author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID McCRAY, Defendant-Appellant.
    Second District
    No. 82—78
    Opinion filed July 12, 1983.
    G. Joseph Weller and Michael F. Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Conviction was entered on defendant’s plea of guilty to a charge of burglary and he was sentenced to an extended 10-year prison term. He appeals, contending that (1) the trial court erred in finding him ineligible for treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 91½, par. 120.1 et seq.) because his two previous convictions for a “crime of violence” arose from the same incident; (2) erred in considering a hypothetical situation as an aggravating factor; and (3) erroneously sentenced him to the extended term following a guilty plea rather than a trial.

I

Section 8 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1981, ch. 9I½, par. 120.8) provides as pertinent:

“An addict charged with or convicted of a crime is eligible to elect treatment under the supervision of a licensed program designated by the Commission instead of prosecution or probation, as the case may be, unless (a) the crime is a crime of violence *** (c) the addict has a record of 2 or more convictions of a crime of violence ***.”

It is agreed that the present crime is not one of violence under section 8(a). Defendant contends, however, that section 8(c) of the Act should be interpreted to exclude, as a factor disqualifying an addict from treatment, a record of two or more convictions of a crime of violence where they arise from the same incident. We can find no such legislative intention.

Defendant argues that the legislative purpose in enacting the Dangerous Drug Abuse Act indicates a strong policy favoring the prevention of drug abuse and encouragement of the treatment and rehabilitation of drug addicts through placements alternative to the usual sentencing procedures. He argues that where more than one violent act arises from the same incident it does not show a greater proclivity towards violence than if the defendant had been convicted of only one of the two offenses.

We do not disagree with the defendant’s statement of the legislative policy. (See People v. Teschner (1980), 81 Ill. 2d 187, 192.) The legislature, however, listed “disqualifying crimes” to which the remedial alternative sentencing provisions were not intended to apply. (People v. McCoy (1976), 63 Ill. 2d 40, 43-45.) By setting forth disqualifying factors for eligibility the legislature clearly did not intend to provide treatment for all drug addicts. (People v. Perine (1980), 82 Ill. App. 3d 610, 615.) In this well-defined legislative scheme we see no validity to defendant’s argument that the disqualifying words “a record of 2 or more convictions of a crime of violence” (Ill. Rev. Stat. 1981, ch. 91½, par. 120.8(c)) should be read to mean unrelated courses of conduct from which crimes of violence arise. Specific words in a statute, not defined by the legislature, will be assumed to have their ordinary and popularly understood meaning. (People v. Fink (1982), 91 Ill. 2d 237, 240.) The word “conviction” as used throughout the Criminal Code of 1961 results from a judgment or sentence upon the finding of guilty to “an offense.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 2—5.) Even though the 1971 convictions resulted from closely related acts, each was for a separate offense based on a different physical act. In any event, we cannot restrict or enlarge the plain meaning of an unambiguous statute. (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 133.) The statute before us unambiguously means convictions without regard to whether they arise from the same conduct. The declaration of policy (Ill. Rev. Stat. 1981, ch. 91½, par. 120.2) does not indicate a contrary intent. In any event, such declaration cannot be used to create an ambiguity in the specific enactments of the statute. Brown v. Kirk (1976), 64 Ill. 2d 144, 152-53.

II

Defendant had previously been convicted of armed robbery and attempt to commit murder in 1971. In that instance defendant had fired six shots at his robbery victim after the victim found a gun and shot defendant. The court here determined that although these two convictions arose from the same incident, the plain language of the eligibility section of the Act disqualified for treatment addicts who have “a record of 2 or more convictions of a crime of violence” (Ill. Rev. Stat. 1981, ch. 91½, par. 120.8(c)) irrespective of whether they arose from the same conduct, and thus held defendant ineligible for treatment. The facts underlying the guilty plea in this case were that the police unsuccessfully chased an unidentified man on May 28, 1981, shortly after midnight, after seeing the man pull a large welder. The officer later returned to the area and saw a car with a large tool box filled with tools later identified as stolen property and traced the car’s ownership. The car owner told police that he had lent his car to defendant and another man on that day who later returned and told him that they had to leave the car and that the police had it. The police then arrested defendant, who gave a statement that he helped remove the tool box from the victim’s garage and helped place it in the car.

Defendant argues that the court’s expressed concern about what would have happened had defendant been discovered while committing the burglary, in light of the presentence report’s summary of defendant’s prior conviction for attempt to commit murder, indicates that the court considered defendant’s conduct to have threatened serious harm although no evidence supported such a conclusion. As we have previously indicated there is no dispute that the present crime was not one of violence. There was no evidence of a gun, the burglary occurred in a garage, and at night when no one would likely be in the garage. But the trial court’s comment should not be read out of context. Prior to making the comment the judge stated that the mitigation factor that defendant’s conduct neither caused nor threatened serious physical harm to another (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3.1(a)(1)) was “somewhat true,” and that defendant might not necessarily have contemplated that his conduct would cause or threaten serious physical harm. But the gist of the trial court’s comment was that he could not determine this positively since defendant had not been caught while committing the burglary, unlike the circumstances involved in the previous incident. No conclusion was expressed, and the court was merely weighing various factors in aggravation and mitigation. We cannot conclude from the entire record of the judge’s comments that the trial court relied on improper considerations or drew conclusions not supported by the record. We find no reversible error. The cases relied upon by defendant are distinguishable as affirmatively indicating that the trial court did rely on improper considerations. See, e.g., People v. Gant (1974), 18 Ill. App. 3d 61, 66-67; People v. Maldonado (1980), 80 Ill. App. 3d 1046, 1050-51.

Ill

We have previously held, contrary to defendant’s final contention, that an extended-term sentence may be imposed on a defendant who pleads guilty to the charged offense. People v. Baker (1983), 114 Ill. App. 3d 803, 810, 448 N.E.2d 631, 636.

The judgment of the circuit court of Winnebago County is therefore affirmed.

Affirmed.

VAN DEUSEN and HOPE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD COLEMAN, Defendant-Appellant.
    Third District
    No. 82—271
    Opinion filed July 8, 1983.
    Rehearing denied August 11, 1983.

      Robert Agostinelli and Stephen H. Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

A jury convicted the defendant for the murder of Ima Jean Smith. The trial court sentenced the defendant to a term of natural life imprisonment. The defendant appeals his conviction and sentence.

On July 16, 1981, at approximately 5 p.m., the defendant and Smith entered a tavern in Rock Island. They were talking normally and appeared to be on friendly terms. Before they left the bar, the defendant asked to see a telephone directory. After the defendant and Smith left the tavern, a waitress noticed that the telephone book was open to the section which listed bus lines.

At approximately 7 p.m., Smith called her mother, Marie Vaughn in Davenport, Iowa. At some point in the conversation, Smith asked Mrs. Vaughn about her brother, Jack. Smith ended the conversation after stating, “Momma, I got to go. This fool is standing here rolling his eyes at me like he is crazy.”

One or two hours later, a woman called a dispatcher for a local taxi company and requested a cab to go to 715 Fourth Avenue. That was the address of Smith’s apartment. The dispatcher received another call from a man approximately IV2 hours later. This man requested a cab to go to the same address. Sometime later, the defendant appeared at the taxi office with two pieces of luggage. The company is located next to the bus station, which was closed at the time. The defendant asked about a bus schedule and returned to Smith’s address about 45 minutes later.

Sometime between 10 and 10:30 that evening, Mrs. Vaughn received another call from daughter, requesting that she pick up Smith in Rock Island. Mrs. Vaughn and a friend left to pick up Smith. When they met Smith she was crying and apparently upset. Smith told Mrs. Vaughn that if she had not come to pick her up, she might never have seen her (Smith) alive again. Smith also said that the defendant broke two of her fingers because he thought that Smith was talking to her mother about another man. Mrs. Vaughn took Smith back to Davenport. After her fingers were taped, Smith left to spend the night with a friend.

The following morning, July 17, 1981, the defendant returned to the tavern alone. The owner inquired of Smith’s whereabouts, and the defendant explained that he and Smith broke up. He also said he was going to California. At approximately 9 or 9:30 a.m., the defendant appeared at Mrs. Vaughn’s apartment. He told Mrs. Vaughn that he came to say goodbye. Mrs. Vaughn testified that the defendant asked her not to hate him. According to Mrs. Vaughn, the defendant then turned away and whispered, “for what I’m about to do.” Mrs. Vaughn asked the defendant what he said, and the defendant replied that he was undecided about what he was going to do. The defendant also told Mrs. Vaughn that Smith broke her fingers during an argument, when he pushed her and she fell over a chair.

A few minutes later, Smith arrived at her mother’s home. She was surprised and, according to Mrs. Vaughn, upset that the defendant was there. She talked with the defendant for a few minutes, though, and left with him. Later that morning, at approximately 10:15 a.m., the defendant and Smith returned to the tavern. They left a short while later, and the defendant had his arm around Smith. At trial, Mrs. Vaughn admitted that she did not approve of the defendant as her daughter’s boyfriend. She also told the jury that her daughter dated Reginald Simon for two years prior to meeting the defendant and that Simon was the father of Smith’s daughter.

