author: Mr. PRESIDING JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert N. Jenkins, Defendant-Appellant.
    (No. 56261;
    First District (2nd Division)
    February 20, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Stephen J. Connolly, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Albert Jenkins, was charged with one count of rape and one count of armed robbery. He was tried before a jury and was found guilty of both offenses. The trial judge sentenced him to the Illinois State Penitentiary for concurrent terms of,not less than twelve nor more than twenty years on the rape offense, and not less than ten or more than twenty years on the armed robbery offense.

Defendant has appealed his convictions and raises these issues for our review: (1) whether the trial court erred in admitting testimony of the circumstances surrounding defendant’s arrest when these circumstances revealed defendant’s commission of another unrelated crime; and (2) whether the trial court erred in admitting the testimony of the victim’s examining physician when the physician admittedly did not recall examining the victim and testified only as to the contents of his written hospital report.

The evidence in this case indicates that, on October 12, 1967 at approximately 6:00 P.M., the victim, Beverly Jones, returned home from work. Miss Jones testified that, as she entered the vestibule of her building, she stopped at her mailbox. She then unlocked the door leading to the stairway and met a man coming out of the building. They had a brief discussion concerning the tardiness of the mailman, and, as Miss Jones proceeded up the stairway to her apartment on the third floor, the same man followed her. When she reached the landing between the first and second floors, the man grabbed her, put a hand over her mouth and a gun to her head and told her to give him one dollar. Before she could comply, he told her to be quiet and to continue up the stairs. He led her through the second floor to the back staiiway, then up the back stairs to the third floor doorway. He told her to put down her packages and brought her back down to the landing between the second and third floors. The man again asked her for one dollar, and she gave it to him. He immediately asked for all her money, and she complied by giving him an additional seven dollars. He then ordered her to remove her pants, and when she did not, he slapped her, repeated his order and told her to lie on the floor. She obeyed, and the man then raped her. When Miss Jones observed a woman tenant open the second floor doorway leading to the stairs, she screamed for help. The man got up and ran down the stairs. A few days later Miss Jones identified two photographs of defendant as the man who raped and robbed her, and she subsequently made an in-court identification of defendant.

The tenant who observed the rape testified at trial that she saw defendant lying on top of the victim and ran back to her apartment to call the police. She testified that she had seen defendant in the building a few days earlier. In addition to the in-court identification of defendant by this witness, prior to trial she, too, had identified two photographs of the defendant as the man she saw.

The prosecution introduced evidence that the police arrived at the apartment and took the victim to the hospital, where she was examined. The examining physician testified that his examination revealed the presence of spermatozoa. On direct examination the prosecution attempted to refresh the doctor’s memory by showing him the hospital report he had made at the time of the examination. On cross-examination the witness admitted that he had no recollection of examining Beverly Jones and could only testify from the contents of his report. The report was not put into evidence, and a motion by defense counsel to strike the witness’s testimony was denied.

A police officer testified that he arrested defendant eighteen months after the rape and robbery in response to a radio message concerning another crime. When defendant was in custody, his fingerprints revealed that he was Albert Jenkins and that there was a warrant for his arrest for the rape and robbery of Beverly Jones. The officer testified that until that time defendant had maintained that his name was William Nesbitt.

OPINION

Defendant first contends that the admission of testimony regarding his arrest was prejudicial error. The arresting officer testified that he arrested defendant as a suspect in an unrelated crime eighteen months after the offense against Miss Jones. The officer further testified that he drew his revolver in making the arrest and that defendant was at that time using a false name. Defendant contends that, even though the unrelated crime was not specified at trial, the narration of these facts suggested to the jury that defendant had committed a serious crime. Defendant argues that tins testimony was irrelevant and highly prejudicial. The State maintains that the officer’s narrative merely set out the circumstances surrounding defendant’s arrest and was highly probative in showing flight and consciousness of guilt.

When the arresting officer commenced his testimony regarding the circumstances of defendant’s arrest, defense counsel immediately objected, and, at his request, a conference was held out of the presence of the jury. The following colloquy took place:

“Defense Counsel: I can guess, from the opening statement of the State’s Attorney, what he is going to attempt to show with this police officer.
I submit tiiat we are now talking about March of 1969, a year and a half after the occasion of the occurrence. He is going to attempt, apparently, to talk about the arrest of this defendant for another crime. It has nothing to do with this crime.
I submit that it would be completely improper, prejudicial and not competent evidence, completely irrelevant to the charge of rape on October 12, 1967.
The Court: Are you finished?
Defense Counsel: Yes.
The Court: What do you have to say?
Prosecutor: Judge, I think we are permitted to show that this man was certainly arrested on March 24, 1969, and the circumstances of that arrest, as part of our case.
Defense Council: Why? For what? This crime?
Prosecutor: That’s right, counsel.
Defense Counsel: He wasn’t arrested for this crime.
Prosecutor: That’s right.
Defense Counsel: That he is on trial for. You can’t show an arrest for another crime.
Prosecutor: What are we going to say, that he came into the police station and surrendered himself?
Defense Counsel: You don’t have to say anything.
Prosecutor: Your Honor, in addition to that, it’s probative of the issues here that when arrested the defendant gave .a false name so as to escape apprehension for this crime, which he probably knew there was a warrant outstanding for him.
Defense Counsel: Who said that he knew?
Prosecutor: Well, we can imply that he knew. Why did he give a false name. It’s for the jury.
Defense Counsel: A year and a half later?
The Court: I am just waiting for you to make your statements for the record, and I’d like to rule.
Prosecutor: The State can show the circumstances of the arrest as part of our case in chief.
Defense Counsel: An arrest for this crime, I agree with you.
Prosecutor: That’s the State’s position, Judge.
The Court: Are you finished?
Prosecutor: Yes.
Defense Counsel: Yes.
The Court: Motion denied. Proceed.”

When the commission of another offense has no connection with, or relation to, the prosecution of the crime charged, and only creates prejudice against the defendant, proof of that crime renders the trial unfair and results in a denial of due process. (People v. Butler, 133 Ill. App.2d 299, 273 N.E.2d 37.) The law distrusts the inference that, because a person has committed other crimes, he is more likely to have committed the crime for which he is on trial. The prejudicial impact at bar is even more pronounced because the jury was informed that the crime which precipitated defendant’s arrest was one of a most serious nature, because the arresting officer drew his gun to effect the arrest. It would have been sufficient for the arresting officer to have related that at a certain time, date and place he apprehended defendant who furnished false identification, and that his true identity was discovered when his fingerprints revealed that he was the person named in the outstanding warrant for the crimes at bar. Therefore the admission into evidence of testimony of the circumstances surrounding defendant’s arrest was error.

Defendant’s second contention is that the testimony of the complaining witness’s examining physician was improperly admitted into evidence. The record indicates that the physician who examined Miss Jones after the attack was called as a witness by the prosecution and initially stated that he had no recollection of examining her. He was given the hospital report which he had filled out at the time of the examination. He then stated that his recollection was refreshed, but proceeded to testify only to the facts set out in the record. The witness also spoke in terms of the general procedure in examining rape victims, and not specifically in terms of the examination of Beverly Jones. On cross-examination the witness admitted that he did not recall examining Miss Jones and could only testify after reading the hospital record. Defense counsel then moved to strike the witness’s testimony, but the motion was denied. Defendant contends that it was error to allow the witness to testify, since he did not independently recall the facts after attempting to refresh his memory. In addition, defendant argues that the hospital record was not admissible as evidence of the examination. The State maintains that the witness’s memory was, in fact, refreshed, as he stated on direct examination.

From the record it is clear that the witness did not testify from his own independent recollection, but could only testify from the facts set forth in his report. It is also clear that the hospital report written by the witness did not refresh his memory. It is an established evidentiary principle that a witness may refresh his memory by the use of any instrument, but must then testify from his own independent memory. (People v. Krauser, 315 Ill. 485, 146 N.E. 593; People v. Griswold, 405 Ill. 533, 92 N.E.2d 91.) In view of this fact and Supreme Court Rule 236 (b) , defendant concludes that the testimony of this witness should have been stricken from the record.

Both the State and defendant have ignored the equally well-established doctrine of past recollection recorded. Where a witness testifies to facts which he does not independently recall, but merely relies on a record made by him, his testimony will be admissible if a proper foundation for such testimony is laid. The witness must authenticate the writing by stating that he recorded the facts at the time of the occurrence, and that the record is truthfully and accurately a record of the facts as he observed them at the time. (Diamond Glue Co. v. Wietzychowski, 227 Ill. 338, 81 N.E. 392; Stanton v. Pennsylvania R. R. Co., 32 Ill.App.2d 406, 178 N.E.2d 121.) When such an authentication has been made, the record may be read into evidence or testified to by the witness, even though the record is a medical report. (People v. Greenspawn, 346 Ill. 484, 179 N.E. 98; Wilson v. Parker, 132 Ill.App.2d 5, 269 N.E.2d 523.) In the instant case the witness testified only that he recognized his signature on the report; therefore the proper foundation was not laid. The contents of the report were inadmissible as evidence, and the testimony of the examining physician should have been stricken. However, medical testimony is not required to corroborate a rape, (People v. Boney, 38 Ill. 2d 23, 230 N.E.2d 167) and the identifications of defendant by the victim and the eyewitness were sufficiently convincing. Therefore, admission of the medical testimony alone was not reversible error.

