) That there is a public necessity for the conditional use.
“ (2) That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare.
“(3) That the conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property value within the neighborhood.
“ (4) That the establishment of the conditional use will' not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district.
“(5) That adequate utilities, access roads, drainage, and the other necessary facilities have been or are being provided.
“(6) That adequate measures have been or will be taken to provide ingress and egress so designed as to minimize traffic congestion in the public streets.
“ (7) That the conditional use shall in all other respects conform to the applicable regulations of the McHenry County Zoning Ordinance for the district in which it is located.
“B. Upon a finding of the McHenry County Board of Appeals that the above conditions have been met, and upon the approval of said finding by the Board of Supervisors, in accordance with the provisions of this Ordinance, they shall cause to be issued a Conditional Use Permit to the applicant, incorporating within such permit the conditions under which it is issued, including, but not limited to, restrictions upon the height and bulk of any structure so approved, the duration of the permit so approved, and other regulatory restrictions as shall be by them deemed necessary.
“C. The following uses of land or structures, or both, may be permitted within any district as herein defined, subject to the provisions as hereinabove set forth:
“(18) Trailer Camps as defined in Section 1;
“(19) Trailer Sales as defined in Section 1;

The subject property, consisting of approximately 33 acres, is vacant, is zoned “1-1” Light Industrial District and was so zoned when plaintiffs purchased it. At the time of the purchase, the land was a part of a larger tract of approximately 110 acres, which plaintiffs purchased for $110,000.

The Chicago and North Western Railroad forms the northeasterly boundary of the property in question, and the Northwest Highway — a heavily traveled highway— the northwesterly boundary. It is abutted by a public highway on the west and on the west side thereof is a par-three golf course. Immediately to the east of the property is a 66-acre tract, also owned by plaintiffs, which is zoned for farming. Across the road, to the south of the land owned by plaintiffs, is a single-family residence. Directly across the highway, to the north of the property, is land zoned 1-1, Light Industrial District. Beyond that, to the northeast and across the highway and railroad, is land zoned 1-2 and used for a quarry. West of the property, along the Northwest Highway, are a number of commercial establishments.

Plaintiffs filed a petition with the county Zoning Board of Appeals for a conditional use permit for a trailer camp and sales operation, as required by section 15 of the zoning ordinance. The Zoning Board of Appeals recommended that the petition be denied; the County Board of Supervisors concurred and denied the petition for the permit. Plaintiffs then filed this suit. The matter was referred to a master who found: (1), that all of the conditions imposed by section 15 of the Zoning Ordinance have or will'be met with the exception that plaintiffs have failed to establish that there is a "public necessity” for the use proposed; (2), that the requirement of establishing “public necessity” is unconstitutional and effectively operates to prohibit an otherwise lawful use of land; (3), that section 15 is unconstitutional in that it is arbitrary and deprives plaintiffs of property without due process of law; and (4), that said section creates a classification which bears no substantial relation to the public welfare, and is, therefore, void generally or invalid as applied to plaintiffs’ property.

The trial court overruled defendant’s objections to the master’s report and adopted its findings except (4), which the court adopted only to the extent that section 15 was invalid as applied to the subject property.

Illinois courts have recognized the special use technique, albeit not without some misgivings, as a valid zoning devise, and under such use, the defendant county had the right to prohibit certain land uses within its corporate limits except by the issuance of a special permit. Ward v. Village of Skokie, 26 Ill2d 415, 186 NE2d 529 (1962); Kotrich v. County of Du Page, 19 Ill2d 181, 166 NE2d 601 (1960); Illinois Bell Tel. Co. v. Fox, 402 Ill 617, 85 NE2d 43 (1949); La Salle Nat. Bank v. County of Cook, 60 Ill App2d 39,208 NE2d 430 (1965); International Harvester Co. v. Zoning Board of Appeals of City of Chicago, 43 Ill App2d 440, 193 NE2d 856 (1963); Rosenfeld v. Zoning Board of Appeals of Chicago, 19 Ill App2d 447, 154 NE2d 323 (1958). In Kotrich, the court specifically held that the County Zoning Enabling Act (Ill Rev Stats 1965, c 34, par 3151) permits the creation of a residual category of special uses which cannot, without distortion, be included in the customary use classifications.

Special use provisions are of relatively recent origin, but have become commonplace in modern zoning ordinances. Furry, Special Use: A New Concept in Illinois Zoning, 48 Ill BJ 488 (1960); Babcock, Zoning Administration in Illinois, Chi L Rev, Vol 26, No. 4, pp 509, 519 (1959). The recent and widespread utilization of this technique and its validity as a means to regulate the use of land, even when challenged under various claims of unconstitutionality, are indicated in both Kotrich v. County of Du Page, supra, 185, and La Salle Nat. Bank v. County of Cook, supra, 45, and cases cited therein.

The function of the special use classification is to provide for infrequent types of land use which are necessary and desirable, but which are potentially incompatible with the uses usually allowed in residential, commercial and industrial zones. To categorize such uses in any of the given use zones, presents a potential danger of excluding beneficial uses or including those not compatible with surrounding uses in most situations. Illinois Bell Tel. Co. v. Fox, supra. The special use technique provides a flexible approach to a narrow and difficult facet of land use control. It permits a use which otherwise might be entirely prohibited in certain zones where the adverse effect on surrounding land is not too great, and the public need for the specific use at the particular location warrants it. Lazarus v. Village of Northbrook, 31 Ill2d 146, 150, 151, 199 NE2d 797 (1964); Kotrich v. County of Du Page, supra, 184,185.

In order to sustain the validity of the exercise of the police power in limiting land to a special use classification as a trailer camp, such limitation must be founded on a reasonable basis in the public welfare. In Suburban Ready-Mix Corp. v. Village of Wheeling, 25 Ill2d 548, 552, 185 NE2d 665 (1962), the court held that a zoning ordinance is invalid, which prohibits from all industrial use districts, the construction of a concrete mixing plant; and in Camboni’s, Inc. v. Du Page County, 26 Ill2d 427, 429, 187 NE2d 212 (1962), the court specifically recognized that a trailer camp use was a proper subject for inclusion within a special use category. The rather unique nature of a trailer camp and the problems connected with such a land use are suggested in the annotation dealing with restrictions on the use of trailers for residential purposes. 96 ALR2d 232. In Special Use: A New Concept in Illinois Zoning, supra, the author, in listing those uses typically included in special use classifications due to their uniqueness, includes trailer camps. In Babcock, Zoning Administration in Illinois, supra, 521, the author points out that the special use technique, while originally confined to a few homogeneous items, has grown to include a number of “troublesome” uses such as “trailer camps. . . .”

One of the plaintiffs’ own witnesses confirmed the unique and unusual nature of a trailer camp. In referring to the character of a mobile home park, he stated: “It is a peculiar classification by itself — it is neither residential nor commercial; they are conjunctive uses, they are necessary to each other. You could not classify a mobile home’s (sic) park as a residential community because of the commercial aspect and the nature of a mobile home’s (sic) sales yard and the display areas, nor could you classify them as all commercial because of the location of the residential uses that are there and they are more dense than others. . . . Other residential uses, and less dense than other commercial uses.”

Thus, plaintiffs’ witness pointed out the unique characteristics of a trailer camp, especially where, as here, trailer sales are to be connected with the trailer park. Even absent the connected sales, we believe that a trailer park is the type of use potentially incompatible with the uses ordinarily allowed in residential, commercial or industrial zones; and that it is appropriate that a trailer park be included within a special use category. Camboni’s, Inc. v. Du Page County, supra.

It has long been established law that a zoning classification will be upheld if it bears a substantial relation to the public health, safety, comfort, morals and welfare. See: Marquette Nat. Bank v. County of Cook, 24 Ill2d 497, 501, 182 NE2d 147 (1962); La Salle Nat. Bank v. County of Cook, 12 Ill2d 40, 47, 48, 145 NE2d 65 (1957); Zweifel Mfg. Co. v. City of Peoria, 11 Ill2d 489, 494, 144 NE2d 593 (1957), and cases cited therein. This principle of law is a constitutional requisite to the validity of a special use. Camboni’s, Inc. v. Du Page County, supra, 432.

Plaintiffs also assert that section 15 of the zoning ordinance is an unlawful delegation of legislative authority, and in support of such contention cite City of Rockford v. Hey, 366 Ill 526, 9 NE2d 317 (1937) and Welton v. Hamilton, 344 Ill 82, 176 NE 333 (1931). They seek to distinguish Kotrich by saying that in Kotrich the final decision with reference to granting a permit rests with the legislative body, the Board of Supervisors. However, section 15 of the defendant’s zoning ordinance, like that in the Kotrich case, confers upon the legislative body, the Board of Supervisors, the final determination of whether a permit shall issue.

Further, defendant’s zoning ordinance provides seven standards (set forth above) which must be met before a permit may be granted. Thus, the objection that there are no standards for determining when a permit shall be granted, as required by Welton, to the extent that such a requirement has any vitality in cases of this nature (see: 1963, Ill Law Forum, No. 1, 116, 119; Babcock, Zoning Administration in Illinois, supra; Dallstream and Hunt, Variations, Exceptions and Special Uses, 1964 Ill Law Forum, No. 2, 213, 216-222 inel.), is not applicable in this case. The ordinance standards, which control when such a permit shall issue, are sufficiently adequate that the Board of Supervisors is required to weigh the desirability of the proposed use against its potential adverse impact.