Brenda Carter, a child-welfare worker, went to Smith’s apartment at 1 p.m. on Friday. No one answered the knock on the door. Carter returned on Monday, July 20, 1981. Again, no one answered the door. Carter testified that she noticed an unpleasant odor at that time. Smith’s landlord also tried to reach her on Friday and Monday. On Tuesday, when he noticed a strong door and flies around the door to Smith’s apartment, he called the police.

The police gained entry into Smith’s apartment and discovered Smith’s body in an advanced state of decomposition. The police also found Smith’s apartment in disarray. Men’s and women’s clothing was scattered about the living room and a torn photograph of the defendant and Smith was on the stove. Both the photograph and a pile of men’s clothing in the kitchen were partially burned.

A witness testified that he saw the defendant at the Greyhound bus station in Davenport at 5 or 6 p.m. on Friday. The defendant checked into an alcoholic treatment center in Wichita, Kansas, at 6:30 p.m. on Saturday. Mrs. Vaughn testified that the defendant called her about two weeks later, and told her that he was in Chicago. When the defendant was arrested, he was in possession of three items of jewelry that belonged to Smith. The police also found a bus ticket dated July 17, 1981, in the defendant’s possession.

Due to the advanced decomposition of the body, the pathologist was unable to pinpoint an exact time of death. The pathologist estimated that the body could have been dead for as little as two days. He attributed the cause of death to suffocation by a rag lodged in the victim’s throat. The pathologist testified that several teeth were in the rag, indicating the victim had been beaten around the mouth. Several of the victim’s ribs were also broken.

The first issue is whether the State proved the defendant guilty beyond a reasonable doubt. A reviewing court may not substitute its judgment for that of the jury unless the jury’s decision is so palpably contrary to the weight of the evidence or unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827.) The fact that the State relies upon circumstantial evidence does not, alone, create a reasonable doubt as a matter of law. A conviction may rest upon circumstantial evidence and reasonable inferences therefrom. (People v. Fletcher (1978), 72 Ill. 2d 66, 377 N.E.2d 809.) Although the evidence properly admitted against the defendant was entirely circumstantial, that evidence is sufficient to sustain his conviction. This evidence is not overwhelming, but reasonable jurors could conclude the defendant committed the crime.

The second issue is whether the trial court erred when it admitted hearsay statements into evidence. At issue are three comments Smith made to her mother. We have numbered these comments for convenience:

1. “*** this fool’s standing here rolling his eyes at me like he’s crazy.”
2. Smith’s comment that if her mother had not come for her, she might never have seen her alive again.
3. Smith’s comment that the defendant broke Smith’s fingers because he thought Smith had been talking to her mother about another man.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) Hearsay evidence is generally inadmissible unless it falls within an exception to the hearsay rule. The defendant contends these statements were irrelevant and inadmissible hearsay. The State responds that these statements are admissible because they demonstrate the declarant’s state of mind or, alternatively, because they were excited utterances. The State also contends the statements were relevant because they are probative of the victim’s mental state as well as the defendant’s motive for the crime.

Extrajudicial statements that demonstrate the declarant’s state of mind are admissible as exceptions to the hearsay rule. (People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112.) For the statement to be admissible, the declarant must be unavailable and there must exist a reasonable probability that the testimony is truthful. (People v. Goodman (1979), 77 Ill. App. 3d 569, 396 N.E.2d 274.) The State argues that the first and second statements establish the decedent’s fear of imminent harm at the time she was killed.

There is no explanation, though, of the relevance of the victim’s mental state. People v. Lang (1982), 106 Ill. App. 3d 808, 436 N.E.2d 260, and People v. Adams (1981), 102 Ill. App. 3d 1129, 430 N.E.2d 267, relied upon by the State, do not assist its argument. In both of those cases, the victim’s state of mind was at issue. The defendant in Lang claimed the decedent died accidentally. In Adams, the defendant claimed he killed the victim in self-defense. By contrast, there was no question that the victim was murdered in the case at bar. (See also United States v. Brown (D.C. Cir. 1973), 490 F.2d 758 (statements of fear by victim that he would be killed by defendant not admissible unless mental state of victim at issue).) Since the victim’s mental state was not relevant, these comments should not have been admitted into evidence on this ground.

The State contends in the alternative that all three statements were admissible as excited utterances. The gravamen of the State’s argument is that all these statements were made in haste, so they are admissible to show defendant’s motive.

In order to admit hearsay under the excited utterance exception, the proponent must show an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, absence of time to fabricate the statement and a direct relation between the statement and the circumstances of the occurrence. (People v. Leonard (1980), 83 Ill. 2d 411, 415 N.E.2d 358.) The State cites no authority to support its argument, and we can find none.

There is no evidence that either the first or the second statement was the product of a startling event. A startling event is one which “*** ‘stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. ***’ ” (People v. Poland (1961), 22 Ill. 2d 175, 181, 174 N.E.2d 804, citing with approval 6 Wigmore, Evidence sec. 1747 (3d ed. 1976).) The State argues, in essence, that a hasty end to a telephone conversation or an emotionally distraught declarant is sufficient foundation to admit the hearsay as an excited utterance. There is no merit to this proposition. If this were the law, any impromptu conversation would qualify as an excited utterance.

Even assuming an argument between the defendant and Smith was a startling event, there is no evidence of the length of time between that argument and her conversation with her mother. Thus, it is impossible to determine whether there was insufficient time to reflect and fabricate. (Poland.) In addition, this statement was irrelevant to any issue: The fact that a declarant fears for his life does not prove the identity of a body found later and, as we have already noted, the victim’s mental state was never at issue.

As to the third statement, again there is no evidence of any startling event. More importantly, this comment is precisely the type of extrajudicial declaration that the hearsay rule bars from introduction into evidence. The State claims this statement merely demonstrates jealousy as a motive for the murder. This is undoubtedly true. The probative value of the comment, however, completely depends upon its truth. People v. Cherry (1980), 88 Ill. App. 3d 1048, 411 N.E.2d 61, cited by the trial court, is inapposite. In Cherry, a husband was charged with the murder of his wife. The court upheld the use of a divorce petition and its allegations to prove the husband’s motive for the homicide. The petition was not used to prove the truth of the allegations. In the instant appeal, the State utilized a statement attributing jealousy to the defendant in order to prove he was jealous. Thus, it is an out-of-court statement used to prove the truth of the matter asserted. The trial court erred when it admitted these comments into evidence.

This hearsay evidence is highly prejudicial. The remaining evidence is not overwhelming. The evidentiary errors, therefore, cannot be considered harmless beyond a reasonable doubt. In this situation, the defendant’s conviction must be reversed and the cause remanded for a new trial. People v. Fuelner (1982), 104 Ill. App. 3d 340, 432 N.E.2d 986.

The defendant also contends the trial court erred when it admitted into evidence a note the police found in his wallet at the time of his arrest. The note said, “Regonal Simmon [sic], Ima Jean Smith, Richard Coleman Smith Confidential false lover — they went through a complete change.” Since the State never proved authorship of the note, the defendant claims it was irrelevant. The defendant also argues the note is so cryptic that it is meaningless and could only lead to unfounded speculation that would be prejudicial to the defendant. We disagree. This note, however cryptic it may be, indicates the existence of a possible romantic triangle. A romantic triangle does not actually have to exist in order for it to be a motive for murder. It is sufficient to show that a defendant believed it existed. Regardless of authorship, the defendant’s possession of the note shows knowledge of a possible romantic triangle and, hence, jealousy as a possible motive for the murder. Therefore, the trial court properly admitted the note into evidence. See People v. Reed (1982), 108 Ill. App. 3d 984, 439 N.E.2d 1277 (personal address book of another individual which contained defendant’s name and phone number, held properly admitted to show defendant’s acquaintance with that individual).

Next, the defendant contends the trial court erred when it admitted into evidence an autopsy photograph. At issue is a color slide of the decedent’s decomposing, maggot-infested, partially autopsied body. The photograph depicts the upper portion of Smith’s body. Several teeth are missing, and the brain is exposed and lying next to the head. The defendant’s characterization of this color slide as “absolutely hideous” is mild. The State argues that a photograph of a murder victim is admissible, even though it is gruesome, if it is probative of any fact in issue. As a mere statement of the law, of course, this is true. People v. Jenko (1951), 410 Ill. 478, 102 N.E.2d 783.

The State claims this color slide was probative of the victim’s identity and the cause of death, but it offers no explanation as to how it is probative on these points. On the contrary, the State’s pathologist testified that the slide was of no use to him in establishing the identity of the decedent. Even absent this admission, there is extremely little probative value in a photograph of an autopsied, decomposed body to establish the identity of the decedent. Furthermore, the cause of death was not at issue. Even if it were, the rag which caused the suffocation had been already removed from the cadaver’s mouth. Finally, assuming the slide had an iota of probative value, that would not outweigh its unfair prejudice to the defendant. This slide had no purpose other than to horrify the jurors and arouse their emotions against the defendant. It had no probative value whatsoever, and it was error to admit it at trial. People v. Lefler (1967), 38 Ill. 2d 216, 230 N.E.2d 827.

The cases cited by the State, Jenko, People v. Johnson (1975), 28 Ill. App. 3d 139, 327 N.E.2d 535, and People v. Robinson (1969), 106 Ill. App. 2d 78, 246 N.E.2d 15, are inapposite. In each of these cases, the courts clearly stated that the photographs were relevant to some fact at issue. Such is not the case here. It is unnecessary to determine whether this error would, by itself, constitute grounds for reversal.