In view of our conclusion concerning these issues, we must decide whether these errors justify reversal and remandment for a new trial. Despite the strong evidence adduced by the prosecution, we hold that the introduction of the arrest testimony deprived defendant of a fair trial, and that the admission of the medical testimony further added to prejudice defendant. (People v. Butler, 133 Ill.App.2d 299, 273 N.E.2d 37.) The cause is reversed and remanded for a new trial.

Reversed and remanded.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1967, ch. 110A, par. 236(b) which prohibits the introduction into evidence of medical records or police accident reports.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Edward Hogan, Petitioner-Appellant.
    (No. 57065;
    First District (2nd Division)
    February 20, 1973.
    James J. Doherty, Public Defender, of Chicago, (John E. Hughes, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, William D. Wolter, and Roberta K. Cole, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE BURKE

text:
    Jerry Frym, a Minor by Marion Frym, His Father and Next Friend, Plaintiff-Appellant, v. Rovex Pharmacy, Incorporated et al., Defendants-Appellees.
    (No. 57841;
    First District (1st Division)
    February 20, 1973.

      Jack Joseph and Clarence S. Lipnick, both of Chicago, (Joseph & Friedman, and Lipnick, Barsy & Joseph, of counsel,) for appellant.
    Michael J. McCardle and David P. Schippers, both of Schippers, Betar, Lamendella & O’Brien, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

Jerry Frym, a minor, seeks to recover for injuries sustained in the course of his employment as a delivery boy for defendant. On November 30, 1966, the date of the occurrence, plaintiff, then 13 years old, in the course of making a delivery was using an allegedly defective bicycle provided by defendant.

In his complaint, plaintiff alleged that the employment was in violation of Illinois Revised Statutes, 1971, ch. 48, par. 31.1 which provides:

“No minor under sixteen years of age at any time shall be employed, permitted or suffered to work in any gainful occupation in connection with any theatre, concert hall or place of amusement, or any mercantile institution, store, office, hotel, laundry, manufacturing establishment, mill, cannery, factory or workshop, restaurant, lunch rooms, beauty parlors, barber shop, bakeries, coal, brick or lumber yard, or in any type of construction work within this state; provided, that minors between fourteen and sixteen years of age may be employed, permitted, or suffered to work outside school hours and during school vacations but not in dangerous or hazardous factory work or in any occupation otherwise prohibited by law or by order or regulation made in pursuance of law.”

The trial judge refused to direct a verdict on the issue of liability and submitted the case to the jury on the issues of liability and damages.

The jury returned a verdict finding the issue of liability in plaintiff’s favor and assessing damages against defendant in the amount of $4,500 and the court entered judgment thereon. Plaintiff appeals and seeks a new trial on the issue of damages.

Plaintiff argues that the court erred in refusing to allow the jury to be advised that loss of future earnings is a proper element of damages. An examination of the record however, contradicts plaintiff’s assertion and indicates that plaintiffs counsel during the course of the trial advised the jury to consider “loss of future earnings” as an element of damages. The record indicates three, occasions on which plaintiffs counsel, without objection, advised the jury to consider “loss of future earnings” as an element of damages. Plaintiff’s lawyer said to the jury:

“Think of what a child thirteen years old is injured, [sic] He’s nineteen years old now. He has to live fifty-one years. Can he be a doctor — sure, he can. So can I. What if he isn’t. What if he ends up a laborer. A sheet metal worker. You think he can do the job? What happens to a boy like that. Think of it. Think about about [sic] your child. What would happen to them and this is the day you have to give him what he deserves. What he should have. He can’t come back tomorrow, or the next day, and say gentlemen you didn’t give me enough money. Think about that.
# #
Now, he will not be able to do any type of work that everybody else can do. That’s what you have to remember. That’s why his capacity for earning will be reduced and that’s what he had to live with. There’s no way to get that arm any better. God knows if there were they would do it.
# # *
If I applied for a job and in the application and he has to take a physical and they examine him and see the arm the way it is I don’t think they’ll hire him. AH things can’t equal if they have a boy that has two good arms and they have him. I don’t think they’ll hire him. Would you hire him? He’d be a risk for them. Consider that. You must consider that when you compensate him. That’s important.” [sic]

Plaintiff also argues that the trial court erred in refusing to give the jury an instruction which included ‘loss of future earnings” as an element of damages. The record establishes that plaintiff did not tender to the trial judge during the jury instruction conference an instruction relating to ‘loss of future earnings.”

The Illinois Civff Practice Act, Section 67 (3) (Ill. Rev. Stat. 1971, ch. 110, sec. 67(3)), provides in relevant part:

“* * * No party may raise on appeal the failure to give an instruction unless he shall have tendered it.”

In Cobb v. Marshall Field & Co., 22 Ill.App.2d 143, 159 N.E.2d 520, this Court was concerned with a similar situation in which the plaintiff alleged that the trial judge had erred in instructing the jury. The Court, in response to plaintiff’s argument stated:

“If correct instructions were tendered and refused there would be merit to the plaintiffs’ contention that the court erred in instructing the jury, but a party cannot raise on appeal the failure to give instructions if he does not offer them. Chapter 110, §67(3), Ill. Rev. Stat. 1957; Beckstrom v. Montgomery Ward & Co., Inc., 20 Ill.App.2d 353, 156 N.E.2d 230.” Cobb v. Marshall Field & Company, 22 Ill.App.2d 143, 157, 159 N.E.2d 520, 526.

See also Sesterhenn v. Saxe, 88 Ill.App.2d 2, 232 N.E.2d 277; Rennie v. Jacoel, 70 Ill.App.2d 201, 217 N.E.2d 105.

We are of the opinion that Section 67 (3) (Ill. Rev. Stat. 1971, ch. 110, sec. 67(3)), is mandatory when it states:

“s * * No party may raise on appeal the failure to give an instruction unless he shall have tendered if.” (Emphasis supplied.)

In the instant case, plaintiff did not tender an instruction concerning ‘loss of future earnings” and therefore he cannot raise as error on appeal the court’s failure to give the instruction.

Plaintiff urges that the court erred in submitting the issue of liabüity to the jury, and that he is entitled to a new trial on the issue of damages.

This Court cannot subscribe to plaintiff’s speculative argument. There is no evidence in the record which would indicate a compromise on the issue of Hability. On the contrary, plaintiff at the trial introduced evidence of approximately $600 in medical expenses. The jury awarded plaintiff $4,500 in damages. Wé cannot say that the verdict is so inadequate as to require a new trial on the issue of damages.

Courts of review should not indulge in speculation as to the motives and intentions of the jurors. The record shows that plaintiff was not prejudiced as a result of the trial court’s refusal to direct a verdict on the issue of liability.

For these reasons the judgment is affirmed.

Judgment affirmed.

GOLDBERG and STAMOS, JJ., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    Central National Bank of Chicago, as Trustee, Plaintiff-Appellee, v. The Village of Hoffman Estates, Defendant-Appellant—(Charles Weinrich et al., Intervening-Defendants.)
    (No. 56574;
    First District (1st Division)
    January 15, 1973.

      Rehearing denied March 6, 1973.

    Hofert and Samelson, of Des Plaines, (Edward C. Hofert and J. William Braithwaite, of counsel,) for appellant.
    Haskins and Haskins, of Chicago, (Robert E. Haskins and C. W. . Eckert, of counsel,) for appellee.
    King, Robin, Gale & Pillinger, of Chicago, and Truninger and Pierce, of Palatine, both for intervening-defendants.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    Edward Gabriel et al., Plaintiffs-Appellees, v. Edward J. Suess, Defendant-Appellant.
    (No. 57303;
    First District (5th Division)
    February 9, 1973.

      Modified upon denial of rehearing March 6, 1973.

    Collins & Amos, of Chicago, for appellant.
    Silverstein & Stein, of Chicago, for appellees.
   PER CURIAM.


text:
    Illinois Conference of the United Church of Christ and John Zehr, by William Zehr, His Father and Next Friend, Plaintiffs-Appellees, v. Fidelity and Casualty Company of New York, Defendant-Appellant.
    (No. 56160;
    First District (5th Division)
    February 2, 1973.

      Rehearing denied March 7, 1973.

      Clausen, Hirsh, Miller & Gorman, of Chicago, (Patrick J. Navin and James T. Ferrini, of counsel,) for appellant.
    A. Denison Weaver, of Chicago, for appellees.
   PER CURIAM.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie B. Henne, Defendant-Appellant.
    (No. 71-394;
    Second District
    February 21, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellant.
    William B. Petty, State’s Attorney, of Mt. Carroll, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found defendant, Willie B. Henne (and co-defendants Tracy Stewart, James DePaolo and John Weisz) guilty of burglary and theft. Henne was sentenced to serve from seven to twenty-one years in the penitentiary.

The facts in this case are set forth in People v. Stewart, Gen. No. 72-16, (Ill.App.3d) (1973).