Plaintiffs also complain that the first standard for the issuance of a special permit requires a finding “that there is a public necessity for the conditional use.” Such a finding is, in essence, the basis for the granting of any special use. A special use is one which carries with it a potential incompatibility with surrounding uses. It should be justified, if at all, by a public need for the specific use at the particular location. Kotrich v. County of Du Page, supra, 187. Section 15 of the zoning ordinance states that its purpose is to establish standards for those uses which, because of their unique character, cannot be classified as within any general district without considering, in each case, the impact on neighboring land and of the “public need for the particular use at the particular location.”

The public need is a valid and essential consideration. The word “necessity” as used in the ordinance must be read to mean “expedient” or “reasonably convenient.” Illinois Bell Tel. Co. v. Fox, supra, 631. The specific ordinance requirement of a finding of public need or necessity as a prerequisite to the issuance of a special use permit is neither uncommon nor invalid. Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals of City of Chicago, 25 Ill2d 65, 182 NE2d 722 (1962); International Harvester Co. v. Zoning Board, supra; Rosenfeld v. Zoning Board of Appeals of Chicago, supra. Those cases which deal with the constitutionality of a general zoning use classification as applied to a particular property are not applicable. In those cases, feasibility, or need, or public need, at best, is but one factor to consider. In determining whether a special use permit should be granted, special factors may be considered, and as indicated in the cases cited above, the finding of public need or necessity is an appropriate prerequisite.

Plaintiffs also seek to distinguish Kotrich by stating that there the court was considering a “special use” while here we are considering a “conditional use.” We consider this a distinction without a difference. Contrary to plaintiff’s contention, it is a difference only in name. See: Babcock, Zoning Administration in Illinois, supra, 519, 520.

Plaintiffs also assert that courts of other jurisdictions have not hesitated to strike down ordinances which in effect barred trailer camps from the jurisdiction unless a special permit was received. Among the cases cited are: Smith v. Building Inspector for Township of Plymouth, 346 Mich 57, 77 NW2d 332 (1956); Clark v. Joslin, 348 Mich 173, 82 NW2d 433 (1957); Koston v. Town of New-burgh, 45 Misc2d 382, 256 NYS2d 837 (1965). Contrary to plaintiffs’ contention, none of these cases permitted a trailer park use by special permit. They absolutely prohibited trailer parks or camps within the jurisdiction. The courts held that trailer parks were not nuisances per se and could not be absolutely prohibited.

In the case at bar, we are not confronted with an ordinance absolutely prohibiting trailer parks. There is no contention that trailer parks are nuisances, per se; rather, the classification of a trailer park within a special use category suggests it is a use which may be necessary and desirable. The evidence, further, does not warrant our assuming that the practical effect of the ordinance is to exclude trailer parks from McHenry County. See: Camboni’s, Inc. v. County of Du Page, supra, 429 ; 96 ALR2d 232, 238.

The circuit court held that section 15 of the zoning ordinance — the special or conditional use provision — was invalid as applied to the subject property. We believe that such holding misconceives the issues presented to the court with reference to the zoning procedures under a special use provision. This is not the traditional type zoning case where the constitutionality of a general zoning use classification as applied to a particular piece of land is challenged. The underlying zoning, the “I — 1” Light Industrial District classification, is not challenged. If such were the case, the typical issue would be whether the general restriction, though valid in general application, is invalid as applied to the particular parcel of land, and the normal tests for determining such issue would govern. The litigation before the trial court related to the denial of a special use permit and the issues pertaining thereto are the ones before us for decision.

The special use ordinance in question presented to the trial court, and to this court on review, the question of whether certain uses may be precluded from any given district unless certain standards or prerequisites are first found to have been met. The role of the court in such a case is to determine, first, whether the particular use is properly within the special use classification; and, second, if so, whether the specified standards or prerequisites to the granting of a permit are reasonable. We have determined that a trailer park is properly within the special use classification. The only standard which the plaintiffs challenged was the requirement of a finding of a public necessity. We find that such a prerequisite to the granting of a permit is reasonable, and, indeed, commonplace.

The only inquiry properly remaining is whether the challenged and required standard of public necessity has been met. Stated differently, could we properly determine, on the record before us, that the Board of Supervisors acted in an arbitrary and unreasonable manner in refusing to issue the permit? While we question whether this issue has been properly preserved for review, we note that the master and the trial judge found that the plaintiffs failed to establish the prerequisite of public necessity. The findings of the master and the trial judge in this respect are unquestionably correct.

Absent some constitutional or other objection to the ordinance not presented in the case at bar, the issuance of a permit is mandatory if each of the required standards are found to exist and are established by the evidence. Without proof on the part of the plaintiffs showing a public necessity for the special use, it would have been improper for the Board of Supervisors to issue a permit. The burden was on the plaintiffs to prove a public necessity for the special use requested; they assailed the validity of the special use provisions of the ordinance and it was likewise their burden to prove by clear and convincing evidence that it was arbitrary and unreasonable. On the facts before us, the refusal of the County Board was not arbitrary; insofar as we can determine from the record, it was proper.

We are of the opinion that the trial court erred in entering judgment for the plaintiffs. The special use provisions of the zoning ordinance are valid, and the refusal of the McHenry County Board of Supervisors to issue the special use permit, under the facts and circumstances of this case, was proper. Therefore, the judgment of the trial court is reversed.

Judgment reversed.

MORAN and ABRAHAMSON, JJ., concur.

Supplemental Opinion Upon Denial of Petition for Rehearing.

The plaintiffs filed a petition for rehearing wherein they assert that we did not consider the underlying 1-1 Light Industrial Zoning Classification as applied to their property. We did not do so for the reasons hereinafter stated.

The master in chancery, who took the proofs in the case, defined the issues of the case. He noted that pursuant to section 15 of the McHenry County Zoning Ordinance, the plaintiffs applied for a conditional use permit and that the ordinance provides that no such permit shall issue unless the Board of Supervisors shall find compliance with its seven standards listed in section 15, which are set forth in full in our opinion. In further delineating the issues, he stated:

“The plaintiffs allege as part of their case, the full compliance with the foregoing requirements. Such allegations are traversed by the defendants.
“The ultimate questions presented to the Court are:
“1. Whether Section 15 of the McHenry County Zoning Ordinance is void and unenforceable because the authority to require conditional use permits has not been delegated to counties.
“2. Whether Section 15 is unconstitutional because it purports to establish an unreasonable classification in that it discriminates against certain uses which are reasonably compatible with other uses permitted in established district, no district being provided for such uses.
“3. Whether counties are without authority to create conditional use classification whereby otherwise lawful uses are effectively prohibited unless the County Board of Supervisors find that there is a ‘public necessity’ for the proposed conditional use.
“4. Whether Section 15 is unconstitutional because of its lack of certainty and vagueness.”

The final judgment order appealed from — presumably prepared by the plaintiffs — set forth the jurisdictional requirements, the ownership of the subject property, its legal description and related the pertinent facts concerning the litigating parties. It found the issues in the cause for the plaintiffs and against the defendants, and overruled the exceptions to the master’s report. Thereupon, the court found and adjudged:

“a. All the conditions imposed by Section 15 of the McHenry County Zoning Ordinance under ‘Standards’ have or will be met by the plaintiffs with the exception that plaintiffs have failed to establish that there is a ‘public necessity’ for the use proposed as required in subparagraph 1.
“b. The requirement that a public necessity be established as a condition precedent to the issuance of a conditional use permit as applied to trailer camps and trailer sales is unconstitutional and constitutes an exercise of a power not delegated to the County Board of Supervisors.
“c. Section 15 purports to create a classification that bears no substantial relation to public welfare and is therefore invalid as applied to the subject property.
“7. That Section 15 of the McHenry County Building and Zoning Ordinance is unenforceable as applied to the subject property.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED AS follows:
“1. That Section 15 of the McHenry County Building and Zoning Ordinance is null and void as applied to the subject property.....”

It was from this judgment order that the defendant appealed. The plaintiffs filed no post-trial motion seeking to broaden the terms of the order and filed no cross appeal therefrom as provided for in former Supreme Court Rule 35 and present Rule 303. (Ill Rev Stats 1965, c 110, par 101.35(1); Ill Rev Stats 1967, c 110A, par 303 (b).) Had the plaintiffs, in fact, sought an adjudication relative to the validity of the underlying “1-1” Light Industrial classification — an issue not included in the primary appeal in this case — they could have sought such relief by post-trial motion and could have filed notice of cross appeal from that part of the order which failed or refused to consider such issue. A notice of cross appeal is mandatory if an appellee desires to appeal from all or any part of an order, and unless given, the matters sought to be reviewed are not preserved for such review. People ex rel. Southfield Co. v. Jarecki, 408 Ill 266, 271-276 inch, 96 NE2d 569 (1951) ; Robbins v. Campbell, 65 Ill App2d 478, 485, 486, 213 NE2d 641 (1965); Bawden v. Furlong, 16 Ill App2d 174,185,147 NE2d 889 (1958).