Finally, the defendant raises an issue concerning his sentence. In light of our disposition of this appeal, it is unnecessary to resolve that question.

The judgment of the circuit court of Rock Island County is reversed and the cause is remanded for a new trial.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE GREEN

text:
      In re ESTATE OF FLOYD HINTHORN, Deceased—(Laura Mae Hinthorn, Independent Adm’r of the Estate of Floyd Hinthorn, Petitioner-Appellee and Cross-Appellant, v. Virgal Hinthorn, Respondent-Appellant and Cross-Appellee).
    Fourth District
    No. 4—82—0704
    Opinion filed July 6, 1983.

      Arthur N. Laudeman, of Bach & Laudeman, Ltd., of Bloomington, for appellant.
    Ralph Turner, of Luedtke, Hartweg & Turner, of Bloomington, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Petitioner, Laura Mae Hinthorn, was appointed independent administrator (Ill. Rev. Stat. 1981, ch. 110½, par. 28—1) of the estate of Floyd Hinthorn, deceased, on March 3, 1982, by the circuit court of McLean County. On June 29, 1982, pursuant to her request, the court entered an order for issuance of a citation against respondent, Virgal Hinthorn, for recovery of (1) funds of decedent, Floyd Hinthorn, “represented by National Bank of Bloomington Investment 89 Certificate No. 1027 in the amount of $17,288,” and (2) a certain truck. (Ill. Rev. Stat. 1981, ch. 110½, par. 16—1.) On August 11, 1982, and after a hearing, the court ordered respondent to deliver to petitioner, as administrator, funds from the investment certificate in the sum of $12,288, and the truck, all within seven days.

Respondent, Virgal Hinthorn, has appealed, maintaining that all of the funds invested in the certificate had been given him by the deceased. Virgal does not dispute the estate’s entitlement to the truck. Petitioner, Laura Mae, has cross-appealed, asserting that the estate was entitled to all of the funds invested in the certificate. We have jurisdiction by virtue of Supreme Court Rule 304(b) (87 Ill. 2d R. 304(b)). We affirm.

By the terms of section 16—1(d) of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110½, par. 16—1(d)), upon issuance of a citation to recover property, the court “may determine all questions of title, claims of adverse title and the right of property” to the personalty which is the subject of the citation. Interpreting the statutory provision prior to section 16, the appellate court stated that citation proceedings brought by a personal representative are of two categories (1) to obtain discovery as to assets of the estate, and (2) to determine right and title to personal property. That court also stated that the latter determination may be made only when the court is requested to do so. (In re Estate of Weisberg (1978), 62 Ill. App. 3d 578, 585, 378 N.E.2d 1152, 1157.) Here, petitioner had previously obtained citations for discovery purposes. She then filed the instant petition which asked for return of the subject property and a judgment for any property which had been converted. Respondent was adequately apprised that a determination of right and title to the property was requested.

Commendably, the parties have stipulated to certain aspects of a series of events out of which the dispute has arisen.

Petitioner, Laura Mae Hinthorn, is the widow of the deceased and was estranged from him for the 10 to 15 years immediately prior to his death. Respondent is the brother of the decedent. In July 1981 decedent, Floyd Hinthorn, became ill and was hospitalized at the Veterans Administration Hospital in Danville. He remained there and at a similar hospital in Indianapolis until his death. Prior to August 3,

1981, Floyd was the owner of a savings account at the National Bank of Bloomington which on that date had a balance of $17,299.74. On that day Floyd and Virgal executed documents to change that account to one held by the two of them in joint tenancy with the right of survivorship. Later that same day, Floyd withdrew $10,000 from that account and placed it in a certificate of deposit issued by the above bank in the name of Virgal and Floyd as joint tenants with right of survivorship. Under both arrangements interest payments from the accounts were to be reported under Floyd’s social security number. The interest from the certificate of deposit was to be placed in the joint savings account.

On January 7, 1982, the sum of $10,400 was withdrawn from the joint tenancy savings account pursuant to a withdrawal slip executed by Mary A. Hinthorn, wife of respondent, in the name of “Virgal Hinthorn, Trustee for Floyd Hinthorn.” This money was used to purchase an investment repurchase agreement with the National Bank of Bloomington in the names of “Mary A. and Virgal Hinthorn, Trustee for Floyd Hinthorn.” The interest from this account was also to be reported under Floyd’s social security number. On January 15, 1982, respondent filed an application for an Internal Revenue Service identification number for the “Floyd Hinthorn Trust.” On January 19, 1982, the above repurchase agreement was placed in the name of “Virgal or Mary Hinthorn,” and with interest to be reported under Virgal’s social security number.

Floyd Hinthorn died at Indianapolis on January 23, 1982. Just prior thereto, on January 21, 1982, the certificate of deposit was transferred by respondent to an account in the name of “Virgal or Mary Hinthorn.” Interest was to be reported to Virgal’s identification number. Thus, on the date of Floyd Hinthorn’s death, none of the accounts or agreements were in Floyd Hinthorn’s name nor was ownership in any of them stated to be contingent upon surviving him.

On February 24, 1982, the account created on January 21, 1982, was terminated. A check for $2,747 payable to respondent was executed and the proceeds used for expenses of decedent’s burial. The balance of the money held under the agreement was used for the issuance of a similar agreement in the names of “Virgal or Mary Hinthorn.” Then, on April 27, 1982, the sums deposited under the two repurchase agreements were rendered into one such agreement standing in the names of “Mary or Virgal Hinthorn.” Its principal balance was the $17,288 investment certificate referred to in the citation.

The evidence showed that Virgal had visited the deceased regularly and would have been a logical object of Floyd’s beneficence. Virgal testified that prior to entering the hospital the deceased had told respondent he wanted to give respondent $5,000, stating that was “outright.” Respondent testified the deceased said “ ‘That’s yours’ ” and then said:

“ ‘I’m going to give you the money, and I want to fix it so you can take care of it, then, so I can have access to it, if I get out of here, but if I don’t get out of here, then it’s yours.’ ”

Based largely on this testimony, the trial court found that Floyd had intended to make an inter vivos gift of $5,000 to Virgal.

Virgal subsequently obtained the documents to set up the original joint tenancy account and took them to decedent who was then in the hospital. Both Virgal and his wife, Mary, admitted in their testimony that Floyd did not read well and indicated it was unlikely that he read the documents although he did sign them. Virgal testified that the only directions the deceased gave in setting up the accounts was that it be one upon which either could draw. Virgal also testified that decedent desired to trade in his truck and buy a new one if he survived and wanted to have the money to do it. Mary Hinthorn supported respondent’s testimony that Floyd had stated he wanted Virgal to help him manage his money and wanted Virgal to have the money if he died.

In making its decision, the trial court found: (1) A fiduciary relationship existed between Floyd and Virgal beginning in July 1981 and continued until the time of death; (2) respondent failed to establish that decedent had a donative intent as to all of the funds at issue; (3) that the conduct of Virgal and Mary with regard to all of the money in Floyd’s accounts, except for $5,000, was inconsistent with their having received a gift; (4) that even in the absence of a fiduciary relationship, the estate’s evidence overcame any presumption of donative intent on the part of Floyd “as the bulk of the funds;” and (5) that the evidence was sufficient to support a finding that Floyd intended to make a $5,000 gift to Virgal, but that the remainder of money in question was secured “by virtue of a trust reposed in [Virgal] by [Floyd] and was not a gift.”

Because the issues on the cross-appeal are simpler, we consider them first. The trial court could have believed Virgal’s testimony that Floyd told him the sum of $5,000 was his outright. The circumstances of the conversation were such that delivery of the money by Virgal on behalf of Floyd to himself could be implied. The creation, before Floyd’s death, of the investment account in such a manner as to show no interest in Floyd accomplished a delivery as to the $5,000. The portion of the judgment from which cross-appeal is taken is affirmed.

Turning to the original appeal, we note that even accepting Virgal or Mary Hinthorn’s testimony at face value, there is little indication that Floyd intended to make any inter vivos gift to Virgal beyond that of $5,000. The tenor of that evidence was that Floyd wanted the balance of the money to be available if he survived.

If Virgal (1) had not destroyed all joint tenancy accounts, and (2) had owed no fiduciary duty to Floyd, there would have been a strong presumption that Floyd had an intention to make a gift to Virgal of those accounts after his death. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470; Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850.) Any interest in the accounts held by Floyd during his lifetime would pass, by operation of law, to Virgal upon Floyd’s death. As that rule of law could not operate on property not in the required type of account, property in which Floyd retained an interest in his lifetime could pass to Virgal, in the absence of a will, only if a gift causa mortis had been made.

In order to prove a gift causa mortis the donee has the burden of proving: (1) The donor was stricken with a condition making death eminent; (2) the donor’s death must result from that condition without intervening recovery; (3) the gift must have been made to take effect only if the donor died of that disorder; and (4) there must have been delivery of the subject of the gift. (In re Estate of Vardalos (1974), 24 Ill. App. 3d 520, 320 N.E.2d 568.) Unlike the situation where a joint survivorship account has been created, there is not necessarily a presumption of donative intent upon the transferor of the property.