The defendant here raises three issues, two identical (including the wording of the brief) to those raised and decided in Stewart, supra. Answered fully in Stewart are defendant’s arguments that the trial court erred in denying his pretrial motion to suppress and that he was not proven guilty beyond a reasonable doubt.

Defendant’s third issue is that his sentence was excessive and grossly disparate from that imposed upon co-defendant Stewart who, ■ despite equal participation, received a one to four year sentence.

Upon sentencing Stewart, the trial judge rejected the State’s recommendation of three to five years on the basis of the minimal amount of damage caused , during the burglary and the small value of the tools stolen. • '

In sentencing Henne, the judge stated that he was not taking into consideration the additional crimes of escape and murder pending against defendant but was only considering “all previous convictions, including juvenile proceedings.”

.Reviewing the records of both Stewart and defendant,- we find the gross disparity in sentencing was not justified. Henne,.23 years old, had, while a juvenile, committed some serious offenses such as arson, car theft, hit and run property damage. and attempted escape from the Youth Authority. His last offense, however, was committed four years prior to the instant, crime; since reaching maturity, he has had no convictions. Stewart, 19 years old, had been convicted of two prior thefts, both occurring in the same year as -tire instant crime. Although the record indicates that defendant apparently escaped from the Sheriff’s custody while awaiting sentencing, Stewart, who was on bond, did not appear for his hearing on aggravation and mitigation until a bench warrant had issued for his arrest.

Due tó Henne’s more serious misconduct, both as a juvenile and while awaiting sentencing, the trial court could have properly'imposed a sentence greater than that given Stewart, but the record does not justify the extreme disparity. Fundamental fairness and respect for the law require that defendants similarly situated may not receive grossly disparate sentences. (See, People v. Haynes, 132 Ill.App.2d 130, 266 N.E.2d 172, 174 (1971).) In this interest, we reduce defendant’s sentence to a minimum of three to a maximum of nine years in the penitentiary.

Judgment affirmed as modified. -

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. PRESIDING JUSTICE GUILD

text:
      In re Petition to Annex Certain Territory to the Village of Green Oaks, Petitioners-Appellees, v. Chicago Title & Trust Company, as Trustee, Objectors-Appellants.
    (No. 71-329;
    Second District
    February 22, 1973.
    John F. Grady, of Waukegan, for appellants.
    Eva Schwartzman, of Libertyville, for appellees.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of tihe court:

This is an appeal from the order of the trial court which allowed a petition for annexation of certain territory to the Village of Green Oaks. O’PIaine road is adjacent to the territory in the petition, but the petition did not include the road. The express reason for the exclusion of O’Plaine road was that this portion of the road was included in the legal description contained in a prior annexation petition which was pending and undisposed of in the trial court at the time of the hearing on the petition in the instant case. The objectors-appellants challenged the sufficiency of the petition for failure to include the adjacent highway.

The sole issue is whether the petition for annexation was defective for failure to include the portion of the adjacent highway that was required by Ill. Rev. Stat. 1969, ch. 24, sec. 7 — 1—1, which provides in pertinent part:

“The new boundary shall extend to the far side of any adjacent highway * #

In re Petition to Annex Certain Territory to the Village of Green Oaks (James G. Dowden v. Chicago Title and Trust Co.) (1971), 1 Ill.App.3d 773, 275 N.E.2d 462, presented a most similar situation to this court. In that case the court held that the failure to include O’Plaine road was a fatal defect and not in accordance with the statutory provision above quoted.

The only difference between that case and the one now before us is that there was a prior petition pending in tire circuit court of Lake County which sought to annex property to the Village of Green Oaks and which included that portion of O’Plaine road contiguous to the property in question now before us.

Prior to 1967 the Annexation Statute, Ill. Rev. Stat. ch. 24, sec. 7— 1 — 1, did not include a provision that adjacent roads be included in a petition for annexation. As a result, in certain instances, the road or highway was omitted which caused considerable problems. The Legislature in 1967 remedied this situation by requiring that a petition for annexation shall extend to the far side of any highway contiguous to the property sought to be annexed.

The petitioners contend that they could not include O’Plaine road as it was included in a prior pending petition for annexation. In support of that contention they have cited City of East St. Louis v. Touchette (1958), 14 Ill.2d 243, 150 N.E.2d 178, and City of Countryside v. Village of La Grange (1962), 24 Ill.2d 163, 180 N.E.2d 488, which in substance hold that where there are two petitions for annexation, that the petition filed first must be disposed of before the second petition may be considered. We do not consider these cases as authority for omission of the contiguous highway in question here.

In In re Petition to Annex Certain Territory to the Village of Green Oak (James G. Dowden v. Chicago Title and Trust Co.) (1971), 1 Ill.App.3d 773, 275 N.E.2d 462, we stated at page 777:

“The language is clear and unambiguous that the new boundary of any annexed territory ‘shall’ extend to the far side of any adjacent highway, provided the territory being annexed is not within the corporate limits of any municipality. As the language of the statute is clear and explicit, the annexation must be exercised in the circumstances and manner prescribed in the statute. [Citation.] The requirement that all highways be included is a part of the annexation process * *

It is therefore the opinion of this court that the petition for annexation was fatally defective for failure to include the adjacent roadway and the judgment of the trial court granting such annexation must be reversed.

Reversed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Anthony Trinka, Defendant-Appellant.
    (No. 71-214;
    Third District
    February 27, 1973.

      Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, (F. Stewart Merdian, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant George Anthony Trinka, following a plea of guilty to a charge of misdemeanor theft, was sentenced to nine (9) months at the State Penal Farm, by the circuit court of Rock Island County.

On appeal in this court, defendant contends that the court failed to properly admonish him in accordance with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402). His contentions are specifically that the court failed to advise him properly of the nature of the charge against him pursuant to section 402(a)(1); that he was not advised of the minimum and maximum sentences prescribed by law for such offense (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(2)) and, also, that the court failed to determine that there was a factual basis for the plea of guilty before entering a final judgment. Ill. Rev. Stat. 1971, ch. 110A, par. 402 (c).

It appears from the record that defendant was indicted for burglary and the Public Defender was appointed to represent him. After defendant had waived preliminary hearing, pre-trial negotiations were conducted by defendant, his attorney and the State’s Attorney’s office. It was agreed that defendant would plead guilty to an information charging misdemeanor theft for which he would receive a nine month sentence at Vandalia (State Penal Farm) and that a felony charge of burglary against him would be dismissed.

When defendant appeared with his attorney, his attorney advised the court in defendant’s presence that the attorney had gone over the Information charging the offense of misdemeanor theft, with the defendant. Defendant acknowledged that this was so, and, also, that it was his desire to plead guilty to the charge of misdemeanor theft. Prior to accepting defendant’s plea, his attorney informed the court in the presence of the defendant, that he had advised defendant that he had a right to a jury trial; that he could waive a jury trial and have his case tried by the court; that the maximum sentence for misdemeanor theft was one year or a $500 fine, or both; that he had a right to subpoena witnesses in his own behalf and to cross-examine the witnesses presented by the State; and that the State would be required to prove his guilt beyond a reasonable doubt and that he was presumed to be innocent.

The court further inquired whether defendant had any questions about his rights to which the defendant replied that he did not. The court ascertained that the plea was voluntary and of defendant’s own free will. The State’s Attorney then recommended a nine-month sentence at Vandalia to which defendant through his counsel agreed with the understanding also that the burglary charge was to be dismissed. Defendant was asked whether he had any “quarrel” with the agreement and defendant replied that he did not. The court asked defendant if it was his understanding that he was to plead guilty and that the sentence would be a nine-month sentence at Vandalia, and defendant indicated that he understood and agreed thereto. The court thereafter indicated an acceptance of such plea of guilty and imposed the recommended nine-month sentence.

It is clear from the record that defendant was adequately advised of the nature of the charge to which he was pleading guilty and was advised of the contents of the Information, which specified that defendant had obtained unauthorized control of certain tools having a value of less than $150, which tools were the property of East Moline Auto Body. It was established in open court by defendant’s attorney in the presence of defendant that he had gone over the Information charging defendant with the misdemeanor theft and defendant acknowledged that this was true. Defendant indicated a desire to plead guilty to such Information. It is clear, therefore, that he was adequately informed of the nature of the charge against him.

He contends further on appeal that the court failed to advise him of the minimum and maximum sentences, which might be given to him as a result of such plea of guilty. It is clear that the information as to possible sentence need not come from the court personally where the record in court indicates that defendant has been adequately so advised. (People v. Miller, 2 Ill.3d 851, 277 N.E.2d 898.) He was here told that the maximum penalty for misdemeanor theft was imprisonment for one year or a $500 fine or both. This is precisely in the terms as set forth in the statutes. While it is trae that under Illinois Supreme Court Rules, information as to the minimum and maximum sentences prescribed by law should be directed to a defendant’s attention, it is not necessary that the court specify the minimum when no minimum is in fact specified in the statute, and it is sufficient under such circumstances that the attention of the defendant be directed to the maximum penalty which might be imposed for such offense. People v. Curtis, 3 Ill.App.3d 936, 277 N.E.2d 352.