At page 4 of plaintiffs’ brief, they designate the issues presented for review, as follows:

“1. Whether the McHenry County Zoning Ordinance as applied to the subject property is invalid insofar as it prohibits the establishment on the subject property of a mobile home park and mobile home sales except as a conditional use.
“2. Whether the refusal of a ‘conditional use’ for trailer park and trailer sales on the subject property was unreasonable, arbitrary and invalid.
“3. Whether the County of McHenry has the authority to create a category of ‘conditional uses,’ including trailer parks and sales, as provided in Section 15 of the ordinance.
“4. Whether the County of McHenry has the legal right to bar trailer parks and sales from all districts in the County including the 1-1 District except as ‘conditional uses.’ ” (Italics Ours.)

The case was not decided in the trial court on the issue of the validity of the 1-1 zoning classification as applied to the plaintiffs’ property. It is clear from the issues as defined by both the master and by the plaintiffs, and as determined by the judgment order, that the plaintiffs attacked the provisions of section 15 of the County Zoning Ordinances insofar as they prevented the use of their property for a mobile home park and mobile home sales use. In both the trial and the appeal of this case, the fact that the property was located in an 1-1 zoning classification was nothing more than a fortuitous circumstance.

In McMillen v. Rydbom, 56 Ill App2d 14, 205 NE2d 813 (1965), at page 28, we pertinently stated:

“The theory, upon which a case is tried in a lower court, cannot be changed on appeal; and an issue not presented to, or considered by the trial court, cannot be raised for the first time on review. Woman’s Athletic Club of Chicago v. Hulman, 31 Ill2d 449, 454, 202 NE2d 528 (1964); Benson v. Isaacs, 22 Ill2d 606, 610,177 NE2d 209 (1961); In re Estate of Leichtenberg, 7 Ill2d 545, 548,131 NE2d 487 (1956) ; McCook Window Co. v. Hardwood Door Corp., 52 Ill App2d 278, 285, 202 NE2d 36 (1st Dist 1964); People ex rel. Bourne v. Johnson, 48 Ill App2d 307, 309,199 NE2d 68 (1st Dist 1964).”

The unique characteristics of certain uses of land which preclude its classification in any particular district or districts, give rise to the special or conditional use techniques. When any designated land use is properly classified as a special or conditional use, such use may not be permitted except upon compliance with the applicable ordinance provisions relative thereto. Such provisions may include certain standards or conditions which must be satisfied.

In the case at bar, the issues before the trial and review courts were the validity of and the compliance with section 15 of the McHenry County Zoning Ordinances. If the plaintiffs can ignore this section, or fail to comply with its standards, and yet obtain the desired use of their land, then the special use ordinance is completely circumvented. Such result should not obtain unless section 15 of the ordinance, or some pertinent part thereof, is unconstitutional and void.

In our opinion we specifically determined the validity of section 15 of the McHenry County Zoning Ordinances, and the right thereunder to include a trailer park within a special use classification.

The County Zoning Ordinances did not provide any general zoning use classification under which land may be used as a mobile home park as a matter of right, but rather, specifically included such use within their special use classification. Therefore, the underlying 1-1 zoning classification was immaterial to the determination of whether or not a mobile home park may be permitted on the plaintiffs’ property. This determination rests on the validity of and the compliance with the seven conditions set forth in section 15 of the special use ordinance. The plaintiffs challenged the right of the defendant to include the first condition — a finding of a “public necessity” — in the zoning ordinance and conceded that such condition had not been met. Since we have found that such a prerequisite is proper and permissible, the plaintiffs’ concession that they have not complied with this condition is fatal to their attempt to use their land for a trailer park.

Under point III of their petition for rehearing, the plaintiffs have completely misstated the court’s opinion in these words:

“This opinion marks a milestone in zoning litigation. For the first time in any reported case in Illinois a court is holding that ‘public necessity’ and ‘public necessity’ alone is a pre-condition for a private property owner to enjoy the use of his property.’’

Even a cursory reading of the opinion will clearly disclose the error of the plaintiffs’ statement. We noted in our opinion that section 15 established a number of standards or conditions for those uses, which, because of their unique character, cannot be classified as within any general use district without considering, in each case, the impact on neighboring land, and that public necessity for the particular use at the requested location is only one of these standards or conditions. We also specifically observed that this is not the traditional type of zoning case, but rather, one dealing with a special use; that in the traditional zoning case, no one factor is determinative and the normal tests for resolving the validity of the zoning classification would govern (see: La Salle Nat. Bank of Chicago v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65 (1957); Sinclair Pipe Line v. Richton Park, 19 Ill2d 370, 376-380 incl., 167 NE2d 406 (1960)); and that public need in such case is, at best, but one of the factors to be considered.

For the foregoing reasons, we adhere to the opinion as originally adopted and the petition for rehearing is denied.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    Rockford Memorial Hospital Association, a Corporation, Plaintiff-Appellant, v. Max Wells and Oregon Township, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 67-81.
    Second District.
    November 29, 1967.

      Pedderson, Menzimer, Conde and Stoner, and Harold Stern, of Rockford, for appellant.
    John L. Moore, of Oregon, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This action was originally filed by Rockford Memorial Hospital Association on November 22, 1965, against Max Wells and Oregon Township. Count I of the complaint was against Max Wells, who is now deceased, and does not concern us in this appeal. Count II was against Oregon Township to recover for hospital services allegedly rendered Wells from January 21, 1963, when he was admitted as a patient, to his discharge on February 26, 1963, less that portion of the total bill paid by private insurance. The cause was heard by the court without a jury on March 3, 1967, and was taken under advisement at the conclusion of the evidence.

On March 9, 1967, judgment was entered against the plaintiff and on April 4,1967, the court denied a post-trial motion to vacate the prior judgment and this appeal followed.

The action was brought under section 4-14 of the Public Assistance Code of 1949, as amended (Ill Rev Stats, c 23, par 414,1961) which provided, in part, as follows:

“414. #4-14. Assistance to the Medically Indigent.) When a person not otherwise eligible for or receiving general assistance under Article IV, or assistance under Articles V, V-B, VI, VII, or VILA falls sick or dies, not having sufficient money, property or other resources, including income and earnings available to him over a 12 month period, to meet the cost of necessary medical, dental, hospital, boarding or nursing care, or burial, the supervisor of general assistance in the governmental unit in which such person is at the time of his illness or death, shall give or cause to be given to him such care as may be necessary and proper, . . (Emphasis ours.)

Paragraph 414 further provides that “Eligibility for care as a medical indigent shall be determined in accordance with the rules and regulations of the Commission.”

It is agreed that Max Wells was a resident of Oregon Township at the time of his illness in January and February, 1963, and that if he were otherwise eligible for assistance under the Code, that it would be due from Oregon Township under the provisions quoted. The evidence disclosed that Wells was suffering from cancer at the time of his admission to the hospital and that he had a lung removed during this hospitalization. On February 20, 1963, a hospital administrator wrote to Mr. Clarence Anderson, the Oregon Township supervisor of public assistance, and informed him that Wells was “an emergency patient” at the hospital and that they “have only recently been able to determine that he may be medically indigent as that term is defined in the Illinois State Statutes” and that reimbursement was accordingly-expected from the township for services rendered. Anderson returned the letter with a cryptic note on the bottom that “Max Wells is not an indigent case by our standards. He has been working and has hospital insurance. Also, I was not notified until after he had left the hospital.” On February 26, Wells was discharged from the hospital and returned home.

It was also disclosed that Wells had been adjudicated a bankrupt on the basis of his voluntary petition filed March 5, 1964. The bankruptcy schedules were admitted into evidence and revealed that he had liabilities of $5,522.97 and assets worth $1,100 on the date he filed the petition. Most of the liabilities were medical and hospital bills, but the schedules did not indicate when they were incurred. The bankruptcy petition also stated that Wells was employed as a laborer at the Conover-Kable Piano Company at that time; that he had been so employed for 5 years prior; and that he had earned approximately $4,800 during each of the two years immediately preceding the filing of the petition.

Rule 38.02 of the Illinois Public Aid Commission was in effect at the time in question. That rule provided:

“When it is determined by a source of medical care or funeral director that a sick or deceased person is without sufficient income and resources to meet the cost of necessary medical care or funeral and burial, and a request is being made for Assistance to the Medically Indigent, the source of medical care or funeral director shall notify the supervisor with reasonable promptness of such request and furnish information that the person does not have sufficient resources to pay the medical and/or funeral and burial expense.
“For purpose of this rule, ‘reasonable promptness’ is to be considered notification within five working days. However, if there are extenuating circumstances in any case, the supervisor may extend the period of time for such notification . . .”

Rule 38.06 provides that the determination of medical indigency shall include a consideration of “all money, property, or other resources, including assistance from relatives, income and earnings available to the applicant over a 12 month period” beginning one month prior to the month of application.

Prior to the enactment of the Public Assistance Code, the cases held that one who furnished hospitalization or medical assistance to a needy person would be required to notify the appropriate overseer of the poor “within a reasonable time” to be entitled to reimbursement for the services thus rendered. St. Anthony’s Hospital of Sisters of St. Francis, Inc. v. County of Fayette and Town of Avena, 313 Ill App 653, 40 NE2d 538 (Abst.). In the 1960 case of Rockford Memorial Hospital Ass’n v. Whaples, 25 Ill App2d 79,165 NE2d 523, decided after the Code was in effect, notice furnished by the hospital to the McHenry Township supervisor 23 days after admission of Ruth Whaples as an emergency patient was sufficient notice on the basis of the earlier rule that notice must be furnished “within a reasonable time.” Ruth Whaples, then 4 years of age, had been ill with what her mother diagnosed as “Asiatic flu.” When her condition worsened, a doctor was consulted in the afternoon of November 11, 1957, who determined that the child had pneumonia and made arrangements to have her admitted to the hospital that evening as an emergency patient. On December 4, the associate director of the hospital advised the township supervisor, by letter, that Ruth was a patient and that the parents were medically indigent. The letter requested an investigation and reimbursement to the hospital for the expenses of the hospitalization. The court concluded that the notice was sufficient under the circumstances, particularly since the supervisor did nothing to either investigate or object to the claim of medical indigency; and, that under the evidence found in the record, the parents of Ruth were medically indigent persons.