The question of whether Virgal had a fiduciary relationship with Floyd is of significance in several respects. An appellate court has held that when property is transferred to a fiduciary, a gift is never presumed. (In re Estate of La Rue (1964), 53 Ill. App. 2d 467, 476, 203 N.E.2d 47, 51.) Secondly, the trial court considered that Virgal’s conduct before Floyd’s death, in having the funds placed in accounts in which Floyd was not shown to have any interest, was a breach of fiduciary duty which Virgal would not likely have engaged in had Floyd really indicated an intent for Virgal to have survivorship rights as to all of the funds.

The case of In re Estate of La Rue is closely in point. There an elderly and feeble mother had set up joint tenancy with right of survivorship bank accounts with her son. She directed him to spend the money for her benefit within his discretion. He had spent some of the money for his own use and dissipated the account before her death. The appellate court affirmed a trial court order requiring the son to reimburse her estate for the money he had used for his own benefit. The appellate court held that the evidence supported a finding of the existence of a fiduciary relationship.

The fact that Floyd and Virgal were brothers was, of course, insufficient to establish a fiduciary relationship. (Clark v. Clark (1947), 398 Ill. 592, 76 N.E.2d 446; Ziarko v. Ziarko (1974), 22 Ill. App. 3d 520, 318 N.E.2d 1.) The essence of the relationship is the trust and confidence placed in the fiduciary (Clark). Floyd’s dependence upon Virgal and the trust and confidence placed in Virgal were similar to the situation regarding the mother and the son in La Rue. Floyd’s severe illness and resulting disability here were similar to that of the mother resulting from old age and weakness in that case. This case differs from In re Estate of Eiberger (1978), 60 Ill. App. 3d 790, 376 N.E.2d 793, cited by Virgal. There, no evidence was presented that the one alleged to be a fiduciary had ever transacted business for the person claimed to be influenced by the alleged fiduciary. The evidence here supported a determination that Virgal was a fiduciary of Floyd.

The finding that Virgal breached the fiduciary relationship was also supported. As we have stated, even under his theory of the evidence, Virgal was not to have full dominion over the sums in excess of $5,000 during Floyd’s life, but by the time of Floyd’s death he had placed all of those sums in accounts standing in his name and that of his wife. There was also evidence that on January 21, 1982, in converting the certificate of deposit to repurchase agreement funds, Virgal converted an instrument drawing interest at a rate of 15% to one drawing interest at a rate of 11% and incurred an early withdrawal penalty of $365 in so doing. According to Virgal’s testimony, this was in violation of a direction Floyd had given to him to obtain the highest possible interest on his money.

The La Rue court seemed to hold that if the son had breached his fiduciary duty to his mother by improper expenditure of funds in the survivorship account, he would not be excused from making restitution to the estate even if she had intended that he have the remaining funds upon her death. By that rationale, Virgal would not be entitled to keep funds that had been removed from the joint accounts with Floyd even if Floyd had intended that Virgal have the remaining funds upon Floyd’s death. See also Hazen v. Elmendorf (1962), 365 Mich. 624, 113 N.W.2d 892.

Regardless of any theory that Virgal’s breach of duty should be punished, we do not find the trial court’s determination that Floyd had no donative intent to make a gift of more than $5,000 to be contrary to the manifest weight of the evidence. Under the circumstances, there was no presumption of gift. The evidence of any such gift came largely from the self-serving testimony of the claimed donee and his wife, who would also benefit thereby. As is often the case, the estate had little opportunity to directly rebut this testimony. It was subject to strict scrutiny. (In re Estate of Skinner (1969), 111 Ill. App. 2d 267, 250 N.E.2d 295.) As the trial court pointed out, the conduct of Virgal and his wife in breaching the directions they stated Floyd gave them casts substantial suspicion on their' testimony. Although Floyd would have likely preferred his brother to have his property rather than his estranged wife, we will not overturn the decision of the trial court that heard and observed the witnesses.

We affirm as to the appeal and cross-appeal.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE KASSERMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHERRY LYNNE MITCHELL, Defendant-Appellant.
    Fifth District
    No. 82—79
    Opinion filed July 5, 1983.
    Rehearing denied August 3, 1983.

      Dennis J. Hogan, of Murphysboro, for appellant.
    John R. Clemons, State’s Attorney, of Murphysboro (Stephen E. Norris and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

The defendant, Sherry Lynne Mitchell, was convicted by a jury in the circuit court of Jackson County of two counts of attempt (murder) and two counts of aggravated battery of a child. She was sentenced to concurrent terms of 14 years on each count.

At trial, Carol Schumaker, a registered nurse at St. Joseph’s Memorial Hospital, testified that at approximately 9 a.m. on August 23, 1981, defendant came to the hospital with a baby girl. Defendant stated that she had to find the mother of the baby and left the hospital. According to Ms. Schumaker, the child was in critical condition due to respiratory distress; the child had bruises on her face, head, torso, arms, hands, legs, and feet; and the bruises were received on different occasions. Ms. Schumaker called Dr. Donald Porter who gave the child medical attention. At 11 a.m. the child was transferred to Cardinal-Glennon Hospital.

Dr. Porter testified that the child’s heart rate was 60, which indicated that the child was in distress. The child was dehydrated and comatose. Dr. Porter observed multiple areas of contusions on the child’s head, arms, legs, and abdomen as well as a human bite mark on the abdomen. Dr. Porter further observed the child’s eyes and found her pupils to be unequal and slow to react, which is indicative of intracranial type injury or brain damage.

Jerry Goforth, a Murphysboro police officer, testified that he stopped the truck which was believed to have been used to take the child to the hospital. A man was in the vehicle. Officer Goforth then went to defendant’s trailer where defendant stated that she was not Sherry Lynne Mitchell but was the babysitter. Officer Goforth radioed for a description of Ms. Mitchell; and when he confronted defendant with it, she then admitted she was Ms. Mitchell. Defendant willingly went to the police station. At the police station, the other children who were with defendant when Officer Goforth arrived were picked up by their mother.

Curt Graff, Murphysboro police officer, testified that Holbert Carrel was in the motor vehicle which was stopped by Officer Goforth. At approximately 2:30 p.m. on August 23, 1981, Officer Graff advised defendant of her Miranda rights, and she waived them. Defendant stated that she had taken her 17-month-old daughter, Shannon, to the hospital. The child was conscious and had bruises on her body. In addition to defendant and her daughter, Holbert Carrel, his ex-wife, and his two children also lived in the trailer. Defendant stated that at approximately 3 p.m. on Saturday, August 22, she hit her child with her hand, fist, and belt in order to take out her frustration after she had an argument with Mr. Carrel. The child played that afternoon. When the child went to bed at 11 p.m., defendant saw the bruises. Defendant related that on August 23, she hit the child several times with her hand and then placed the child in a high chair where the child had a seizure and passed out. Defendant placed a cool rag on the child’s head and 20 minutes later took her to the hospital. Defendant stated that she wanted to give up the child because she hated the child’s father.

Michael Dennis testified that on June 23, 1981, he sold defendant a $10,000 life insurance policy on the life of Shannon in which defendant was designated as beneficiary. Mr. Dennis was unsure whether the policy had lapsed due to a failure to pay the premiums.

Korman Smith, a supervisor for the Illinois Department of Children and Family Services, testified that Shannon remained in Cardinal-Glennon Hospital until October 7, 1981, when she was transferred to Rinkin-Jordon nursing home in Clayton, Missouri. On December 10, 1981, Mr. Smith visited Shannon and observed that she could not raise her head, feet, or legs and could not roll over. She could sit only with the aid of an orthopedically designed chair.

On appeal, defendant initially contends that she was denied her statutory right to a speedy trial. (Ill. Rev. Stat. 1981, ch. 38, par. 103—5(a).) The record, however, establishes that defendant was brought to trial within 120 days of her incarceration; therefore, no violation of the statute occurred.

Defendant next contends that an arrest warrant was never issued for her arrest as provided by section 111—2(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111—2(d)). The record discloses that defendant was in custody continuously after August 23, 1981, due to her inability to post bond. On August 24, 1981, an information was filed, and defendant made her first appearance in court. We have examined the record on appeal and find no arrest warrant, the only reference to an arrest warrant being a notation on the back of the indictment which was returned on November 16, 1981. That notation stated: “Bail set at $100,000 (Mitchell). Capias or Warrant of Arrest ordered to issue.” However, the docket sheet does not indicate that an arrest warrant was issued.

The issuance of an arrest warrant does not, of itself, formally charge a defendant with a crime. (People v. Dockery (1966), 72 Ill. App. 2d 345, 355, 219 N.E.2d 687, 692.) In the case at bar, defendant was informed of the crime with which she was charged on the next day following her statement which focused the investigation upon her. She was informed in court of the amount of bail set for the offense.

Jurisdiction of the circuit court is not conferred by the filing of an information or the return of an indictment; jurisdiction is conferred by the provisions of section 9 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 9), which provides that the circuit courts have “original jurisdiction of all justiciable matters.” The circuit courts have jurisdiction in all cases involving offenses which fall within the ambit of section 1—5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 1—5). (People v. Gilmore (1976), 63 Ill. 2d 23, 26, 344 N.E.2d 456, 458.) Since the filing of an information or the return of an indictment does not confer jurisdiction on the circuit court, it cannot be said that the absence of an arrest warrant deprives a circuit court of jurisdiction. Moreover, defendant’s contention in this regard overlooks the fact that peace officers are expressly authorized by statute to make an arrest without a warrant. Section 107—2(1)(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 107—2(1)(c)) provides that a peace officer may arrest a person without a warrant when he has reasonable grounds to believe that the person is committing or has committed an offense. It is evident in the instant case that the officers had reasonable grounds to believe that defendant had committed an offense. Since jurisdiction over criminal matters are conferred by the provisions of the Illinois Constitution and since the officers were specifically authorized to make an arrest without a warrant in the case at bar, the issuance of an arrest warrant was not necessary to confer jurisdiction upon the trial court.