Defendant likewise contends that the court failed to determine that there was a factual basis for the plea of guilty pursuant to Rule 402(c). The prosecution contends that defendant’s unequivocal admission that he committed the crime can be understood from the fact that he was pleading guilty thereto, and that this met the requirement of a determination of a factual basis for the plea. (People v. Hudson, 7 Ill.App.3d 800, 288 N.E.2d 533.) The Hudson case, however, is distinguishable for the reason that in such case the court specifically stated, “Do you understand that by pleading guilty you are admitting participation in the armed robbery?” The defendant there said that he did.

While it is clear that there is no particular method by which a trial court is required to satisfy itself that a factual basis for the plea existed, we have no information in the record in this cause from which we could determine that the court complied with Rule 402(c) which specifically provides that the court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for a plea. We do not believe we could divine, from the simple fact that a plea of guilty to a charge has been entered by defendant, that there was a factual basis for the plea. The factual basis can be shown either by admission of defendant or by a summary of evidence in presence of defendant showing that defendant committed the crime, or by having facts stated by witnesses, or by an examination of a pre-sentence report by the court. In absence, however, of any such showing in the record, we believe that this case should be affirmed but remanded to the circuit court of Rock Island County for the limited purposes herein described. We believe that the best interests of defendant, as well as the prosecution, would be served if this cause is remanded for the limited purpose of having the court vacate the judgment entered in this cause and then ascertain whether there is a factual basis upon which the court could rely prior to the entry of the judgment as against the defendant. If there is such factual basis established of record, the trial court may thereupon enter judgment on the basis of the plea of guilty in accordance with the plea bargaining agreement. In the event no such factual basis is established, then defendant, if he so desires, may withdraw his plea of guilty and this cause shall thereupon be subject to further proceedings in the circuit court of Rock Island County to the same effect and extent as if such plea of guilty had not been entered in this cause.

Remanded with directions.

STOUDER and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tracy Stewart, Defendant-Appellant.
    (No. 72-16;
    Second District
    February 21, 1973.

      Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    William B. Petty, State’s Attorney, of Mt. Carroll, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found defendant, Tracy Stewart (and co-defendants Willie B. Henne, James DePaolo and John Weisz) guilty of burglary and theft. Stewart was sentenced to a term of one to four years in the penitentiary.

On appeal defendant claims that the trial court erred in denying his motion to suppress certain evidence and that he was not proven guilty beyond a reasonable doubt.

The defendant was charged with the theft of a pliers, sidecutter and screwdriver, taken during the burglary of the Nature Center building at Palisades State Park. The tools, plus a red candle, (all seized from the auto of co-defendant Weisz) were the subject of the motion to suppress.

On Sunday, May 16, 1971, Savanna police received the description of an auto in connection with a reported theft of a car battery. Weisz’s auto, in which the four defendants were riding, matched the description and was stopped by a police officer. Weisz, the driver, was ordered to drive to a city parking lot. There, State Trooper Towery and Conservation Inspector Hensal (called to assist in the investigation) searched the vehicle. During the search, Hensal noticed the articles aforementioned but did not then know them to be contraband. The defendants were arrested on charges not pertinent to this case.

After the arrest, the Sheriff, Hensal, and Assistant Ranger Cate who was also present at the search, left to investigate a reported burglary at the State Park. Upon arrival, it was found that the Nature Center building had been entered and that the articles previously described, herein were missing. Remembering that such items had been seen in Weisz’s auto, the three returned to Savanna. Without requesting permission or obtaining a search warrant the car was entered and the described articles seized.

At the hearing on the motion, Towery and his partner, Trooper Bouseman, testified that tire ownership of the vehicle was ascertained after the auto had been driven to the city parking lot; that Towery requested and received consent from Weisz to search the auto. Weisz denied granting any person permission to search his auto. The trial judge denied the motion to suppress on the basis that Weisz had consented to the search.

Defendant argues that the search was violative of the Fourth Amendment of the Federal Constitution in that it was conducted without first obtaining a warrant. He additionally urges that the facts of the case do not bring it within any of the recognized exceptions for warrantless searches, i.e., plain view, consent, search incident to arrest or search of a moving vehicle.

Consent to a search waives the constitutional protection against unreasonable searches. (People v. Donel, 44 Ill.2d 280, 283 (1970).) Where, as here, there was contradictory testimony as to whether the owner consented to the search, credibility of witnesses is one factor which the trial judge may consider in resolving the conflict. A reviewing court will uphold the trial judge’s determination “unless it is clearly unreasonable.” People v. Ledferd, 38 Ill.2d 607, 610 (1967); People v. Harris, 34 Ill.2d 282, 285 (1966), cert. den. 384 U.S. 993. A review of the evidence herein indicates that the trial judge’s decision was reasonable.

Defendant alleges that even if consent was given, it was granted only to Towery and that Hensal, who also searched the auto, should not have been allowed to participate. This contention is without merit. Towery testified that, in the presence of Hensal, permission to search was requested and given. Under this circumstance, we find that the permission was a general, unqualified consent which extended to Hensal.

In the process of the search, Hensal observed the tools and the red candle. Defendant argues that assuming Weisz’s consent was given, it was a limited consent permitting only a search for a car battery; that the search exceeded the authority granted and the resultant observation of the articles in question was beyond the consent. We do not agree. This was not an exploratory search; based upon defendant’s own argument, it was appropriate to search the interior of the car for an auto battery. Law enforcement officers cannot be expected to disregard other items observed in the course of a lawful search. People v. Robinson, 40 Ill.2d 453, 457 (1968).

Defendant further alleges that, regardless of the validity of the first search or the information gained as its result, the second warrantless search of the vehicle was unconstitutional. When the officers learned of the missing items and recalled that similar articles had earlier been observed ip the Weisz auto, there was sufficient independent probable cause for them to conclude that the described property offended against the law. They were justified in reentering the vehicle without further consent of the owner. Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280 (1925); Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970) ; Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564, 91 S.Ct. 2022 (1971).

Defendant alleges that the Carroll-Chambers-Coolidge doctrine applies only when there are exigent circumstances (e.g., alerted occupants, fleeting opportunity to search) and in those cases where it is impracticable to secure a warrant. He agues that such circumstances were not present in the instant case, the search having occurred two hours after the occupants were under arrest and the auto in police custody in a city lot. This argument is resolved by People v. Smith, 50 Ill.2d 229, 231 (1972), wherein the Court held admissible evidence obtained by a warrantless search of a vehicle six hours after the car had been locked in a garage in another town.

This court’s decision of People v. Emert, 1 Ill.App.3d 993 (1971), cited in support of defendant’s position, is distinguishable. In that case, the warrantless search occurred three days, not two hours, after the arrest of the occupants. Additionally, in Emert the police had not observed during their initial search, the item they sought in the second search.

We hold that it was not unreasonable for the trial judge to find that the initial search was valid based upon consent; that information obtained as a result of the initial search created independent probable cause for the second search; and that despite his reasons, the trial judge correctly denied the motion to suppress. See, People v. York, 29 Ill.2d 68, 71 (1963); People v. Schmidt, 5 Ill.App.3d 787 (1972).

Defendant claims he was not proven guilty beyond a reasonable doubt in that his conviction was based upon “flimsy” circumstantial Evidence. We do not agree.

Cate and Park Naturalist Jachino both identified the tools recovered from the auto as tools missing from the Nature Center. Although the only distinctive mark on these commonly used tools was a green paint mark on the pliers, both men stated that they had worked with the tools in the past and were sufficiently familiar with them to afford ready recognition. There was additional evidence that the missing red candle was a mate to a green candle; that both candles had been purchased and burned at the same time during the Christmas hofidays. The green candle was admitted into evidence without objection; the jury was free to examine both and to observe the similarities between them, including the amount each had been burned. Finally, the facts indicate that the crime occurred between 5:00 P.M. on May 15 and 9:30 A.M. on May 16. All four men alleged they had been in Chicago until mid-morning of the 16th. However, a State Trooper testified that at 3:15 A.M., May 16, he had observed the Weisz auto a mile and a half from the Nature Center. A toll collector also testified to having observed the auto, with four male passengers, at the Savanna-Sabula Toll Bridge at 10:00 P.M. on May 15th.

Defendant emphasizes the results of an Illinois Crime Lab analysis of the paint on the plier handle and its comparison to a sample of a paint used on the park’s tables: the samples did not match. Defendant ignores, however, testimony that two types of green paint, manufactured by different companies, were used at the Park and that only one was available for the lab tests.

Finding no error, we affirm the judgment of the trial court.

Judgment affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.

       At the hearing on the motion to suppress, the Sheriff testified that it was Cate who had recalled seeing the items; at the trial, testimony indicated that it was Hensal who made the recollection. The testimony of both Cate and Hensal, however, indicated that they had observed the articles when the auto was first searched.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Bailey, Defendant-Appellant.
    (No. 72-139;
    Second District
    February 23, 1973.
    William J. Sturgeon, Jr., Public Defender, of Dixon, for appellant.
    Albert N. Kennedy, State’s Attorney, of Dixon, for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant was found guilty by a jury of aggravated battery and was sentenced to serve from one to five years in the penitentiary.