The five working-day rule was promulgated by the Commission after the Whaples decision. It is contended by the plaintiff, however, that this case should be determined by the earlier decisions and not the five-day rule since, by reason of the “extenuating circumstances,” it is an exception to that rule. However, the record does not indicate any extenuating circumstances that would remove the case from the effect of the rule. Wells was admitted to the hospital on January 21, and signed an admission application. The operation was performed several days after the admission and he was discharged in due course. We do not consider the sole fact that Wells was not a resident of metropolitan Rockford as a sufficient extenuating circumstance as urged by the hospital nor does it appear that Wells was an emergency patient at the time of his admission.

The plaintiff states that the delay in the notice could not possibly have harmed the interests of the township and that, therefore, it would be a mere legalism to deny their claim on that basis. An argument to that end seems to ignore a major reason for the rule. The purpose of the prompt notification is to afford a protection for both the township and the hospital or other source of assistance. An early determination of the question of medical indigency would permit the hospital to make a timely and realistic appraisal of its financial relationship to the patient and to act accordingly.

It also appears to us that the evidential facts in the record before us fail to establish that Wells was a “medical indigent” at the time of his hospitalization. The Whaples case is also the only reported case on that question since the enactment of the Code. In that case, the parents of Ruth Whaples were both unemployed at the time of her hospitalization. Ruth was the oldest of four children and the combined gross income of the parents during the 12-month period was $3,051. The only assets owned by the family were a small equity in a house trailer, an inoperable automobile and a $20 television set. The court concluded that they were properly categorized as “medically indigent.”

The evidence in the case before us is that Max Wells was employed and earned $4,800 a year at the time he entered the hospital on January 21, 1963. Although he was married, he did not live with or support his wife and he had no dependent children. Wells had some hospitalization insurance, but apparently few other assets. Any right of the plaintiff to recover against Oregon Township was dependent upon Wells’ indigency. The plaintiff had the burden of proof in this respect. We cannot but agree with the trial court that this evidence failed to show that Max Wells was a medical indigent as the term is contemplated by the Public Assistance Code when he entered the hospital. Wells’ bankruptcy petition filed March 5, 1964, while relevant, offers very inadequate proof as to his financial condition on January 21,1963.

In the light of our conclusion on the issues of notice and indigency, we need not consider plaintiff’s contention that the trial court improperly excluded the testimony of the credit manager of the hospital to the effect that the charges for the services rendered Wells were “usual and customary.”

It was, of course, the function of the trial court, as trier of the facts, to weigh the evidence and formulate its decision. We will not substitute our judgment for that decision where, as here, it is well supported by the record for review. Bennis v. Chicago Transit Authority, 33 Ill App2d 334, 341, 179 NE2d 421; Petition of Breger v. Seymour, 74 Ill App2d 197, 202, 219 NE2d 265.

The decision of the Circuit Court of Ogle County will be affirmed for the reasons stated.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


text:
    In the Matter of Ordinance No. 491, Standing as a Petition, Annexing Certain Territory to the City of Loves Park, Illinois. (North Park Fire Protection District, Rockford, Illinois, a Public Corporation, Objector, Appellant.)
    Gen. No. 67-86. (Abstract of Decision.)
    Second District.
    December 1, 1967.
    Reno, Zahm, Folgate and Skolrood, of Rockford, for appellant; Philip A. Nicolosi, of Rockford, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Shaw, Defendant-Appellant.
    Gen. No. 50,784.
    First District, Fourth Division.
    December 5, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged

Unlawful sale of a narcotic drug.

Defenses Raised at Trial

Denial of the conduct charged, and entrapment.

Judgment

After a jury trial, the defendant was found guilty and a life sentence was imposed. (Pursuant to section 38 of the Criminal Code (Ill Rev Stats (1965), c 38, § 22-40), the life sentence was mandatory when, at the hearing in aggravation, the court was advised of defendant’s prior conviction in the United States District Court at Chicago for the unlawful sale of narcotics.)

Points Raised on Appeal

(1) Defendant’s motion to suppress evidence was arbitrarily denied.

(2) Cross-examination of the informer was unduly restricted.

(3) The court erroneously refused an instruction on entrapment.

(4) Defendant did not receive a fair trial.

(5) Defendant was not proved guilty beyond all reasonable doubt.

Evidence

On the evening of July 18,1964, defendant was arrested without a warrant at his home in Chicago and charged with the unlawful sale of narcotics. At the time of arrest some money was seized from defendant’s person, the house was searched, and a quantity of heroin was seized from the inside coat pocket of defendant’s suit hanging in an upstairs bedroom closet. The seized items were admitted into evidence at the trial.

Prior to trial defendant moved to suppress the evidence thus seized, which motion, after hearing, was denied. At the hearing defendant, his sister with whom he resided, and his cousin testified in support of the motion. The sister testified that on July 18, 1964, between 6:00 p. m. and 7:00 p. m., a girl whom she identified as Veronica Dettmer was at her home for about five minutes, during which time she spoke to defendant and defendant gave her a radio. Defendant testified that the radio had been security for a loan to Dettmer. Defendant and his sister both testified to brutality, threats, racial discrimination, and the use of profanity by the police. However, their testimony as to the actual instances was internally inconsistent and inconsistent with each other’s testimony. The cousin testified that when she arrived at the sister’s home, the police had left, the house was in turmoil, and defendant’s sister was quite upset. In response, the State called but one witness, Police Officer Nadile.

Nadile testified that on the evening of July 18th, 1964, he received a phone call from one Veronica Dettmer, who told him she could make a controlled purchase of narcotics from defendant at his home. Dettmer came to the police station where her outer garments and purse were searched by Police Officer Craig in the presence of Nadile. Finding neither money nor narcotics, they gave her fifty dollars, the serial numbers of which were recorded. The officers and Dettmer then proceeded to the neighborhood of defendant’s residence where a taxi was hailed. After the back seat of the cab was searched by the police, Dettmer was sent to defendant’s home in the cab, the officers following in a police car. As Dettmer entered the home, Craig moved to where he could watch, while Nadile stationed himself at the side of the building. After several minutes Craig went to Nadile, saying “she just turned them.” Approximately one minute later, Dettmer emerged from the building with a tinfoil package which she handed to Craig. Craig field tested the white powder inside the package and found it contained heroin. Dettmer said she had just purchased the package from defendant for fifty dollars. At this time the officers entered the house, arrested defendant, and seized the fifty dollars of prerecorded bills which he was holding in his hand. Subsequently, Craig, accompanied by defendant, went upstairs where he found and seized seventeen grams of heroin.

At this point the court interrupted, saying, “I think I have heard enough.” After pointing to specific conflicts in the testimony for the defense, the judge stated that he believed generally Nadile’s testimony, and denied the motion to suppress any of the seized evidence. Neither Dettmer nor Craig testified at this hearing.

At the trial Craig testified that he had seen the transfer through defendant’s living room window; that a third man was present at the scene, an addict who was brought along to mislead defendant into believing that he, and not Dettmer, had informed; and that this man had not gone upstairs. Nadile also testified at the trial to the same effect as his testimony at the preliminary. Nadile and Craig were in substantial agreement.

Dettmer testified that she had purchased the narcotics; that she had known defendant; that she previously had regularly purchased narcotics from him; that she was employed as a cocktail waitress, and that she had been addicted to narcotics for seven years.

Defendant testified that the third man who came in with the police had gone upstairs and, he believed, put the narcotics in his suit; that he (defendant) had refused to sell Dettmer narcotics on that evening; that he had known Dettmer, and that she had been at his home earlier that evening to pick up her radio which he had held as security for a loan.

At the close of evidence, defendant tendered an entrapment instruction which the court refused. Thereafter, in his written motion for a new trial, defendant assigned as errors, among others, the denial of this tendered instruction, the refusal to allow Dettmer to state her address on cross-examination, and the denial of defendant’s pretrial motion to suppress. The motion for new trial made no claim of prejudice arising from comment on the large quantity of heroin which was seized. The motion was denied.

Opinion

(1) Defendant contends that the trial court’s denial of his motion to suppress was arbitrary. However, before

ruling, the court heard testimony that one officer had seen the transaction; that Dettmer had completed the sale; and that the package Dettmer brought out of the house was tested and found to contain heroin.

Do these facts furnish an adequate basis for a reasonable belief that an offense had been committed? If so, this constitutes statutory grounds for arrest by a peace officer. Ill Rev Stats (1965), c 38, § 107-2 (c). Considered in the light of People v. Boozer, 12 Ill2d 184, 188,145 NE2d 619, the foundation is more than adequate. The Boozer case also involved a controlled sale of narcotics. Upon leaving the house after making the purchase, the purchaser nodded his head as a prearranged signal to the hidden policemen. The court considered this sufficient, and found that the officers had reasonable grounds to believe that the offense had been committed by the defendant. The instant case is even stronger, since one of the officers actually saw the purchase and made a narcotics field test prior to defendant’s arrest.