Defendant’s third contention of error was that she was not proved guilty beyond a reasonable doubt. A conviction for attempted murder requires proof of a specific intent to kill or to take human life. (People v. Roberts (1979), 75 Ill. 2d 1, 8, 387 N.E.2d 331, 334; People v. Morgan (1978), 62 Ill. App. 3d 279, 283, 378 N.E.2d 1298, 1302; People v. Thorns (1978), 62 Ill. App. 3d 1028, 1030, 379 N.E.2d 641, 643.) A conviction for aggravated battery of a child, on the other hand, requires proof that the accused was a person of the age of 18 years and upwards who intentionally or knowingly, without legal justification and by any means, caused great bodily harm or permanent disability or disfigurement to a child under the age of 13 years. In a prosecution for attempt (murder), the intent to kill must be proved beyond a reasonable doubt (People v. Thorns); however, proof of a defendant’s intent to kill another can rarely be based on direct evidence. (People v. Jones (1977), 55 Ill. App. 3d 446, 451, 370 N.E.2d 1142, 1147.) The requirement of proof beyond a reasonable doubt does not preclude a conviction based solely on circumstantial evidence, and evidence of the overall circumstances surrounding the act in question will support a conviction if it gives rise to an inference of intent to kill. (People v. Thorns.) It is the function of the jury to determine the existence of the requisite intent, and that determination will not be disturbed or reversed unless it clearly appears that there exists a reasonable doubt as to defendant’s guilt. People v. Thorns; People v. Jones.

Based on the evidence adduced at trial, we conclude that defendant was not proved guilty of attempt (murder) beyond a reasonable doubt. The only evidence concerning the infliction of Shannon’s injuries was defendant’s statement that she struck the child with her hand, fist, and belt on two separate dates and the testimony of Ms. Schumaker that the bruises were not of the same age. No other evidence was presented on the extent of the bruises or the force by which they were inflicted. See People v. Morgan.

Nevertheless, we find that the evidence was sufficient to sustain the convictions for aggravated battery of a child. There is no question that the defendant inflicted severe injuries on Shannon as charged. The sole issue is the defendant’s intent at the time she inflicted those injuries. An accused’s voluntary departure from the scene of an alleged murder attempt without inflicting as much harm on the victim as he had an opportunity to do has operated as an influential factor in some courts’ decisions that death was not intended; however, it has been said in an attempt murder case that if a man resolves on a criminal enterprise and proceeds so far in it that his act amounts to an indictable attempt, it does not cease to be such even though he voluntarily abandons the evil purpose. Annot., 54 A.L.R.3d 612, 618 (1974).

People v. Thomas (1970), 127 Ill. App. 2d 444, 262 N.E.2d 495, is factually similar to the case at bar. In Thomas, defendant was charged with attempt murder, aggravated battery, and rape. The evidence indicated that Thomas forced his way into the victim’s apartment while holding a knife, told her to shut up or be killed, banged the victim’s head against a chest of drawers, and commenced hitting the victim in the head while poking at her face with the knife. Thomas then raped the victim, robbed her and fled. The Thomas court reversed the attempt murder conviction on the basis that the opportunity to commit any intended murder was so great that there was insufficient proof that Thomas intended or attempted to commit murder. Similarly, in the case at bar, defendant was at home with the defenseless child and had the perfect opportunity to rid herself of the child by killing her if that was in fact what she intended. Therefore, we conclude that the element of intent necessary to sustain a conviction for attempt murder was not proved beyond a reasonable doubt. We note that the jury may have been prejudiced by the introduction of the evidence that at one time the defendant was the beneficiary in a policy of insurance on the life of Shannon; however, no evidence was presented that that policy was in effect on the dates of the beating nor that defendant ever hinted that she would kill or injure Shannon in order to get these proceeds.

Defendant’s fourth contention of error is that the court erred in failing to instruct the jury on the offense of battery. The court denied the instruction after the State argued that the evidence showed that defendant was guilty of aggravated battery. When an offense charged in the indictment includes within it another offense of a lower degree, and the evidence is contradictory in regard to the degree of the offense actually committed, the defendant may be convicted of a lesser offense. (People v. Ardelean (1938), 368 Ill. 274, 280, 13 N.E.2d 976, 980.) However, when there is no evidence offered to justify a verdict of a lesser included offense, the trial court properly may refuse to instruct the jury on that offense. (People v. Ardelean; People v. Handley (1972), 51 Ill. 2d 229, 235, 282 N.E.2d 131, 136, cert. denied (1972), 409 U.S. 914, 34 L. Ed. 2d 175, 93 S. Ct. 247; People v. Virgil (1974), 19 Ill. App. 3d 744, 748, 312 N.E.2d 816, 819.) In the case at bar, the testimony established that great bodily harm was done to Shannon; therefore, there was no evidence to support the offense of simple battery.

Defendant further contends that certain other proposed jury instructions were improperly refused; however, these were non-IPI instructions and the law of the case was properly covered by the instructions which were given.

Defendant also contends that she was denied her right to a prompt preliminary hearing. Defendant was incarcerated on August 23, 1981, and a preliminary hearing was held on September 23, 1981, at which the court found that no probable cause was shown to hold defendant on the attempted murder charge. Probable cause was found on the aggravated battery charges. On October 14, 1981, an amended information was filed which charged one count of attempted murder and two counts of aggravated battery of a child. On November 16, 1981, the grand jury returned an indictment charging defendant with two counts of attempt (murder) and two counts of aggravated battery of a child.

An order releasing the accused from want or probable cause after a preliminary hearing does not preclude subsequent indictment or trial upon subsequent grand jury indictment. (People v. Kent (1972), 54 Ill. 2d 161, 163-64, 295 N.E.2d 710, 712.) Moreover, the return of an indictment before a preliminary hearing could be conducted did not establish a violation of defendant’s right to a prompt preliminary hearing. (People v. Hendrix (1973), 54 Ill. 2d 165, 169, 295 N.E.2d 724, 726.) We believe that the preliminary hearing afforded defendant 30 days after she was incarcerated on the first information satisfies the constitutional mandate for a prompt preliminary hearing. See People v. Latimore (1975), 33 Ill. App. 3d 812, 815, 342 N.E.2d 209, 212.

The defendant lastly contends “the court abused its discretion and erred in acquiescing in executive branch conduct determining policy totally denying the accused defendant a prompt fair counseled jury trial” and “[t]his Court, sitting not as only another Illinois venue, has a right and duty to remedy by means of forfeited bonds or securities a total denial of a constitutional right.” We have examined the entire record and find that the issues specifically made or inferred are without merit.

For the foregoing reasons, defendant’s convictions and sentences for attempt (murder) are reversed, and her convictions and sentences for aggravated battery of a child are affirmed.

Affirmed in part; reversed in part.

JONES and EARNS, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD G. OWENS, Defendant-Appellant.
    Second District
    No. 82—640
    Opinion filed July 14, 1983.

      Peter M. Donat, of Donat & Donat, of Batavia, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Frank Weiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Donald G. Owens, appeals from a judgment revoking his probation after a hearing in which the circuit court found defendant had violated its terms by committing attempted murder, aggravated battery and armed violence (Ill. Rev. Stat. 1981, ch. 38, pars. 8—4, 12—4, 33A—2). He contends: (1) the circuit court lacked jurisdiction to revoke probation based upon charges which were not filed until after his original term of probation had expired; (2) that he was denied due process by the untimely filing of supplemental petitions to revoke probation; (3) that the evidence was insufficient to establish the offenses upon which the revocation was based; and (4) that the trial court erroneously precluded defendant from testifying to his mental state at the time of the offenses.

Defendant pleaded guilty to burglary on September 28, 1979, and was sentenced to a term of 30 months’ probation. On February 25, 1982, the State’s Attorney filed a petition to revoke probation for defendant’s failure to pay the fine and court costs upon which it was conditioned. Summons was issued that day and subsequently returned unserved. On March 18 the court caused a warrant for defendant’s arrest to be issued and it was served upon him on March 29. Defendant’s original 30-month term of probation would have expired-March 28,1982.

On April 6, the State’s Attorney filed an amended petition to revoke probation which alleged that on March 18, 1982, defendant had committed the offenses of attempted murder, aggravated battery, armed violence, aggravated assault and unlawful use of weapons. A second amended petition was filed on April 21 which realleged the commission of the offenses on March 18 and, also, that defendant had failed to pay the fine and costs imposed when sentenced to probation.