On appeal, defendant’s sole contention is that the indictment is void. In pertinent part the indictment charged:

“* 6 * that Johnny Bailey * # # committed the offense of AGGRAVATED BATTERY in -violation of Paragraph 12 — 4, Chapter 38> Illinois Revised Statutes, 1969, in that he, the defendant, knowing one Paul Nusbaum to then and there be a police officer of the City of Dixon, Illinois, did intentionally and knowingly without legal justification, cause bodily harm to the said Paul Nusbaum by kicking him * * * ”

Although no subsection of Section 12 — 4 is set forth in the indictment, we presume from the verbiage used that defendant was charged under Section 12 — 4(b)(6), which provides that a person is guilty of aggravated battery who:

“* * * in committing a battery * * * knows the individual harmed to be a peace officer # * engaged in the execution of any of his official duties * * _

According to this statute, a simple battery inflicted upon a police officer constitutes an aggravated battery only if the officer is “engaged in the execution of any of his official duties.” See People v. Spears, 106 Ill.App.2d 430, 435-436 (1969).

The instant indictment does not set forth an essential element of the offense in that there is no allegation that the police officer was engaged in the execution of his official duties. This element cannot be inferred, as the State alleges, from the wording, “knowing one Paul Nusbaum, to then and there be a police officer.”

Finding that the indictment does not contain a necessary element of the offense of aggravated battery as required by Section 111 — 3(a)(3) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, sec. 111 — 3(a)(3)), and under the authority of People v. Plocar, 411 Ill. 141, 146 (1952), defendant’s conviction is hereby reversed.

Judgment reversed.

SEIDENFELD, P. J., and ABRAHAMSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmy L. Kelley, Defendant-Appellant.
    (No. 72-164;
    Second District
    February 22, 1973.
    Frank P. Vella, Jr., of Rockford, for appellant.
    William J. Scott, Attorney General, of Springfield, and John B. Roe, State’s Attorney, of Oregon, (James B. Zagel, Assistant Attorney General, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found defendant guilty of the offense of murder in the drowning of a 12-year old girl in Byron, Ogle County, on June 29, 1970. On appeal, defendant contends that the trial court erred in denying his motion to suppress as involuntary two separate oral statements.

Defendant had been questioned at the time of the occurrence. (It was he who had reported “a drowning” to several people, including the police.) He was not then charged.

The first statement which defense sought to suppress was made to one Duane Bailey, Chief of Police of South Beloit, with whom defendant had a prior acquaintance.

On the morning of July 30, 1970, defendant telephoned Bailey and, as a result of the call, they met at the Viking Restaurant in the City of Rockford, Bailey being accompanied by Detective Markley. It is undisputed that at no time during this meeting was defendant informed of his right to counsel or against self-incrimination. Bailey testified that he initiated the conversation by asking defendant the purpose of the meeting. Defendant replied that he had killed the girl in Byron and wanted to “get it off his chest”; that he would voluntarily go to South Beloit to give Bailey a signed statement; that after three days time (during which he and his fiancee were to determine if they would marry) he would take Bailey to certain evidence in Byron; and that he did not want to go into Ogle County sooner, in fear that he would be arrested. Bailey further testified that he had detected the odor of alcohol, that defendant stated he had been drinking, but that he (Bailey) did not believe defendant to be intoxicated. Promising to return to the restaurant shortly, defendant left to consult with his fiancee. Bailey and Markley waited, but defendant did not return.

Markley testified to the conversation, corroborating Bailey’s testimony on all significant aspects except to state that he did not notice an odor of alcohol emanating from defendant.

Defendant testified that he had a history of drug and alcohol use; that on the morning in question, he became “high” after consuming twelve to fourteen alcoholic drinks and ten pills (claimed to be barbituates); that while he had called Chief Bailey that morning, it was Bailey who requested to see him; that when Bailey brought up the topic of the drowned girl, he said he had been arrested on suspicion, but that the subject was not further discussed. Defendant was arrested on August 3, 1970.

Three women, the manager of the restaurant, defendant’s fiancee and another, were called by the defense. The manager testified that defendant’s manner at the time was somewhat unusual. The other two were of the opinion that the defendant was intoxicated.

Two expert witnesses were asked whether, under hypothetical facts, the mind of a person would be overborne by consumption of drugs and alcohol as testified to by the defendant. One concluded that the mind would be overborne, the other, that it would not.

It is contended that the conversation was not “the product of a rational intellect and free will” in that defendant’s “will was overborne” by his prior consumption of drags and intoxicating liquors. In support of this argument defendant relies on Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770 (1963), wherein the defendant, while in police custody, was given a drag having the effect of a “truth serum.” There the Court remanded the case for the purpose of taking evidence on the issue of whether the will of the defendant was overborne by drugs. Here, evidence on this point was heard and it was conflicting. It therefore became incumbent upon the trial court to determine, on the basis of the conflicting evidence, whether the statements should be allowed to go to the jury. Having done so, the trial court’s decision shall not be reversed unless it is found to be against the manifest weight of the evidence or a clear abuse of discretion. People v. Nemke, 46 Ill.2d 49, 56 (1970), cert. den. 402 U.S. 924 (1971); People v. Hicks, 35 Ill.2d 390, 397 (1966), cert. den. 386 U.S. 986 (1967); People v. Dogoda, 9 Ill.2d 198, 202 (1956); People v. Bryant, 101 Ill.App. 2d 314, 319-320 (1968).

Defendant points out that Bailey did not apprise him of his constitutional rights as provided in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966). He admits the facts herein do not present an in-custody situation but argues that the failure to give Miranda warnings is relevant as one of the circumstances to be considered in determining voluntariness. The Miranda decision applies only to cases of custodial interrogation. People v. Bey, 45 Ill.2d 535, 538-539 (1970); People v. Morehead, 45 Ill.2d 326, 330-331 (1970), cert. den. 400 U.S. 945 (1970); People v. Richards, 120 Ill.App.2d 313, 342-343 (1970).

The record shows that defendant and Bailey had been acquainted for some time prior to the events in question and considered themselves to be friends; the phone call and its resultant meeting were initiated by defendant; although Bailey was a law enforcement officer, the crime and the meeting took place without his jurisdiction and he at no time restricted defendant’s freedom to terminate the interview or leave the premises. Under these facts, defendant’s oral statements were given “freely and voluntarily without any compelling influence,” and were admissible. People v. Hicks, 44 Ill.2d 550, 553-554 (1970), cert. den. 400 U.S. 845 (1970); People v. Howell, 44 Ill.2d 264 (1970), cert. den. 400 U.S. 846 (1970); In re Orr, 38 Ill.2d 417, 422-424 (1967), cert. den. 391 U.S. 924 (1968).

The second statement sought to be suppressed was made to arresting officer Robert Bales, a member of the State Police, after defendant was indicted, represented by counsel and incarcerated in the Ogle County jail.

On Sunday evening, August 23, 1970, Bales received a telephone call from the jailer informing him that defendant had requested to see him. Aware that defendant had been indicted and was represented by counsel, Bales went to the jail. On meeting, he asked defendant what he could do for him, to which defendant answered that he wanted to tell all about the drowning, wanted it written down, wanted to plead guilty to voluntary manslaughter and wanted a guarantee that Bales would not testify against him. At this point, Bales informed defendant that he would have to testify against him whether there was a written or oral statement, and asked if defendant had contacted his attorney about this meeting. Defendant responded, “I make up my own mind. I know what he wants and I know what I want. All he wants is my money and I want out of here # # As he began to explain his guilt more fully, Bales again informed him that he would have to testify to any confession, asked defendant not to confess and refused to write down defendant’s admissions. Defendant continued to provide details of what had happened at the scene of the drowning. Bales then acquiesced to defendant’s wishes by listening to his confession and questioned defendant on various aspects. The interview lasted about two hours but was not committed to writing. Although Bales testified to having given defendant the Miranda warnings at the time of his arrest, he admitted that the warnings were not repeated at this interview, except as heretofore related.

Defendant denied requesting the interview and remembered little of it except to recall that Bales attempted to convince him to plead guilty and promised to intercede with the prosecutor for a lesser charge. He did not recall saying he had killed the girl in Byron or discussing his right to have a lawyer present.

It is argued, based upon Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246 (1964), that the statements made to Bales were inadmissible because they violated defendant’s right to counsel. In Massiah, government agents obtained incriminating statements surreptitiously, after defendant, who was represented by counsel, had been indicted and was free on bail. The court there held the statements inadmissible on the ground that they had been obtained in the absence of counsel.

In People v. Lagardo, 39 Ill.2d 614, 616 (1968), the Massiah doctrine was interpreted “to exclude all post-indictment incriminating statements obtained in the absence of counsel, even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception.” (See also, People v. Halstrom, 34 Ill.2d 20, 21-23 (1966).) In both of these cases the Court found that the presence of counsel had not been waived. This doctrine, however, does not make all post-indictment incriminating statements per se inadmissible. See, People v. Milani, 39 Ill.2d 22, 25-28 (1968).

In People v. Smith, 42 Ill.2d 479, 482-483 (1969), the defendant, immediately after being booked on the charge of burglary, arraigned and admitted to bail, gave an incriminating statement to the authorities. Admittedly not a post-indictment situation, the statement nonetheless was held to have been properly introduced since the defendant, before giving the statement, had expressly waived his right to have counsel present.