There is no question that, incident to a lawful arrest, a search of the person arrested and the area under his immediate control is reasonable. United States v. Rabinowitz, 339 US 56. In People v. Braden, 34 Ill2d 516, 519, 216 NE2d 808, the court considered the scope of the area which might properly be searched, incident to a lawful arrest. The defendant there was arrested at his apartment for the unlawful sale of narcotics. Other rooms, closets, and a refrigerator in the hall outside of the apartment were searched. The search was found to have been reasonable, since the area under defendant’s immediate control includes “the premises in which the person has been arrested.” In the case before us, the search of a single living unit, upstairs and down, seems to be no more extensive. This search is distinguishable from that in Agnello v. United States, 269 US 20, which involved a house several blocks from the site of the arrest, and the searches in People v. Watkins, 19 Ill2d 11, 166 NE2d 433, and People v. Reed, 37 Ill2d 91, 227 NE2d 69, which involved arrests for traffic offenses.

Defendant contends that it was reversible error for the court not to have required Dettmer to testify at the hearing on his motion to suppress, and refers to the case of Roviaro v. United States, 353 US 53, 62. The Roviaro court described the problem as “one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Here, neither interest is involved, for the State called Dettmer at the trial, defendant knew Dettmer prior to his arrest, and her name was disclosed to him by the State.

In People v. Wolfe, 73 Ill App2d 274, 280, 219 NE2d 634, the court stated: “We are compelled to hold that an informer who participates in a crime, as is the situation in the case at bar, must be disclosed at a pretrial hearing on a motion to suppress, if other evidence does not establish probable cause and failure to allow such a disclosure is error.” Contrapositively, however, such error does not exist where, as here, defendant knew the informer’s identity and probable cause was established independently. Further, the informer’s reliability need not be demonstrated if the informer’s information is independently verified by the arresting officers. People v. McFadden, 32 Ill2d 101, 203 NE2d 888; People v. McClellan, 34 Ill2d 572, 574, 218 NE2d 97.

Defendant also contends that the court ruled prematurely on his motion. Since the court specifically found that the facts were generally as Officer Nadile described them, and these facts were sufficient to establish that the arrest was lawful and the search and seizure reasonable, the decision of the judge was proper. Defendant failed to meet his burden of persuasion on the motion. Ill Rev Stats (1965), c 38, § 114-12(b).

(2) Defendant contends that he was denied a fair trial because the court would not allow him to elicit the address of Dettmer’s residence or place of employment. However, this contention is not supported by the authorities upon which he relies.

Eoviaro v. United States, supra, is clearly distinguishable, for the informer was never identified or called to testify. Still, the court points out that “no fixed rule is justifiable. . . .” People v. Wolfe, supra, deals only with disclosure of the identity of the informer for preparation of the defense.

Defendant contends that People v. Smith, 69 Ill App2d 83, 216 NE2d 520, and Alford v. United States, 282 US 687, hold that an informer’s address is a legitimate inquiry during cross-examination. However, in neither case are the facts similar nor does the reasoning require such an absolute rule.

The Smith case involved the prescribing of narcotics by a chiropodist where good faith was an essential element of the state’s case. The informer, an admitted narcotics addict with two prior convictions, supplied testimony necessary to the conviction. She testified under an assumed name. Her address was, therefore, the only method by which the defense could probe her interest, motivation and complete environment. She was a stranger to defendant.

The Alford court did find that the witness’ address was a proper subject on cross-examination. However, it states at 694, “the extent of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. Storm v. United States, 94 US 76, 85; Rea v. Missouri, 17 Wall 532, 542-543; Blitz v. United States, 153 US 308, 312.” The court reasoned that under the circumstances of that case the address was an essential step in identifying the witness with his environment. (Page 693.) In Alford, the testimony of the informer, who was then in federal prison, was the only evidence of a conversation with defendant. It was therefore the right of defendant to show the possible effect of fear or favor growing out of the detention of the witness. In the case on appeal, no such bias could have been shown. Defendant, by virtue of his acquaintance with Dettmer, easily could have identified her with her environment. Further, she testified sufficiently to her environmental background to have served any legitimate purpose of the defense. Only her address was withheld to protect her from a possible reprisal.

When we bear in mind that the United States Supreme Court later recognized that no fixed rule exists on such matters (Roviaro v. United States, supra), we cannot say that the trial court abused its discretion, especially since all of Dettmer’s testimony was corroborated by other witnesses.

(3) Defendant contends that a tendered instruction on the subject of entrapment should have been submitted to the jury. We make no decision as to whether or not there was any evidence of entrapment in this case because, in view of defendant’s denial of the acts constituting the offense charged, the defense of entrapment was incompatible and therefore not available to him. People v. Realmo, 28 Ill2d 510, 512, 192 NE2d 918; People v. Washington, 81 Ill App2d 162, 173, 225 NE2d 673; People v. Anthony, 28 Ill2d 65, 190 NE2d 837; People v. Calcaterra, 33 Ill2d 541, 546, 213 NE2d 270.

(4) Defendant contends that he did not receive a fair trial for a number of reasons which the State argues should be beyond the notice of this court because they were not presented in the trial court and were therefore waived. In People v. Fleming, 54 Ill App2d 457, 460-461, 203 NE2d 716, we considered this point and said:

After a jury trial, all non jurisdictional allegations of error which are not properly objected to during the trial or not asserted in the written motion for a new trial are deemed to have been waived and need not be considered by the reviewing court. People v. Greer, 30 Ill2d 415, 197 NE2d 22 (1964); People v. Gratton, 28 Ill2d 450, 454, 192 NE2d 903. There are exceptions to the general rule, but they lie within the discretion of the reviewing court and are not mandatory. As the Code of Criminal Procedure provides, “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” [Emphasis supplied.] Ill Rev Stat, 1963, c 38, § 121-9(a).

The points urged by defendant are that he was denied his constitutional right to a fair trial because the State failed to submit as a witness the third man, who was present at the arrest; and that the heroin found at defendant’s residence, being evidence of another crime, was erroneously admitted. However, at no time during the trial or in the written post-trial motion was either of these points adequately raised.

Error in the State’s failure to call a witness was similarly urged on appeal from a narcotics conviction in People v. Bridges, 67 Ill App2d 236, 214 NE2d 539. There, defendant contended that he was denied a fair trial because a girl friend of the arresting officer was not called to testify concerning defendant’s denial of certain statements allegedly made by him to the officer at the time of the arrest. The girl was the only independent witness who might have corroborated the defendant’s testimony. The defendant failed to raise this objection in his written post-trial motion. In affirming, the court found that the alleged error was not a plain error affecting substantial rights. We make the same ruling here and note, furthermore, Officer Craig’s testimony that the third man did not go upstairs where the heroin was discovered.

Defendant next points out that the seventeen grams of heroin seized constituted evidence of another offense, the illegal possession of narcotics, and contends that the trial court, by allowing comment thereon, committed reversible error. In People v. Baxter, 74 Ill App2d 437, 221 NE2d 16, we alluded to the general rule that the admission of evidence concerning a different substantive offense is sufficiently prejudicial to constitute reversible error. We also referred, however, to a number of well-recognized exceptions to the general exclusionary rule, which exceptions have broad application to all kinds of crimes, including narcotics. See People v. Lewerenz, 24 Ill2d 295, 298, 181 NE2d 99, where the court said:

In prosecutions for offenses involving narcotics, authorities are in accord that evidence of other offenses is inadmissible unless it comes within one of the recognized exceptions to the general rule, i. e., where it is part of the res gestae, or where it helps to disclose motive, intent, premeditation, guilty knowledge, malice or a common plan or scheme. (See 22A CJS Criminal Law, § 691 (25) and cases there cited.)

Evidence of the seventeen grams of heroin seized at defendant’s home at the time of arrest, in the instant case, was part of the res gestae, tended to prove a common scheme, indicated guilty knowledge, and refuted defendant’s testimony that he had no means of procuring narcotics for Dettmer. We therefore conclude that the comment which was permitted on this matter at the trial did not constitute a plain error or defect affecting substantial rights, and, in fact, did not constitute error.

(5) Finally, defendant contends that his guilt was not established beyond a reasonable doubt. From the references which we have made to the evidence, it appears that there was sufficient evidence which, if believed, adequately met the State’s burden in this regard. The matter of credibility of the witnesses was, of course, for the jury and the trial judge.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats (1965), ch 38, § 22-3.
      It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug except as authorized by this Act.

       Ill Rev Stats (1965), ch 38, § 7-12.
      A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.

       Ill Rev Stats (1965), eh 38, § 114-12.

       Section 121-9 (a) has been superseded and replaced by the new Supreme Court Rule 615(a) which employs the identical language. (Ill Rev Stats, c 110A, § 615(a) (1967).)


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald H. Thompson, Defendant-Appellant.
    Gen. No. M-10,830.
    Fourth District.
    December 6, 1967.

      Robert C. Walbaum, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Richard A. Hollis, First Assistant State’s Attorney, of counsel), for appellee.
   TRAPP, J.

Defendant appeals from a Magistrate’s order entered May 27, 1966, assessing a fine in the sum of $559 and costs, and from the Magistrate’s order entered August 5, 1966, denying defendant’s motion to strike the order assessing such fine.