Four witnesses, including defendant, testified at the revocation hearing to conflicting versions of altercations outside an Elgin tavern and at a service station on the early morning of March 18. Defendant and the two passengers in his car were involved in a series of sideswipes and collisions with a car driven by Donnie Fowler during which, defendant testified, he attempted to fire his revolver at the other car, but it misfired. The cars were driven from the area of the tavern and when defendant learned his had two flat tires he pulled into a gas station. Tyrone Hutton, a passenger in Fowler’s vehicle, did not believe defendant had a real gun and wished to confront him; he and Fowler then drove to the service station and parked near defendant’s car. Fowler testified that Hutton approached defendant who produced a gun and threatened to shoot if he came closer. When Hutton stepped towards defendant he pulled the trigger; the gun misfired and defendant pulled again and shot Hutton in the chest. Witnesses testified Hutton was not armed.

Other witnesses testified that Fowler and Hutton were accompanied by several other persons when they arrived at the gas station, some of whom attacked one of defendant’s friends and three of whom chased defendant. Defendant testified he was hit in the stomach and chest and heard a threat he would be killed. Defendant also testified Hutton approached with a tire iron saying he was going to kill defendant and it was then that he fired the gun.

In direct examination, defendant was asked these questions by his counsel:

“[Defense counsel] Q. At the time you pulled the trigger, did you intend to kill anybody?
A. No, I did not.
Q. At the time you pulled the trigger, what, if anything, were you thinking? What was going through your mind?
Q. What was —
MR. SPENCE: Objection.
THE COURT: Sustained.”

No evidence was presented at the hearing relating to the failure of defendant to pay the fine and costs. The trial court found defendant had committed attempted murder, aggravated battery and armed violence revoking his probation on those grounds. He was thereafter sentenced to a term of five years’ imprisonment for burglary.

Defendant contends first that as his original term of probation expired March 28, 1982, the circuit court lost jurisdiction to revoke probation based upon charges filed after that date.

Section 5—6—4(a)(3) of the Unified Code of Corrections provides:

“Personal service of the petition for violation of probation or the issuance of such warrant, summons or notice shall toll the period of probation, *** until the final determination of the charge, and the term of probation, *** shall not run until the hearing and disposition of the petition for violation.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(a)(3).)

Defendant agrees the issuance of the summons on February 25 or warrant on March 18 acted to toll the period of probation, but argues that the sole purpose of this provision is to permit the circuit court to retain jurisdiction over defendant for violations which have been filed, but not adjudicated, prior to the expiration of the original term of probation. As applied to this case, under defendant’s theory the issuance of the summons only gives the court jurisdiction over defendant to determine whether he wilfully failed to pay the fine and costs. Defendant suggests jurisdiction was lacking for the court to consider the charges of probation violation in the State’s amended petitions filed after March 28, 1982.

We do not agree such a restrictive scope may be placed upon section 5—6—4(a)(3). In plain language it states the issuance of a summons or warrant pursuant to a petition to vacate probation tolls the" period of probation and the term of probation shall not run until disposition of the petition for violation. The issuance of a warrant itself is sufficient to permit the circuit court to retain subject matter jurisdiction over a probationer past the date his sentence would otherwise expire. (People v. Williams (1973), 10 Ill. App. 3d 428, 430, 294 N.E.2d 61.) There is no limiting language in the statute suggesting jurisdiction will be retained only for the purpose of considering charges filed during the original term of probation. We may not create by construction an exception limiting jurisdiction which is not apparent from the plain, unambiguous language of the statute. “In the absence of any differing indication, words of a statute are to be given their plain, ordinary and common meaning.” Air do v. Village of Westchester (1981), 95 Ill. App. 3d 568, 569, 420 N.E.2d 472.

Our reading of section 5—6—4(a)(3) is also consistent with its legislative history. Prior to November 14, 1973, the former version of this section provided that the issuance of a warrant shall toll the running of the probation period until the final determination of the charge, “but shall not operate to expand the period of probation of any probationer whose probation is not revoked as a result of the hearing.” (Ill. Rev. Stat. 1971, ch. 38, par. 117—3(a).) Subsequent amendments deleted the quoted clause of that section. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005—6—4(a).) The construction urged by defendant may well be consistent with the former statute (see People v. Clark (1971), 48 Ill. 2d 554, 557-58, 272 N.E.2d 10), but not with its present form. The fact the legislature deleted that language from the statute is an indication it did so to avoid the result urged here.

The authorities relied upon by defendant are inapposite. In People v. Green (1980), 91 Ill. App. 3d 127, 414 N.E.2d 237, the additional probation violation charges were filed before expiration of the term of probation. In the present case the charges were alleged to have occurred during the original period of probation, but were not filed until after that term had expired. This court in Green rejected defendant’s argument that the issuance of a warrant also tolled his obligation to abide by the conditions of his probation. In People v. Green (1980), 91 Ill. App. 3d 127, 414 N.E .2d 237, the additional probation violation charges were filed before expiration of the term of probation. In the present case the charges were alleged to have occurred during the original period of probation, but were not filed until after that term had expired. This court in Green rejected defendant’s argument that the issuance of a warrant also tolled his obligation to abide by the conditions of his probation. In People v. Speight (1979), 72 Ill. App. 3d 203, 389 N.E .2d 1342, also relied upon by defendant, the court found that the issuance of a probation revocation warrant or summons was unnecessary to toll defendant’s probation where he was in custody, was aware of the charges, and had responded to them in court. (72 Ill. App. 3d 203, 211.) Speight did not address the issue presented here whether the issuance of a summons or warrant tolls the period of probation. In the other cases offered by defendant the additional charges were not filed until after defendant’s probation terms had fully expired. See In re Sneed (1978), 72 Ill. 2d 326, 333-34, 31 N.E.2d 272; In re Pacheco (1978), 67 Ill. App. 3d 396, 397-98, 384 N.E.2d 986.

We conclude that with the issuance of the summons resulting from the State’s first revocation petition, defendant’s term of probation was tolled and the circuit court thus had jurisdiction to revoke his probation based upon the charges made in the State’s supplemental petitions filed prior to determination of the original charge.

Defendant argues alternatively that the failure of the State to file its supplemental petitions to revoke probation before the original expiration date of the probation sentence denied him due process of law. He relies essentially upon People v. Crawford (1980), 85 Ill. App. 3d 366, 406 N.E.2d 861, where the court held that the unexcused 17-month delay by the State in seeking revocation of defendant’s probation denied due process. In the present case, however, the new offenses in issue occurred on March 18, 1982, and the State did not unreasonably delay, but filed its first supplemental petition on April 6. Defendant has not suggested how he was prejudiced by this short delay and we find he was not denied due process of the law in that regard.

Defendant next argues insufficient evidence was presented to sustain revocation of his probation.

The State need only establish a violation of the conditions of probation by a preponderance of the evidence (People v. Cooper (1977), 66 Ill. 2d 509, 514, 363 N.E.2d 817), and the determination by a trial court will be reversed only when it is contrary to its manifest weight. (People v. Crowell (1973), 53 Ill. 2d 447, 451-52, 292 N.E.2d 721.) The evidence offered by the witnesses of the events on March 18, 1982, was conflicting and the trial court necessarily assessed the relative credibility of these witnesses; it had an opportunity to observe both defendant and the other witnesses and consider their testimony. The trial judge could choose to believe from the evidence that Hutton was unarmed when he approached defendant and that defendant did commit the offenses charged against him. (See People v. Novotny (1968), 41 Ill. 2d 401, 412, 244 N.E.2d 182.) We conclude the findings of the trial court are not contrary to the manifest weight of the evidence presented to it.

We consider finally whether defendant was improperly denied an opportunity to testify as to his mental state when he shot Hutton.

Where the intention, motive or belief of an accused is material to the issue, he may testify directly to his state of mind or intent at that time. (People v. Christen (1980), 82 Ill. App. 3d 192, 194, 402 N.E.2d 373.) In this case defendant was permitted to directly testify he did not intend to kill Hutton when he fired at him. Also, the court in this bench trial was fully apprised by the testimony of defendant and other witnesses that he feared for his own safety and purported to act in self-defense. Defendant testified several persons attacked him and that Hutton was running towards him with a tire iron saying he was going to kill defendant when he shot. The rejection of evidence is not prejudicial where substantially the same evidence is admitted at another stage of the trial. (People v. Wallenberg (1962), 24 Ill. 2d 350, 352-53, 181 N.E.2d 143; People v. Limas (1977), 45 Ill. App. 3d 643, 648, 359 N.E.2d 1194.) We conclude any error in sustaining the State’s objection to the general question offered by defendant’s counsel was harmless.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

REESIHARD and UNVERZAGT, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEITH HODDENBACH, Defendant-Appellant.
    First District (3rd Division)
    No. 81—1129
    Opinion filed June 29, 1983.

      Steven Clark and Martin Carlson, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Leslie E. South, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGILLICUDDY

Following a jury trial, the defendant was convicted of voluntary manslaughter, and sentenced to a term of six years. The defendant contends on appeal that he was denied a fair trial (1) by the exclusion of the testimony of a defense witness, (2) by the admission of evidence of a stolen car and by the testimony of the arresting police officer that he had seen defendant on previous occasions, and (3) by the State’s improper rebuttal argument.

On July 11, 1980, the defendant, Keith Hoddenbach, shot and killed Orlando Roman. At trial, the defendant (nicknamed Popeye) claimed that he acted in self-defense. He testified that four to six weeks prior to the shooting, Roman beat up the defendant’s cousin at a disco. When the defendant asked Roman why he didn’t pick on somebody his own size, Roman pushed him in the face, pulled out a gun, and said, “I’ve shot other people and I won’t think twice about shooting you.”