Under the facts of the instant case, it is apparent that defendant was not only fully apprised of his right to counsel but that counsel had already been retained; that when Bales asked defendant if he had informed his attorney about the interview, defendant’s answer was a statement disavowing any need for his attorney. Despite Bales’ warnings to defendant against confession and his statement informing defendant that he would testify to any admissions, defendant insisted upon relating the details of the crime. Under these circumstances, it is clear that defendant knowingly and intelligently waived his right to the presence of counsel. We conclude that the Massiah doctrine is not applicable under the facts here present.

Finally, it is contended that the confession to Bales was not “the product of a rational intellect and free will.”

Defendant testified that he told Bales that his cell-mate made him nervous and that he was going to kill him if he did not get out of jail. He testified that each day he was receiving pills (sedatives) which he stored and, that before Bales arrived, he consumed between ten and twelve of the pills at one time and took another during their interview. A jailer testified that on various occasions the defendant was found to be hoarding his medicine, and it was stipulated that the defendant’s cell-mate would, if called, testify to defendant’s having consumed at least eight pills shortly before requesting to see Bales.

Both Bales and the jailer testified that the defendant’s condition at the time of the interview was no different from his condition on other occasions. The opinions of the same two experts, based upon the assumption that the defendant had devoured the number of pills claimed, varied, one being of the opinion that defendant’s statements would not have been the rational product of a free will, the other, that the quantity of pills would not have such effect.

Again, based upon conflicting evidence, the trial judge was called upon to decide the voluntariness of this statement. Using the same reasoning expressed earlier herein, we find that the trial court did not commit reversible error in allowing the statement of August 23rd into evidence.

The decision of the trial court is affirmed.

Judgment affirmed.

SEIDENFELD, P. J., and ABRAHAMSON, J, concur.


author: Mr. JUSTICE SIMKINS

text:
    Floyd Bunch, Plaintiff-Appellee, v. Lowell Thomas Rose et al., Defendants-Appellants.
    (No. 11795;
    Fourth District
    February 14, 1973.

      Earl R. Anderson, of Massey, Anderson & Gibson, of Paris, and Roberts & Kepner, of Springfield, (Maurice Kepner, of counsel,) both for appellants.
    Ryan and Heller, Ltd., of Mattoon, (Harlan Heller and Richard Kruger, of counsel,) for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This case arose from a collision which occurred at an open country intersection. The Plaintiff-Appellee, Floyd Bunch, was a guest passenger riding in a pick-up truck being driven by the Defendant-Appellant, Lowell Thomas Rose. The truck collided with an automobile owned and operated by Defendant-Appellant, George W. Bender. In his complaint, plaintiff charged Rose with wilful and wanton conduct and Bender with negligence. The case was tried before a jury which found against both defendants and assessed damages in the sum of $75,000. The trial judge entered judgment on the verdict but later reduced the judgment to $74,000 by allowing credit for a $1,000 payment made under an insurance policy of defendant Rose.

The incident occurred on August 15, 1969, at approximately 7:00 P.M. It was still daylight, the road surface was dry, the weather clear. The plaintiff was riding with Rose in the cab of the truck, seated on the right with his 10 year old daughter, Jana Bunch between him and the driver, defendant Rose. The truck was headed east. Defendant Bender, with his wife as a passenger, was headed north. The field at the southwest comer of the intersection was planted in corn, the corn was tall. It had been cut back from the intersection some 15 feet, but blocked Rose’s view to the south and Bender’s view to the west. The field on Bender’s right (to the east) was planted in soybeans which were not high enough to obscure his view in that direction. The field on Rose’s left was also planted in corn. Thus Rose’s vision was obscured both to his left and right while that of Bender was obscured to the left, from which direction Rose was proceeding, but not to his right. The roadways were level, the intersection was not controlled by any yield, stop or other traffic sign. Illinois State Trooper Osborne testified that the point of impact was two to three feet south of the center of the intersection. Bender’s testimony, with which Mrs. Bender’s testimony was in substantial agreement, was that he was going north in the middle of tire road, speed 40 to 50 miles per hour. About 200 feet from tire intersection he sounded his horn, heard no response. He could not see anything on the road to his left until he was 40 to 50 feet south of the intersection when he observed Rose’s truck which was then about 120 feet from the intersection and going at a rate of 55 to 60 miles per hour. Bender applied his brakes but the truck maintained its speed or perhaps accelerated to about 65 miles per hour. Bender had slowed to 10 to 15 miles per hour wheii he entered the intersection but struck the right rear of the truck. Bender testified that immediately after the collision Rose told him that “I heard your honking but I thought I could speed up and get across before you got there.” Mrs. Bender’s testimony varied with that of her husband in rather minor detail as to estimates of speed and distance. She testified, on cross-examination, that at the time of giving her deposition she thought that her husband could have avoided the accident “# * * if he had thought fast enough by turning to the left.” This opinion was admitted without objection. Bender’s speed estimates given during his deposition varied from those given at trial.

Defendant Rose testified that he was travelling 30 to 40 miles per hour as he approached the intersection and he reduced that speed after entering the intersection. He did not see Bender’s car in time to form an opinion as to its speed, seeing only an instant before the collision happened. He heard no horn and said there was no conversation about his hearing one or increasing his speed.

The plaintiff Bunch had no recollection as to how the accident occurred, his daughter Jana was unable to provide any details. Plaintiff sustained a back injury, was hospitalized for two months and placed in traction. Surgery was performed to fuse the bony union between the tenth and twelfth thoracic vertabrae. After discharge from the hospital he remained at home for two months and returned to his job as a side faster at a shoe factory on December 22, 1969. His medical advice was to refrain from heavy work, and he wore a back brace until March, 1970. Doctor Peterson testified that he had last seen plaintiff on September 3, 1970, at which time he still complained of low back pain, that this was caused by the fusing of the vertabrae during the healing process, that the pain was probably permanent but not likely to interfere with a normal worklife.

Plaintiff testified that he had difficulty in performing his work, and was exhausted at day’s end. Both plaintiff and his wife testified to his inability to engage in former activities such as hunting, fishing, playing with his daughter, maintenance work around the home and on the family car. Plaintiffs medical expenses amounted to $4073 and he lost $2489 in wages.

To establish future loss of wages defendant, on the second day of trial, called two witnesses neither of whom had been listed in the plaintiff’s answer to interrogatories on June 25, 1970, nor in plaintiffs answer to the court’s pretrial order entered December 9, 1970, to the effect, “that each party shall furnish to adverse parties names of persons having knowledge of relevant facts and their addresses on or before 1/1/71. Names and addresses of persons later discovered to be furnished within 24 hours of discovery.” The witnesses in question were Richard Helton, manager of the Brown Shoe Company where plaintiff was employed and Robert Meier, an economics statistician at Eastern Illinois University.

Before the first witness was called on the second day of trial and outside the presence of the jury, plaintiffs counsel informed the Court and defendant’s counsel that he had, the night before, and for the first time talked to Meier and intended to call him as a witness on the issue of damages. That he had never used the witness before, that he had never before used a “statistician on economics in my life.” No objection was stated to the use of the witness Helton, nor is any error urged as to plaintiff’s failure to fist him as a witness. As to Meier, Bender’s counsel stated the following objections, “I object to the witness. The purpose of listing the witness is to give the other side a chance to examine the witnesses themselves. This is a type of witness we will have to speculate as to what he is going to say and what he is going to be. I just want to make that general objection. I will agree that he was probably not talked to until last night. On the other hand, there was no warning to us. I think he could have been talked to two or three nights ahead of time, to give the defendants a chance to check what he is going to say and have a chance to answer.” Plaintiffs counsel responded, “I think the cases hold, when you have newly discovered evidence, it is permissible to offer it. It is not any violation of the object of the statute”, to which Bender’s counsel replied, “I will agree with that. It is [not] newly discovered evidence. This is a part of the case we normally expect.” The court overruled the objection. We note that this was the extent of the objection made to Meier’s testimony. There was no request for continuance on the part of defense counsel, nor was there any request that the witness be made available for interview prior to his testifying.

Helton then testified that there were two production lines on which side lasters worked. Line 1, the faster, consisted of 3 men, and line 2, the slower, was manned by 4 men. He further testified that side lasters were paid on a piece-work basis and prior to plaintiff’s injury the rate of pay was $5.02 per 100 pairs of shoes and after the injuries the rate at the factory was increased to $5.40. The plaintiff testified that he was unable to produce as much work following his accident as he had been prior thereto. He had been on the faster line prior to the accident and was assigned to the slower line after the accident. Helton testified that there was an 11% decrease in plaintiff’s production after he returned to work and explained this by saying that prior to the accident plaintiff had produced 36% of the faster line but thereafter produced only 25% of the slower line. Helton also testified as to the number of shoes which defendant had been able to produce in one full week, beginning January 10, 1970, and testified as to the pay which he had received for each of seven weeks prior to the accident. The record discloses that no objection was made at the time Helton was presented as a witness and not a single objection was made by defense counsel to any question put to, or answer elicited from, him during the entire course of his testimony including, of course, his testimony relating to the 11% loss of production. Helton also testified that he could translate the 11% loss of production into dollars of loss to plaintiff from the time that he went to work on line 2 to the present and that that loss amounted to $3006.00 “This would be the amount that he lost, would be the 11% that he lost actually from the time that he went on line 2 until the present date.” Defense counsel asked only two questions on cross-examination which resulted in amplification, by Helton, as to how he arrived at the $3006.00 loss figure. There was no motion to strike any of Helton’s testimony.