On February 9, 1966, defendant, through his attorney, had pleaded guilty to a charge of operating a truck with an overweight axle. The statutory fine for such excess weight of 5,590 pounds was $559. On the date of the plea, the record shows the following:

“Defendant this day fined $55.90 and costs of $5.00.”

Defendant’s brief states that such fine was paid, but that fact cannot be ascertained from the record.

The record shows an order on April 28th:

“It is ordered that Bench Warrant issue,”

and an order on May 27,1966:

“Defendant is fined $559.00 and costs of $5.00, nunc pro tunc as of February 9,1966.”

The judgment entered on February 9, 1966, assessing a fine in the sum of $55.90 is void. In People ex rel. Ward v. Salter, 28 Ill2d 612, 192 NE2d 882, the supreme court held that an order of the trial court assessing a fine under the provisions of c 95½, § 229a (Ill Rev Stats 1965) in less than the statutory amount was a void order for the reason that the trial court had no exercise of discretion or judgment in fixing the fine, and that such court was without jurisdiction to fix a fine in a sum less than the statutory amount. The Supreme Court granted mandamus, directing the trial court to expunge its order assessing a fine in an amount less than the statutory amount, and directed such court to enter an order fixing the fine in an amount provided by statute.

A void judgment may be vacated at any time. People v. Weinstein, 298 Ill 264, 131 NE 631; Calbreath v. Beckwith, 260 Ill App 7; People v. Drysch, 311 Ill 342, 143 NE 100. See also 15 Illinois Law and Practice, Criminal Law, § 823, and 16 Corpus Juris, pages 1315 and 1326. A void judgment may be set aside upon a motion of a party or upon the court’s own motion.

The order of May 27, 1966, fixed a fine in an amount determined by, and required under, the statute. The descriptive phrase:

“. . . nunc pro tunc as of February 9,1966”

was not necessary to the entering or making of a valid order of fine assessed, and may, therefore, be considered as surplusage.

In this court, defendant urges that there was no notice to defendant of the order of May 27th. It is argued by the plaintiff-appellee that the defendant did, in fact, have notice that the court proposed to enter such order assessing the statutory fine. The record only shows an order for issuing a Bench Warrant a month prior to the order now appealed. It is clear, however, that the defendant did appear generally, requesting continuances, filing written motions and presenting written briefs to the magistrate at the time of argument of the issues before him. We find nothing to suggest that the defendant was prevented from presenting any and all matters relevant to the issue in the trial court, and that he does not show any prejudice upon the issue of absence of notice.

The judgment of the Magistrate’s Division is affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: CRAVEN, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold W. Fiches, Defendant-Appellant.
    Gen. No. 10,848.
    Fourth District.
    December 6, 1967.

      Robert B. Borchers, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (J. Daniel King, Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, P. J.

This appeal arises from denial of a post-trial motion after defendant’s conviction, entered upon a verdict of the jury, of the crime of deviate sexual assault. The defendant was sentenced to the penitentiary for a term of not less than eight nor more than fourteen years. The indictment charged Harold W. Fickes with deviate sexual assault upon Larry W. Lobb on May 5, 1966, at about 8 a. m., in the Macon County jail where both were inmates.

The statute defining the offense (Ill Rev Stats 1965, c 38, § 11-3 (a)) states:

“Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault.”

The defendant’s main contentions are: (a) The particular crime charged in the indictment was never shown by the evidence to have occurred, i. e., an act of deviate sexual conduct at 8 a. m., on May 5, 1966, (b) the State failed to show that any deviate sexual conduct occurred through force or the threat of force, and (c) the court allowed prejudicial evidence of other acts of the defendant and other inmates which constituted crimes similar to the offense charged, which rulings resulted in additional prejudicial error regarding argument to the jury and instructions in violation of defendant’s constitutional right to a fair trial.

The constitutional question will be discussed first, since, if there is substance to it, this court must transfer the case to the Supreme Court. The defendant’s chief constitutional claim rests upon an allegation that the introduction of evidence of offenses other than those charged in the indictment subjects the defendant to possible double jeopardy since the other offenses constituted separate acts and transactions. We are unable to agree that such a constitutional question is raised by this situation. Rather, the issue is whether such evidence was properly admitted in this case as tending to prove the offense charged. The fact that crimes might be shown by such evidence which were not the subject matter of the indictment is not of constitutional significance in the sense of double jeopardy unless and until a formal attempt is made to prove those crimes in a direct attempt to obtain a conviction for them.

We need not, in this case, speculate on some possible future proceeding. We cannot anticipate all of the problems which might arise if the State attempts subsequent prosecution upon the defendant’s conduct toward Lobb. The present issue is whether the defendant was properly convicted.

The defendant is obviously correct in stating that evidence which tends to show the commission of other crimes by the defendant is inflammatory, and the right of the State so to do is circumscribed. However, the rules and guidelines laid down by the courts for the admission of such evidence have been couched in terms of relevancy and materiality within the framework of the adjective law of evidence, not upon the substantive law of constitutional rights. See the discussion of the law in this regard in People v. Brown, 26 Ill2d 808, 186 NE2d 321, 325 (1962).

Therefore, a constitutional basis for this appeal is lacking and the appeal may be disposed of on statutory and decisional law.

Turning now to the facts. The victim of the crimes charged, Larry W. Lobb, at the time of these events, was eighteen years old. Psychiatric testimony established his intellectual status as a moron with faulty memory retention. The defendant, the victim, and the other occurrence witnesses were inmates in the north section of the Macon County jail which was made up of separate cells, a shower stall at one end of the line of cells, and a long open area or “bull pen” adjacent to the individual cell doors. On May 2, 1966, Lobb was confined to cell 3. Fickes and certain of the witnesses were already inmates of other cells in this section of the jail. Others were admitted to confinement there during the next four days. During this period of time, Lobb committed several acts of fellatio upon defendant, upon one Jim E. Myers and others. There was evidence that defendant deprived Lobb of food and made him clean cell bars and the shower area. Defendant also arranged a fight between Lobb and three other inmates, Fecht, Smith and Bender, promising that Lobb would be subjected to no more indignities if he won. Defendant also abused Lobb with words and forced him to ask a large group of prisoners, on his hands and knees, if they wanted him to orally gratify their sexual desires. There is no evidence of any particular act which occurred on the date or at the time alleged in the indictment.

There was competent evidence of many separate acts between the defendant and Lobb which constituted deviate sexual conduct. Any one of such acts could have been shown by the State in an attempt to prove the charge in the indictment of deviate sexual assault. But having proved the deviate conduct, the State was required to go further and offer evidence that the conduct occurred through force in order to make a prima facie case. One of the defenses interposed by defendant is that the State failed as a matter of law to prove the use of force or threat of force in any of these transactions. We believe these questions are intertwined and have come to the following conclusions regarding them.

First, the State’s failure to indicate which of the transactions was the transaction upon which it relied for making its prima facie case is not fatal to this conviction since each of the transactions was well within the statute of limitations. The indictment did advise the defendant of the type of conduct of which he was accused and the place and venue of the crime.

The fact that proof of the crime charged in the indictment fails to show the commission was at the exact time and exact date alleged in the indictment does not result in a failure to prove the offense. People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765 (1966); People v. Zampa, 41 Ill App2d 468, 191 NE2d 390 (1st Dist 1963).

Second, at the time the first such transaction was shown, the State had still not made a prima facie case until it had introduced evidence of force or the use of force. In view of the victim’s mentality and the reluctance of the other witnesses to testify in opposition to the defendant, it was proper to introduce evidence of a continuing course of conduct on the part of the defendant in an attempt to prove the requisite element of force. The defendant’s conduct toward Lobb tended to prove that Lobb was powerless to do other than the bidding of Fickes and was subject to punishment and further indignities if he should fail to do so. Third, the trial court was correct in holding that the many separate acts were relevant on the issue of whether Lobb’s conduct was voluntary or the product of force or threat of force. In this case, the testimony concerning the many separate acts was admissible to show that the defendant compelled the conduct of the victim. See People v. Harmon, 389 Ill 478, 59 NE2d 808 (1945); People v. Melquist, 26 Ill2d 22, 185 NE2d 825 (1962); People v. Brown, 26 Ill2d 308, 186 NE2d 321 (1962); People v. Whitham, 406 Ill 593, 94 NE2d 506 (1950).

Fourth, although the evidence was in conflict and categorically denied by the defendant, the jury, as the trier of fact, was entitled to believe or disbelieve what each particular witness said. The existence of a conflict in the evidence does not void a conviction for failure to prove the defendant’s guilt beyond a reasonable doubt. The evidence of the witnesses who testified for the State in this case was not improbable or incredible. Such evidence supports the verdict to the requisite degree.

The trial court properly ruled in allowing the State to introduce evidence of the defendant’s conduct toward Lobb during Lobb’s incarceration in the cell block in question, under the circumstances of this case. This conduct was properly passed upon by the jury in determining whether the element of force was present with respect to these acts.

For the above and foregoing reasons, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Limauge, Defendant-Appellant.
    Gen. No. 10,851.
    Fourth District.
    December 6, 1967.
    John Unger, Public Defender, of Danville, for appellant.
    John P. O’Rourke, State’s Attorney of Vermilion County, of Danville, for appellee.
   SMITH, J.