The defendant identified a photo of Roman and three companions holding guns. He testified that Roman had delivered it to his aunt, Lucy Rosario, about a month prior to the shooting and said, “Make sure you give this to Popeye and he’ll get the message.” The defendant stated that he was “real scared” and thought that Roman or one of the others would try to kill him or a member of his family. He did not report the threat to the police because he was afraid that such action would prompt retaliation.

On July 11, 1980, the defendant went to a block party. While there, Roman punched him in the face and said that he remembered what happened at the disco. The defendant was “real scared,” but he did not do anything because “it was all over.” Later that evening, Roman and his brother approached the defendant. Roman told his brother that the defendant had called him a name, and that nobody does that and gets away with it. He asked the defendant if he had received the picture, and said, “You’re lucky there are so many people or I’d take care of you right now.” He also put his hand on his pants. The defendant thought that Roman had a gun and was referring to the photo he had sent. They were both told to leave the party. The defendant went to his girlfriend’s house and picked up his fully loaded .38 revolver. He said he intended to find Roman, talk with him, and try to resolve their differences. He carried the gun because he was afraid.

The defendant drove to 2015 North Damen Avenue in a green Chevrolet. He saw Roman on the steps with about nine people, and he called him. Roman walked to the car. They talked for about five minutes, and the defendant asked him to forget everything that had happened. He said that Roman replied loudly that he would rather kill the defendant, and “pulled up” a gun with his right hand. The defendant, who said he thought Roman intended to murder him, grabbed the gun from the car seat, shot him, and drove away.

Lucy Rosario, the defendant’s aunt, took the stand as the only other defense witness. After she stated her name and her relationship to the defendant, the assistant State’s Attorney requested a side bar. The prosecutor objected to the testimony of Rosario regarding the victim’s threatening message and the delivery of the photo to her, because evidence thereof had already been admitted, had not been attacked, and went to a collateral issue. The defense attorney argued that the evidence was probative of the defendant’s credibility and therefore should be admitted. The trial court, noting that the defendant had already described the threat and the circumstances under which he received it, ruled that since that evidence had not been attacked, Rosario could not testify to the same matter. She did not testify further.

Officer Neil Sullivan, a city of Chicago police officer, who investigated the homicide, testified that he went to Alcott School in search of the defendant and the green Chevrolet. The assistant State’s Attorney asked him whether he had ever seen the defendant there before. The trial court overruled defense counsel’s objection, and Sullivan responded, “Yes, sir.” At the conclusion of his testimony, over defense counsel’s objection, the State introduced evidence that the green Chevrolet was owned by Robin S. Coktan of 7405 North Ridge Boulevard in Chicago.

The jury returned a guilty verdict of voluntary manslaughter against the defendant. The defendant appeals.

The defendant first contends that the trial court erred in not permitting Rosario to testify as to the victim’s threat and the delivery of the photo to her because her testimony was essential to his claim of self-defense. A defendant claiming self-defense in response to homicide charges may show specific acts of violence and threats by the deceased. (People v. Adams (1962), 25 Ill. 2d 568, 185 N.E.2d 676; People v. Singleton (1976), 41 Ill. App. 3d 665, 354 N.E.2d 464.) Such evidence is admissible to show the circumstances confronting the defendant, the extent of his apparent danger, and the motive by which he was influenced. (People v. Stombaugh (1972), 52 Ill. 2d 130, 284 N.E.2d 640.) In this area of proof, the defendant should be given substantial latitude. (People v. Stombaugh.) In determining whether an accused has been prejudiced by the rejection or exclusion of evidence, so as to require a reversal of the judgment, courts of review will look to the entire record to see if the rejected evidence could have reasonably affected the verdict, and will refuse to disturb the judgment where guilt is shown beyond a reasonable doubt or where, upon the evidence, a different result could not have been reached. People v. Wolff (1960), 19 Ill. 2d 318, 167 N.E.2d 197, cert. denied (1960), 364 U.S. 874, 5 L. Ed. 2d 96, 81 S. Ct. 119; People v. Wilkes (1971), 2 Ill. App. 3d 626, 276 N.E.2d 761.

Our review of the record indicates that the defendant’s assertion of self-defense was in part based on the threatening photo and message sent to him by the victim through Rosario. When Rosario took the witness stand, the trial court permitted no testimony regarding the photo or the threat. Its decision was based on the fact that the defendant had already described the threat. However, Rosario’s account of her meeting with the victim would have corroborated the defendant’s story and given credibility to his claim of self-defense. Her description of the threat would have been relevant and material to the jury’s assessment of the defendant’s belief that the shooting was justified. (See People v. Graves (1978), 61 Ill. App. 3d 732, 378 N.E.2d 293.) The inclusion of such testimony would tend to show justification for the defendant’s act; the exclusion of such proof was prejudicial error. See People v. Singleton (1976), 41 Ill. App. 3d 665, 354 N.E.2d 464.

The State argues that Rosario’s testimony would have been merely cumulative to the defendant’s testimony. It has generally been held that the rejection of evidence is not prejudicial error where the same or substantially the same evidence as that excluded is admitted; however, this rule finds its most frequent application where the same or substantially the same evidence as that excluded is elicited from the same witness. (People v. Moretti (1955), 6 Ill. 2d 494, 129 N.E.2d 709, eert. denied (1958), 356 U.S. 947, 2 L. Ed. 2d 822, 78 S. Ct. 794; 24B C.J.S. Criminal Law sec. 1918(3) (1962).) Moreover, “*** an error in rejecting competent and material evidence is not cured, where the evidence admitted is not substantially the same, is not as broad and comprehensive in its nature, or does not have the same probative force, as the excluded evidence; ***.” (24B C.J.S. Criminal Law sec. 1918(3), at 144 (1962).) The trial court erred in presuming that .the defendant’s testimony was substantially the same as Rosario’s testimony would have been. The defendant’s account of a conversation to which he was not a party could not have been as comprehensive as, or had the same probative force as, the testimony of Rosario, who received the photo and threat while face-to-face with the victim.

Because the rejected evidence could reasonably have affected the verdict, and we cannot say that a different result could not have been reached had that evidence been admitted, we reverse the conviction, and remand the cause for a new trial.

As to the other issues raised on appeal, the defendant contends that evidence that the car he used on July 11, 1980, was owned by someone else implied that he had stolen the car, thus denying him a fair trial. Even if it is assumed that evidence that the defendant did not own the car suggested theft to the jury, where evidence is relevant and otherwise admissible, it is not to be excluded because it may also have a tendency to prejudice the accused. (People v. Horton (1966), 78 Ill. App. 2d 421, 223 N.E.2d 202 (admission of evidence that defendant drove two cars not owned by him in trial for theft of third car held proper).) Although evidence of other crimes is inadmissible if offered merely to establish a propensity to commit crimes, such evidence is admissible to show knowledge, intent, motive, design, plan, or identification. (People v. Alexander (1982), 93 Ill. 2d 73, 442 N.E.2d 887.) The State convinced the trial court that the fact that the defendant drove a car which did not belong to him was probative of his intent to prevent identification through a trace of the license plates. Since the evidence was not offered to establish a propensity to commit crimes, but to show the defendant’s state of mind, its admission was proper.

The defendant also argues that Officer Sullivan’s testimony that he had seen the defendant at Alcott School on previous occasions was prejudicial error because it implied prior criminal activity. The defendant relies upon People v. Stover (1982), 89 Ill. 2d 189, 432 N.E.2d 262, which involved the offense of resisting a peace officer. In People v. Stover, the prosecutor sought to prove the essential element of knowledge with testimony that the officer was dressed in uniform and announced his office. He went on to elicit testimony of the officer’s prior acquaintance with the defendant. On review, the admission of this latter evidence was held to be error, as “under the circumstances of this case, there is no apparent reason why the prosecutor would inquire into defendant’s previous acquaintance with [the officer] unless an implication of prior criminal activity was intended.” (89 Ill. 2d 189, 196.) Under the circumstances of the case at bar, however, Sullivan’s statement that he had previously seen the defendant at the school was incidental to his description of the search for the defendant and the car. Moreover, evidence that the arresting officer was previously acquainted with the defendant does not necessarily imply a criminal record. (People v. Rogers (1940), 375 Ill. 54, 30 N.E.2d 77.) The admission of evidence of prior acquaintance was not error.

Finally, defendant contends that he was denied a fair trial due to prosecutorial misconduct during the rebuttal argument. Improper comments do not result in the denial of a fair trial where they do not constitute a material factor in the defendant’s conviction. (People v. Miller (1981), 101 Ill. App. 3d 55, 427 N.E.2d 987.) The materiality of the improper remarks must be determined based on a review of the facts in each case. (People v. Davis (1982), 104 Ill. App. 3d 1027, 433 N.E.2d 1011.) In the instant case, the trial court sustained defense counsel’s objections to all but one of the remarks the defendant complains of on appeal, and the jury was instructed to disregard the comments. This was sufficient to cure any error and to find that the jury was not unduly influenced or misled. (See People v. Davis.) The sole comment objected to by the defendant upon which the trial court did not make a ruling was, “As a matter of fact there’s about twelve thousand people in the penitentiary today in the community who were presumed innocent ***.” We do not believe that this improper statement constituted a material factor in the conviction. Any error was harmless beyond a reasonable doubt and did not contribute to the jury’s verdict. See People v. Hopkins (1982), 107 Ill. App. 3d 422, 437 N.E.2d 722; People v. Belton (1982), 105 Ill. App. 3d 10, 433 N.E.2d 1119; People v. Ayala (1981), 96 Ill. App. 3d 880, 422 N.E.2d 127.