Meier was then called as a witness and testified as follows: Plaintiff’s life expectancy was 29.9 years, his work expectancy 22.3 years. He testified as to statistics kept by the Bureau of Labor and particularly to the earnings of laborers in the leather goods and footwear industry from 1947 to 1969, both nationally and in the State of Illinois. The average increase in earnings during the period was 4%% per year, and for the last 5 years was 5.1%. He testified that from these figures he was able to project with reasonable certainty the future wages to be paid to shoe workers in Coles County and submitted a chart of the future salaries. Then, using the 11% decrease in plaintiffs productivity, as testified to by Helton, Meier concluded that plaintiff would sustain a loss of future earnings during the period of his work expectancy in the total sum of $31,627. On cross-examination, Meier was asked if he was assuming any change in economic growth as inflation and responded that his computations were based on the assumption that the rate of inflation of the past would continue. Defendant Bender then moved to strike Meier’s testimony on the ground that the statistics used would have no established relationship to the community because the figures were based on Statewide figures and not confined to Coles County, where plaintiff worked and that there was no evidence to show that any loss would continue was overruled. But this witness testified that “this data would be applicable for Coles County just as it would be for any other county in the State.”

Defendant-Appellant Rose states that the issue which he presents for review are:

A
Can the $75,000 judgment stand when it is based on the “false fact” of a $31,627 future wage loss which the evidence will not support?
B
Under the evidence and considering the admissions of counsel, was Defendant Rose guilty of wilful and wanton misconduct?

Defendant Rose is represented in this Court by counsel who did not represent him at the trial level. With reference to Point A, defendant Rose first argues that Meier was a “surprise witness” who should not have been permitted to testify. We will not consider this issue since the record establishes that trial counsel for Rose made no objection to plaintiff’s tender of Meier as a witness. There was an objection by Bender’s counsel but the objection was neither joined in nor adopted by Rose and Bender’s objection does not inure to the benefit of Rose on this appeal. Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 108, 187 N.E.2d 425; Central Standard Life Insurance Co. v. Gardner, 36 Ill.App.2d 292, 302, 183 N.E.2d 881.

This defendant also complains that Meier used “actual” as distinguished from “neutral” figures in projecting future loss of wages and that his estimate was based upon assumed future inflationary trends. He also urges that the witness Helton established a “false fact” which was then adopted and used by Meier in his testimony concerning future wage loss. He argues that the 11% loss of production estimate, which Helton arrived at by deducting his 25% share of the “slow line” from his previous production record of 36% of the “fast fine” constitutes the “false fact”. Examination of the record, however, indicates that Helton’s testimony represents 12 full pages of questions and answers. He explained how production records were kept, how payrolls were made up, how production was reflected in paychecks since side lasters were paid on a piecework basis; he gave figures as to production of the fast fine on which plaintiff worked prior to his injury with testimony as to his earnings for a period of 7 weeks prior to injury, gave production line figures on the “slow” line to which defendant was assigned after the injury and these figures were current to the date of trial. The record further reveals that neither defendant Rose nor defendant Bender interposed a single objection to any question put to Helton nor to any answer elicited from him, nor was there any motion, by either, to strike any part of his testimony. Neither Rose nor Bender can be heard, in this Court, to object to the content of the testimony of Helton. A party will not be permitted to raise objections to evidence in an appellate court which were not urged in the trial court. (Blyzes v. Midwest Towing Co., 109 Ill.App.2d 48, 57, 248 N.E.2d 305; Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 116, 199 N.E.2d 769.) The same rule applies to the testimony of Meier whose direct testimony also covers some 12 pages of the record during which defendant Rose made not a single objection. Defendant Bender made but one which was overruled but that ruling is not assigned as error. Defendant Rose made no motion to strike any of Meier’s testimony. As we have noted, Bender moved to strike the testimony on the ground that the statistics on which it was based had no relation to Coles County where plaintiff was employed; but Meier then testified that Iris figures were indeed applicable to Coles County, and to every other County in the State. This testimony stands unrebutted, and the court’s ruling on the precise question presented by the motion to strike was not error.

Defendant Rose next argues that there is no evidence that plaintiiFs injuries diminished his ability to work and there is no medical testimony to that effect. Doctor Stanley Brandon, an orthopedic surgeon testified that plaintiff had two fractured ribs and a vertebrae fracture, thoracic vertebrae. That x-rays of the lower fourth thoracic vertebra, lumbar spine and vertebra revealed a shift to the right through the 11th thoracic vertebra with associated compression fracture at that level. His diagnosis was “severe compression fracture of the 11th thoracic vertebra with nerve route irritation.” Doctor Brandon eventually performed surgery and fused the 10th to the 12th thoracic vertebrae. That the scars at the site of the surgery are permanent. That defendant might or could develop arthritis in the area of the surgery or fracture, that such a condition could cause pain. Plaintiff was referred to Doctor Walter Petersen, an orthopedic surgeon, for post operative care. Doctor Petersen testified that plaintiff was discharged from the hospital on October 15, 1969, that he released plaintiff to return to work on December 22, 1969. That he continued to see plaintiff thereafter and that on September 3, 1970, defendant was still complaining of discomfort in his low back. That there was a “fixed extension contracture — below the level of tire injury”. That plaintiff had a fibrous ankylosis that appeared to be more permanent than “* * * we thought it would be in December”. Doctor Petersen testified that the symptoms of pain which plaintiff was enduring on September 3rd might be permanent in nature. That the immobility of the vertebrae involved in the fusion is permanent. The doctor testified that he would not expect plaintiff’s normal work life expectancy to be reduced by the injury, that he did not foresee “* * * any significant care for the residual complaints, although he may seek some advice and care from time to time”. That with heavy lifting plaintiff could have pain on a permanent basis. Plaintiff’s own testimony, as above indicated, is to the effect that he is tired and worn out after a day’s work, that he is unable to last as many shoes now as before his injury. That his hip is numb at the point where bone was removed for use in the fusion procedure. The question of diminution of earning capacity, as well as the permanency of his injuries are questions of fact to be decided by the jury. (Seyferlich v. Maxwell, 28 Ill.App.2d 469, 171 N.E.2d 806.) The plaintiff himself may testify, as here, that his injuries diminished his capacity to work, and the general rale is that the appearance of the plaintiff on the witness stand, his testimony as to the nature of his injuries and their duration is sufficient to take the question of impaired earning capacity to the jury. (22 Am.Jur.2d Damages, sec. 314.) The evidence here was sufficient to permit a jury to find that plaintiff’s earning capacity was permanently impaired. Though not included in the statement of issues presented for review, Rose argues that the jury was instructed that among the elements of damage to be considered was “The value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future”, but that I.P.I. 34.02 which contains the formula for making the reduction of future wage loss to present cash value was not given. The failure to give I.P.I. 34.02 is not reversible error per se, Kubajak v. Verbrugge, 59 Ill.App.2d 344, 207 N.E.2d 344. Defendant did not object to the damage instruction which was given nor did he tender an instruction from the 34 series of I.P.I. and not having done so, he cannot now complain. (Savage v. Chicago and Joliet Elec. Ry. Co., 238 Ill. 392, 87 N.E. 377; Perry v. Nevin Hotel Co., 349 Ill.App. 22, 109 N.E.2d 810.) Illinois Revised Statutes 1971, Ch. 110, par. 67 — 3 provides, “No party may raise on appeal the failure to give an instruction unless he shall have tendered it.” There is no merit to the point raised about the instructions.

Defendant Rose also argues that the evidence will not support the jury’s finding of wilful and wanton conduct. We have briefly summarized the facts above. There is sufficient evidence to support the finding.

Defendant also argues that, in closing argument, plaintiff’s counsel, as to defendant Rose, made binding “judicial admissions” which preclude recovery. We have examined the closing argument. In Sabo v. T. W. Moore Feed and Grain Co., 97 Ill.App.2d 7, 239 N.E.2d 459, plaintiff’s counsel, in argument to the jury as to the defendant Humphreys, stated that “* * * he was particularly impressed with Humphreys’ truthfulness * * * that he could not in good conscience, state that he felt Humphreys was at fault * * The court held that unless these statements of counsel constituted judicial admissions they would not serve to relieve defendant of liability. That “Judicial admissions are to be distinguished from evidential admissions in that the former are binding and are to be considered incontrovertible”. Here, plaintiff’s counsel was stating his own opinion as to what the evidence showed and, in addition told the jury “I will say we want you to examine the evidence and if you think I am wrong about that, then you have a right to return such a verdict.” The remarks in question did not, under these circumstances, constitute judicial admissions nor relieve defendant Rose of liability.