Defendant was charged with driving while license revoked, he pleaded guilty and was sentenced to and served seven days in the county jail. He thereafter attempted to avoid trial on a two-count indictment for reckless homicide and manslaughter, arguing that these offenses arose “out of the same transaction upon the same date,” as the revocation charge — or so ran the stipulation — urging the bar of § 3-4 (b) of the Criminal Code (Ill Rev Stats 1965, c 38, § 3-4 (b)). Such, for our purposes, reads:

“A prosecution is barred if the defendant was formerly prosecuted for a different offense ... if such former prosecution: (1) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for an offense . . . with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code. . . .”

Turning to §3-3, and in particular, subparagraph (b), we find that if different offenses “are based on the same act,” they must “be prosecuted in a single prosecution,” except in certain situations not present here. Defendant’s attempt was to no avail, he was tried, convicted of reckless homicide and sentenced to a term of one year. The manslaughter count was dismissed on motion of the State’s Attorney during the trial. Defendant now seeks reversal of this conviction, again, placing his reliance on the sections just quoted.

The problem of separate prosecution for interrelated offenses has always been a vexing one and these sections are the legislative answer. A close rereading of § 3-3, however, indicates a much narrower application than one might have originally supposed. For instance, it will have no application at all apropos of included offenses §3-4(b). Furthermore, as per subparagraph 3-3(a), offenses based on the “same conduct” can be serialized for trial, but if sentences are imposed, they must run together, as § 1-7 (m) prohibits consecutive sentences for offenses which “result from the same conduct,” which would mean that in these instances multiple prosecutions would be a waste of time, if measured by results — leading one to believe that this might have been a legislative lapsus memoriae. Thus, the area of probable application of § 3-3 is a very small one indeed.

Because the facts presented are not particularly precise, at least as precise as we would like them, we could easily dispose of this appeal by latching on to the stipulated phrase “same transaction,” equate such with “same conduct,” which would be eminently proper, and with an eye to § 3-3 (a) simply announce that the tandem prosecutions present here were in order. But these sections have caused no little concern, and it would seem a bit precious on our part to so finesse the real question presented. To come to grips with such and thereby provide a definitive answer, we posit it thusly: Is it ever a possibility that these two offenses could arise from a single act?

What is an “act” as used in the context of § 3-3 ? It is certainly not as inclusive as its synonym, “conduct,” for “conduct” can mean for one thing, a “series of acts,” as § 2-4 very plainly says. But, though limited in application, as we have said, this section, being remedial, should be given a liberal construction. Quite obviously, the legislative purpose was to prevent the exaggeration of criminality for a given “act,” from which separate offenses might arise, as serialized prosecutions for such offenses would have precisely that effect. This purpose would have been enhanced through the use of the word “conduct,” but it is not for us to so enhance it, by giving this very particular word a larger meaning. Apparently, the Legislature was of a mind that there might be occasions when serialized prosecutions would be called for, even though there could not be consecutive sentences, and subparagraph (c) of § 3-3, even authorizes tandem prosecutions for offenses which do arise from the “same act,” if it is in the “interest of justice.” What circumstances might occasion this happenstance, we need not expatiate on, as such, at least here, is beyond our province.

Other than telling us that an “act” includes a failure to take action (§ 2-2), the Code is silent as to meaning— as well it might be, for sometimes a point of no return is reached when attempt is made to give more explicit meaning to particular words. But we must of needs provide a working definition, and an apt a one as any is that “an act” is something done or not done by somebody who wants it that way. Juxtapose this with the definition of the offenses involved, and we begin to glimpse our answer. Succinctly put, reckless homicide is the act of recklessly driving a vehicle in a manner likely to and which does cause death (§ 9-3), while driving with license revoked is the act only of driving without a license (§ 6-303, c 95½, Ill Rev Stats 1965). Is not our answer, that two distinct “somethings” have to be done (or not done) for these two offenses to arise ? We think so, and that fact that both acts take place simultaneously is immaterial. Quite obviously, two “somethings” can occur simultaneously, and if they happen to be offenses, as here, there can be two prosecutions.

Admittedly, these offenses are cognate, neither require a specific intent, both arise from the “same conduct”— driving — both occur at the same time and place, but there the twain separate. For instance, as the Supreme Court of Minnesota has pointed out, it is possible, indeed quite probable, that a person whose driver’s license has been revoked would probably drive with considerably more caution than perhaps one would whose driver’s license was still in force. State v. Reiland, 274 Minn 121, 142 NW2d 635. We quote:

“Since it is quite possible, and perhaps very probable, for one to drive carefully despite revocation of his driver’s license, that misconduct — unlike, for example, reckless driving — need have no relationship to driving in a grossly negligent manner.”

In short, the act giving rise to each, can happen without the other, or, they can coincide, and yet both are sui generis. This could not be true with, say, voluntary manslaughter and reckless homicide — in other words, to paraphrase our initial statement of the problem, it is well within the realm of the possible that these two offenses can arise from a single “act.”

Here, clearly, as to each offense, the state of mind of the defendant is divisible, and just as clearly, it is indivisible as to the indictment charges — manslaughter and reckless homicide. To phrase it another way, two behavioral incidents are present — and it makes no difference whether both are volitional or nolitional, or one and the other. Here, the errors of judgment were volitional, yet one does not partake of the other, at least in the sense of § 3-3 (b). As was further said in the case just cited, 142 NW2d 635, 638:

“Defendant’s state of mind or error in judgment causing him to drive after revocation may be characterized as willfully defying a statute designed to punish drivers who have had their driver’s license revoked. As such, it has no relationship to the conduct of operating and controlling a motor vehicle in a grossly negligent manner, either in cause or effect.”

The magic word in the Minnesota Statute is “conduct” —“if a person’s conduct constitutes more than one offense” — a broader word, as we have seen, hence being bound by the more exclusive “act,” the case before us is a fortiori.

The remaining point urged for reversal can be disposed of quickly. The dismissal of the manslaughter charge during the trial in no way, as we have seen, militates against the trial continuing on the homicide count to a conviction. Of course, the manslaughter charge can never be resurrected, (3-4 (a) (3)) and it could not now be brought even if never begun, for this is what § 3-4 (b) is all about.

The State urges an additional point for affirmance— the homicide charge was not “known” (§ 3-3 (b)) at the time the revocation charge was brought, in the sense that the revocation offense was immediately apparent, while the aptness of the homicide charge was not — that such could not be determined until there had been further investigation. But “aptness” is not the same as “known.” This would have been true, — assuming only a single act, if death had occurred subsequent to the revocation conviction, but here the death occurred before. Thus, the several offenses were “known” to the proper prosecuting officer at the time of the commencement of the revocation prosecution.

Defendant also argues that the reckless homicide act is void for vagueness, but we do not think so. People v. Garman, 411 Ill 279, 103 NE2d 636. The judgment and conviction appealed from is affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE CRAVEN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jerome E. Tice, Defendant-Appellant.
    Gen. No. 10,858.
    Fourth District.
    December 6, 1967.

      Donald B. Mackay, Public Defender, of Bloomington, for appellant.
    Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington, for appellee.
   MR. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court.

The defendant was convicted in a jury trial for the offense of burglary. He appeals to this court from the sentence imposed of not less than ten nor more than fifteen years in the Illinois State Penitentiary. This appeal relates only to an assertion that the sentence is excessive and seeks its reduction.

Section 121-9 (b) (4) of c 38, Ill Rev Stats 1965, provides that reviewing courts may reduce the punishment imposed by the trial court. Although the appellant here refers to constitutional prohibitions against cruel and unusual punishment, the foregoing statutory grant of authority to reduce sentence is clearly the more appropriate reference.

As the Committee Comments to the Code of Criminal Procedure indicate, the grant of authority to reviewing courts is new and was designed to obviate subsequent retrials or numerous appeals of the same case. Further, the authority of reviewing courts to reduce sentences was undoubtedly made part of our Code of Criminal Procedure to serve the orderly administration of justice. As one writer has noted, the authority of reviewing courts to reduce sentences avoids not only the subterfuge but the necessity of making bad law to meet hard cases. Rubin, The Law of Criminal Correction 148 (1963).

In People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965), the Illinois Supreme Court noted that the grant of authority to reviewing courts should be applied with considerable caution and circumspection, admonishing that the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than would be the case of an appellate tribunal.

The Illinois cases that have considered the authority to reduce sentence are discussed in 55 Ill BJ 300. An examination of these cases can lead only to the conclusion that there is considerable diversity of opinion among judges of the appellate court as to the exercise of the power to reduce sentence.

The legislature has said that it is the general purpose of the criminal law to prevent arbitrary or oppressive treatment of offenders and to provide penalties which are proportionate to the offense and which permit of recognition of differences in the rehabilitation potential of individual offenders. Sentences are required to be indeterminate and in arriving at the sentence to be imposed, the trial court is to consider the evidence, if any, received at the trial and the evidence heard in aggravation or in mitigation of the offense. The specific evidence to be considered is set forth in section 1-7 (g) of the Code of Criminal Procedure and the general legislative policy declarations are found in paragraph 1-2 of that Code. See also People v. Evrard, 65 Ill App2d 118, 212 NE2d 305 (5th Dist 1965); People v. Harden, 78 Ill App2d 431, 222 NE2d 693 (4th Dist 1967); 1966 Ill L Forum, 523 et seq.