For the foregoing reasons the order of the circuit court of Cook County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.


author: JUSTICE O’CONNOR

text:
    CAMBRIDGE-ON-THE-LAKE HOMEOWNERS ASSOCIATION et al., Plaintiffs-Appellees and Cross-Appellants, v. THOMAS C. HYNES, Cook County Assessor, et al., Defendants-Appellants and Cross-Appellees.
    First District (3rd Division)
    No. 81—2478
    Opinion filed June 29, 1983.
    Modified on denial of rehearing August 3, 1983.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Robert S. Vihon, Assistant State’s Attorneys, of counsel), for appellants.
    Elliott D. Hartstein and Allan Goldberg, both of Chicago, for appellees.

      Richard J. Barr, Jr., for amici curiae Cunningham Courts Townhomes Homeowners Association and Bay Colony Condominium Owners Association.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This action was brought by three plaintiff homeowners associations for injunctive and other relief from assessments and real estate taxes on certain common area parcels held by the associations for their respective complexes. The taxes were separately assessed and levied on the subject parcels which were comprised of certain improvements, including private streets, paved parking areas, recreational buildings, swimming pools, tennis courts and other common facilities. Plaintiffs alleged that said assessments and taxes were unauthorized by law. The trial court entered its order on September 18, 1981, declaring the subject assessments and taxes to be unauthorized in violation of section 10 of the Condominium Property Act (Ill. Rev. Stat. 1979, ch. 30, par. 310) (the Act), which prohibits the imposition of real estate taxes on the common property of a condominium complex. The court enjoined further assessments and taxes on the subject parcels for 1979 and subsequent years. Defendants appeal. In addition, plaintiffs cross-appeal from the trial court’s finding that they failed to prove their alternate theory of double taxation. We affirm.

The parties stipulated that certain exhibits were true and correct copies of the respective condominium and homeowners declarations relating to plaintiffs. The declarations for each of the plaintiff associations provide that the individual unit owners of each respective complex have easements of enjoyment and use of the common areas which are appurtenant and running with the land. The declarations similarly state that membership of the respective plaintiff homeowners associations consists of all unit owners in the subject complex and that membership in these associations may not be separated from the ownership of the "dwelling units. All unit owners are responsible for paying their assessed proportionate share of the expenses of their respective associations, and the declarations provide that such assessments, if unpaid, shall become liens against the individual units. The definitions of “property,” “unit” and “common elements” in each of the declarations are similar or identical to those provided in the Act. Section 2(e) of the Act defines “common elements” as “all portions of the property except the units, including limited common elements unless otherwise specified.” (Ill. Rev. Stat. 1979, ch. 30, par. 302(e).) “Unit” is defined in section 2(d) as “a part of the property designed and intended for any type of independent use.” (Ill. Rev. Stat. 1979, ch. 30, par. 302(d).) “Property” is defined in section 2(c) as “all the land, property and space comprising the parcel, all improvements and structures erected, constructed or contained therein or thereon, including the building and all easements, rights and appurtenances belonging thereto, and all fixtures and equipment intended for the mutual use, benefit or enjoyment of the unit owners, submitted to the provisions of this Act.” Ill. Rev. Stat. 1979, ch. 30, par. 302(c).

Kenneth Kavel, director of appraisal of the Cook County assessor’s office, was the principal witness at trial. Kavel had responsibility for the assessment of all condominiums assessed during the 1976 quadrennial reassessment, which included Cambridge-On-The-Lake and Normandy Hill. He also testified that Park of River Oaks was assessed under his direction. Kavel testified that the value of each of the subject tax parcels and their included amenities in this case was reflected in the purchase price and fair market value of the individual units in each respective condominium complex because the value of the units includes the rights to these amenities, and that under these circumstances the assessing “procedure” requires that the value of the assessments on the common area parcels be deducted from the assessments on the units. Kavel did not know or have independent recollection as to whether such adjustment procedure was used in the actual assessment of the Cambridge or Normandy complexes, and no evidence was produced by the assessor’s office reflecting such adjustments. Some assessment worksheets were produced which appeared to show that adjustments were made in the case of River Oaks.

The trial court found that the assessment of the subject parcels violated section 10 of the Act, which provides in pertinent part:

“Real property taxes *** which are authorized by law to be assessed against and levied upon real property shall be assessed against and levied upon each unit and the owner’s corresponding percentage of ownership in the common elements as a tract, and not upon the property as a whole. ***” (Ill. Rev. Stat. 1979, ch. 30, par. 310.)

The court also found that although defendants did not prove that the adjustments required by the procedure were made, plaintiffs failed to meet the burden of proving double taxation. We agree with the court’s finding with respect to section 10 of the Act and affirm based on that issue alone.

Defendants argue that the trial court erred because the declarations of the respective homeowners associations specifically provide that the subject common area or recreational parcels are separate and distinct from the common elements. This, they contend, is evidenced by the fact that the drafters of said declarations provided separate legal descriptions and permanent tax index numbers for the subject parcels. Defendants also point to section 8 of the Act which, along with each of the subject declarations, specifically prohibits the division of the percentage of ownership in the common elements from the units. (Ill. Rev. Stat. 1979, ch. 30, par. 308.) Defendants argue that this legal distinction is further demonstrated by the fact that the owners of the subject parcels are the plaintiff-homeowner associations, which are distinct legal entities, and not the individual unit owners. We cannot escape the clear language of the Act, however, which we find to support the trial court’s decision.

Section 10 of the Act provides that each unit owner’s assessment is to include his percentage of ownership in the common elements and that the common elements are not to be separately assessed. “Common elements,” as used in the Act, therefore, must include each and every portion of the “property” subject to the declarations with the exception of the units themselves. The fact that the subject parcels may be characterized by different terminology in the subject declarations or provided separate legal descriptions and tax index numbers cannot change this determination, because the declaration of ownership cannot supersede the Act; it can only supplement the statute, including statutory definitions such as “common elements.” 400 Condominium Association v. Tully (1979), 79 Ill. App. 3d 686, 690, 398 N.E.2d 951, cert. denied (1981), 451 U.S. 907, 68 L. Ed. 2d 294, 101 S. Ct. 1973.

The trial court found the decision in the 400 Condominium Association case to be controlling in the present case. We agree. There, the assessor assessed and levied real estate taxes on each separate unit of the subject condominium complex and also issued a separate real estate tax bill for the condominium’s parking garage. The court found that the garage was a “common element” as defined by the Act and held that the separate taxation of the units and the common elements was in violation of section 10, which “mandates a legislative determination to tax the individual condominium unit rather than the entire real estate property.” 79 Ill. App. 3d 686, 689.

The court in that case also discussed the rationale for section 10 of the Act: Where a tax is imposed only on the individual unit owners, any owner’s failure to pay real estate taxes or special assessments on his unit ownership will not affect in any manner whatsoever the title to other unit ownerships in the condominium; separate taxation thereby prevents a foreclosure against any part of the property except the unit ownership of the defaulting owner and insulates the individual condominium owner from the liabilities of the other condominium owners. (79 Ill. App. 3d 686, 689; see Kane & Helms, The Illinois Condominium Property Act, 1970 U. Ill. L. F. 157, 170.) This rationale is equally applicable to the instant case. While the legal titleholders of the subject parcels may be the respective not-for-profit corporate associations, each unit owner is a member of his respective corporation and each owner’s deed transfers an interest to him in the common elements. If a separate tax assessed and levied on the subject parcels is not paid, a foreclosure action could be instituted against those parcels. Thus, the nonpayment of a unit owner’s share of taxes on the subject parcels would necessarily affect the financial independence of all other owners. Moreover, this result would occur regardless of whether title to the common parcels was directly transferred to all unit owners or, as here, indirectly transferred to separate corporations composed of all unit owners.

We also find defendants’ attempt to distinguish the 100 Condominium case on the basis of physical disparities between the subject parcels to be without merit. The only controlling factors germane to the issue of an unauthorized tax on the common elements are the statutory definitions and the language of each of the declarations. We similarly reject defendants’ argument that in the 100 Condominium case the garage was specified in the declarations as a common element and, unlike the instant case, the drafters there did not designate the subject parcel with a separate tax identification number. We do not believe that the drafters of a condominium declaration need enumerate each and every physical component of the common elements where, as here, they are implicitly included within the language of the Act and the declarations.

Based on the foregoing, we hold that the taxes assessed and levied on the subject parcels were unauthorized by law and, accordingly, plaintiffs were entitled to the equitable relief granted by the trial court. (100 Condominium Association v. Tully (1979), 79 Ill. App. 3d 686, 691; Clarendon Associates v. Korzen (1973), 56 Ill. 2d 101, 306 N.E.2d 299.) The judgment in their favor is affirmed. Because plaintiffs have thus received all the relief to which they are entitled, we find it unnecessary to consider their cross-appeal. Accordingly, we dismiss the cross-appeal.

Affirmed and cross-appeal dismissed.

RIZZI and WHITE, JJ., concur.