Wide latitude is now given a sentencing judge in his quest for information which might provide a basis upon which to impose sentence. People v. Spann, 20 Ill2d 338, 169 NE2d 781 (1960). That which is considered by the sentencing judge must necessarily be a part of the record when, as in this case, appellate review of sentence is sought. This court would thus have before it all matters considered by the sentencing judge except for the subjective impression of the defendant based upon his demeanor in and at such proceedings as transpired in open court.

Turning now to the specifics of this case, the trial of the case shows that the defendant entered a building of an oil company with intent to commit a theft. The offense was in the early morning hours. There is no indication of violence in connection with the offense. From the proceedings in the court at the time of the hearing in aggravation and mitigation, it was developed that the defendant was 26 years of age, with two years of high school education, married, with one child, then aged three months. The defendant had been married once previously, was divorced, with no children by his first wife, and was not then under any orders for alimony.

The defendant’s record of prior convictions to which he testified included conviction of the offense of forgery, “strong-armed robbery” and burglary. The forgery conviction resulted in a sentence of one to three years for which the defendant served the maximum time. The robbery conviction resulted in a sentence of one to four years for which he served the maximum time. His prior burglary conviction resulted in a sentence of one to three years for which he served the maximum time. All of the convictions are indicated to be from the circuit court of McLean County. It develops from the information in this record that the defendant first was incarcerated in 1957, when he was approximately sixteen years of age, and that he had, by reason of these prior sentences, served approximately seven years in the Illinois State Penitentiary, with some period, not detailed, of unsuccessful effort at release on parole.

The state’s attorney, in his recommendation to the court of a sentence, reviewed the record of criminal conduct, the instant offense, and concluded with a recommendation of not less than twenty-five nor more than fifty years in the penitentiary. Sentence ultimately imposed of not less than ten nor more than fifteen years is sought to be reduced because it is excessive.

We find no deficiencies in this record with reference to the gathering of complete information necessary for the difficult assignment of individualizing a sentence, nor do we find anything in this record that warrants this court in reducing the sentence.

First, we must be mindful of the admonition of the Supreme Court in Taylor that the authority to reduce sentences be used with caution and circumspection. Finally, full consideration of all of the information in this record indicates the sentence to be neither excessive nor without consideration of the rehabilitation prospects of the defendant.

The sentence is indeterminate, and although the spread between the minimum and the maximum may not make provision for the optimum amount of parole supervision in the event of his release on parole, it cannot be said that the sentence eliminates the possibility of release on parole supervision. This sentence may be more severe than burglary sentences generally, but equality of sentencing is not mandated by our Code of Procedure and clearly not required in the case of unequal offenses or unequal rehabilitation prospects of offenders. “Equal sentences” may well be more disparate than unequal sentences if the latter give full consideration to the offense and the personality characteristics of the offender. The judgment and sentence of the circuit court of McLean County are affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Harrison Neal, Defendant-Appellee.
    Gen. No. 10,880.
    Fourth District.
    December 6, 1967.

      Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington, for appellant.
    Donald B. Mackay, Public Defender, of Bloomington, for appellee.
   SMITH, J.

The State appealed from an order of a magistrate dismissing a complaint charging the defendant with the unlawful use of weapons. The order of dismissal and discharge of the defendant was based on the proposition that the prosecution is barred under the provisions of § 3-3 of our Criminal Code. Ill Rev Stats 1965, c 38, § 3-3.

The facts are not in dispute. The defendant was first charged with an aggravated battery. Such charge, as well as the one here appealed, arise out of identical facts occurring at the same time, at the same place and with the same people. A preliminary hearing was conducted on the charge of aggravated battery and resulted in a finding “that there is no probable cause to hold the defendant to answer the charge of aggravated battery.” The defendant was ordered released and his bond discharged. The defendant was then charged with unlawful use of weapons which the magistrate dismissed on motion of the defendant on the grounds that § 3-3 was a bar. The narrow issue thus presented on this record is whether or not a preliminary hearing is the commencement of a prosecution within the meaning of § 3-3 (b) of the Criminal Code. We think not.

Section 3-3 (b) of the Code so far as here applicable reads as follows:

“If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of the single court, they must be prosecuted in a single prosecution ... if they are based on the same act.”

The record establishes that the two offenses were known to the proper prosecuting officer at the time of the preliminary hearing, were within the jurisdiction of a single court, and arose out of the same act of the defendant. When, then, is a prosecution commenced ? Turning to our Code of Criminal Procedure, Ill Rev Stats 1965, c 38, § 100-1, et seq., we find § 111-1 stating, “When authorized by law a prosecution may be commenced by: (a) A complaint; (b) An information; (c) An indictment.” At first blush, it thus appears that our question is answered. A prosecution was commenced with the filing of the aggravated battery charge and it seems the unlawful use of weapons charge should have been prosecuted in a single prosecution and is thus now barred under the express provisions of § 3-4 (b) of the Criminal Code. This conclusion, however, never quite makes it to home plate because of other provisions of the Criminal Code.

The scope of the Code of Criminal Procedure is in § 100-2 made applicable to the procedure in all criminal proceedings “except where provision for a different procedure is specifically provided by law.” It does not define the term “prosecution.” Prosecution is defined in the Criminal Code as “all legal proceedings by which a person’s liability for an offense is determined, commencing with the return of the indictment or the issuance of the information, and including the final disposition of the case upon appeal.” Ill Rev Stats 1965, c 38, § 2-16. We particularly note that this definition does not include a “complaint.” By its express terms, a prosecution is only commenced “with the return of the indictment or the issuance of the information.” It is further restrictive in that a prosecution is specifically defined as a proceedings by which a person’s liability for an offense is determined. A preliminary hearing, therefore, based upon a “complaint” meets neither requirement.

The Code of Criminal Procedure, § 102-17, states that a “ ‘Preliminary examination’ means a hearing before a judge to determine if there is probable cause to believe that the person accused has committed an offense.” “The purpose and scope of preliminary proceedings are in general to ascertain whether a crime charged has been committed and, if so, whether there is probable cause to believe that it was committed by the accused.” ILP, Criminal Law, § 171. People v. Morris, 30 Ill2d 406, 197 NE2d 433. A discharge at a preliminary hearing has no effect upon and does not bar a subsequent indictment nor does it bind the Grand Jury. People v. Watson, 394 Ill 177, 68 NE2d 265. There is, thus, no hiatus between the Code of Criminal Procedure and the law as it existed prior to its adoption on the nature of a preliminary hearing. Rather than being the commencement of a prosecution, a preliminary hearing is more appropriately an inquiry as to whether or not a prosecution on a specific charge should be commenced. Thus, the innocence or guilt of a defendant is not determined in a preliminary hearing. The hearing is not a trial on the merits. The liability of the defendant for an offense is not determined on the merits. It is not a prosecution within the meaning of the Criminal Code.

Under the Criminal Code, a subsequent prosecution for an offense arising out of a same act is not barred unless the former prosecution of the first offense resulted in a conviction or acquittal, People v. Miller, 35 Ill2d 62, 219 NE2d 475; People v. Piatt, 35 Ill2d 72, 219 NE2d 481, or is otherwise barred under the provisions of § 3-4 of that Code. The preliminary hearing here resulted in neither a conviction nor an acquittal nor is it otherwise within the terms of § 3-4.

The defendant also urges that since the penalty for aggravated battery under our Code is sentence to the penitentiary from 1 to 10 years or in the alternative “in a penal institution other than the penitentiary not to exceed one year,” Ill Rev Stats 1965, c 38, § 12-4, the alternative punishment provided makes the crime a misdemeanor. People v. Bain, 359 Ill 455 at 470, 195 NE 42. He then argues that since the magistrate had jurisdiction of misdemeanors and this was a misdemeanor, the magistrate could have tried this case on the merits. The difficulty with this position is that the record shows that the defendant himself requested a preliminary hearing, that one was actually conducted and the case was not tried on the merits. Thus what might have been simply isn’t and there is no bar.

Section 109-1 of the Code of Criminal Procedure provides that a person arrested with or without a warrant should be taken without unnecessary delay before the nearest and most accessible judge and prescribes the course of conduct for that judge. Under section 109-1 (b) (3), the judge is required to hold a preliminary hearing only in those cases where that judge is without jurisdiction to try the offense, and it would therefore seem to follow that a preliminary hearing in all other types of offenses which he has jurisdiction to hear is permissive rather than mandatory. In People v. Miner, 85 Ill App2d 360, 229 NE2d 4, the case involved misdemeanors which the particular magistrate was authorized to hear. A preliminary hearing was requested by the defendant. The People filed written objections to a preliminary hearing and they were overruled. The People then refused to participate in the hearing. On the defendant’s motion, the court dismissed the complaint for the failure of the People to proceed with the preliminary hearing. The People appealed. The order of dismissal was reversed and the cause remanded to the trial court with directions to dispose of the case on the merits. Thus, where the magistrate has the jurisdiction to hear the case, a preliminary hearing is not required and the magistrate should proceed to hear the case with dispatch and dispose of it on the merits. The preliminary hearing in the case at bar was an act of grace on the part of the magistrate and the State’s Attorney. Being an act of grace and for the reasons herein stated, it cannot be enlarged into a judicial ablution of the defendant’s sins.

Accordingly, the judgment of the trial court in dismissing this prosecution is in error, and the cause must be and it is hereby remanded to the trial court for further proceedings consistent with the views herein expressed.

Reversed and remanded.

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