Defendant Bender’s brief contains no statement of the issue or issues presented for review as required by Supreme Court Rule 341. We assume that portion of the brief entitled “Points and Authorities” to set forth the issues to be reviewed. Many of the points relied upon by Bender are identical to those argued by Rose and there is no need to repeat them.

Bender argues that there is no evidence to show that plaintiff was in the exercise of due care. The evidence shows that Rose was driving, that plaintiff was seated to the right of the driver, next to the passenger’s door and that plaintiff’s daughter was seated in between, that Rose did not recall plaintiff saying anything prior to the impact. Assuming, arguendo, that this evidence establishes the plaintiff did nothing, that he simply sat in the cab as a passenger, it seems clear that the issue of due care on his part was properly left to the jury. This has been held to be true even in cases where the injured passenger is asleep (and of course did nothing) at the time of the collision. (Gillan v. Chicago North Shore and Milwaukee Ry. Co., 1 Ill.App.2d 466, 117 N.E.2d 833; Opp v. Pryor, 294 Ill. 538, 128 N.E. 580.) The Court in Gillan observed that the passenger in Pryor “was for all practical purposes sound asleep when approaching the railroad crossing”. Here plaintiff was in no better position and had a right to assume that Rose was looking carefully since plaintiff was a passenger having no control over the operation of the truck. (McCormack v. Haan, 30 Ill.App.2d 311, 174 N.E.2d 206.) In Hatcher v. New York Central R.R. Co., 17 Ill.2d 587, 593-594, 162 N.E.2d 362, the court said:

“With reference to the duty of a passenger riding in an automobile the language of the court in Rhoden v. Peoria Creamery Co. 278 Ill.App. 452, 464, 465, is particularly applicable here. There the court said: ‘In Christensen v. Johnston, 207 Ill.App. 209, the court quoted with approval the following language from Clarke v. Connecticut Co. 83 Conn. 219: "What conduct on the passengers part is necessary to comply with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported. Manifestly, the conduct which reasonable care requires of such a passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the standard of duty is the same, the conduct required to fulfill that duty is ordinarily different because their circumstances are different.” A passenger riding as an invited guest in an automobile is only required to exercise such care as the exigencies of tire situation require; in other words, such guest is bound to use such care and caution as a person situated in like circumstances would exercise (Fredericks v. Chicago Rys. Co. 208 Ill.App. 172), and the fact that defendant in error did not do or say anything as the car approached the truck did not, in our opinion, show, as a matter of law, that she was not in the exercise of ordinary care for her own safety. The question whether she did or failed to do all that a reasonable person in like circumstances would have done was properly submitted to the jury by the trial court.’ ”

The question of plaintiff’s due care was properly submitted to the jury.

Bender argues that evidence which has no probative force whether objected to or not cannot be considered and that “The testimony of Helton and Meier should have been stricken * * The trouble with this proposition is that neither Bender nor Rose made a motion to strike the testimony of Helton. Bender’s motion to strike the testimony of Meier was based on a ground different than raised on this appeal and as previously noted the court’s ruling on the objection was correct. For reasons best known to themselves, counsel, during the trial, were content to let the testimony be adduced without objection and without moving to strike any portion of Helton’s testimony. As a general rule evidence to which no objection is made is properly in the case for all purposes (Knight v. Chicago and North Western Ry. Co., 3 Ill.App.2d 502, 123 N.E.2d 128), and generally incompetent evidence, when admitted without objection has the same effect and is given the same consideration as though it was legally admissible and is entitled to its natural probative effect and force (Sheffield v. City of Chicago, 328 Ill.App. 321, 65 N.E.2d 486), and evidence admitted without objection is entitled to due weight in deciding the issues and this rule has been applied to secondary evidence and to expert opinion as well. (Duncan v. Martin's Restaurant, Inc., 347 Ill.App. 183, 106 N.E.2d 731.) In addition there is other competent evidence in the record, including the testimony of the plaintiff himself, which is sufficient to support the proposition that his earning capacity has been permanently diminished. There was no objection by either defendant to submitting the issue to the jury at the time of the instruction conference.

Defendant Bender complains of matters and rulings of the court involved in final arguments of counsel. We have considered this point, find that no error was committed and deem the point to require no further comment.

Lastly, we observe that this appeal is largely an effort to persuade us to reverse a case upon questions of evidence and instructions to which no objections were made. The place to try a case is in the trial court, not in a court of review.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Dean Abel, Defendant-Appellant.
    (No. 11609;
    Fourth District
    February 22, 1973.

      John F. McNichoIs, of Defender Project, of Springfield, for appellant.
    Paul S. Stone, State’s Attorney, of Sullivan, for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was convicted of the offense of theft of property with a value in excess of $150 upon his plea of guilty. A sentence of not less than three nor more than ten years in the Illinois State Penitentiary was imposed. In this direct appeal the defendant contends that the trial court accepted the plea of guilty without first ascertaining a factual basis for the plea and that the court did not advise the defendant that he had a right to plead not guilty as required by Supreme Court Rule 402(a) (3). Chap. 110A, par. 402(a)(3) Ill. Rev. Stat. 1971.

The defendant was arrested for the instant offense some time after 10:30 P.M. on December 22, 1970. On the morning of December 23, 1970 he appeared in court and the instant charge was filed upon the defendant’s waiver of indictment. The trial court explained to the defendant his rights under the case of Miranda v. Arizona (1966), 384 U.S. 436, advised the defendant of the right to counsel and then explained in considerable detail the various methods of posting bail. The defendant was advised as to his rights to a jury trial and a preliminary hearing. The defendant was also informed that he had the right to waive any of the enumerated rights. The defendant requested counsel, counsel was appointed. Prior to the appointment of counsel and based upon the conversation at the time of the explanation of the foregoing rights the court enquired whether the defendant “had in mind offering to enter a plea at the time”. Ultimately this case was concluded upon the entry of a plea of guilty arising out of negotiations between defense counsel and the State’s Attorney. At this juncture we note that Rule 402(d)(1) contemplates that the trial judge shall not initiate plea discussions.

In the afternoon of the same day, the defendant appeared with court appointed counsel, waived preliminary hearing, indictment, was advised as to the possible penalties for the charged offense, was advised as to his right to a jury trial or a trial before the court without a jury, and was given a form which indicated both a plea of guilty and a waiver of jury trial. The defendant signed this printed form. The court then informed tire defendant of the legal effect of pleading guilty and of waiving trial. The State’s Attorney stated for the record the terms and conditions of the negotiated plea which included a recommendation by the People of a sentence of three to ten years, the dismissal of three pending charges —one felony and two traffic offenses.

Court informed the defendant that he wanted to determine that he did in fact commit the acts set forth in the information, that the defendant knew the possible penalty and knew what the recommendation of the People as to sentence would be. The court did not accept the plea of guilty, but proceeded to a hearing in aggravation and mitigation. At that hearing the sheriff testified as follows:

“Approximately 10:30 last night we received a report of a pick-up truck, being stolen from in front of the Knotty Pine Tavern. The truck had the name Harry Dugan painted on the side. We put out a local bulletin on this track and shortly thereafter we had another report of mail boxes being knocked down South on Route 32. We alerted the car in Windsor — City police car which proceeded in a Northerly direction on Route 32 and one of our cars and also the City police car went South. The Windsor police car noted the lights of a vehicle turning on the Findlay Road and followed it and approximately three miles West they found the truck overturned and about the same time or shortly after that one of our deputies arrived at the scene and found Mr. Abel crawling out of the Ruck. He seemed to be injured about the head and chest. He was bleeding quite profusely so they requested an ambulance. We called Mr. McMullin and they sent an ambulance out. At first he refused to go to a doctor or a hospital but finally the boys got him in and bought [sic] him to the Best Clinic.”

In addition to the foregoing the court heard matters relating to the prior record of the defendant and his involvement with law enforcement officials in adjoining counties. Following this hearing the court entered an order accepting the plea of guilty and sentencing the defendant to a term of not less than three nor more than ten years.

It is urged that the record is insufficient in furnishing a factual basis for the plea in that intent to permanently deprive the owner of the property is not established. We do not agree. The indictment in this case specifically charged that the defendant obtained unauthorized control over the pickup truck, alleged the value of the truck to be in excess of $150 and that the defendant obtained such unauthorized control with intent to deprive the named owner permanently of the use and benefit of the property. At several times during the interrogation of the defendant, in an effort to ascertain the voluntary nature of the plea, the court inquired of the defendant if he understood the nature of the charge and if his plea of guilty was based upon the fact that he was in fact guilty of the charge as specified in the information. We deem this to be sufficient substantial compliance with the requirements of Rule 402 to ascertain the existence of a factual basis for the plea.

This record also establishes substantial, if labored, compliance with the remaining requirements of Rule 402. It is true that the defendant was not explicitly advised that he had a right to plead not guilty. We agree with our colleagues in the Fifth District as stated by them in the case of People v. Krouse, 7 Ill.App.3d 754, 288 N.E.2d 543, that the object and purpose of the requirement found in 402 that the defendant be advised of his right to plead not guilty is to ascertain that the defendant be aware of the alternatives available to him. In this case as in Krouse the defendant was advised of his right to a jury trial, of his right to a trial before the court, and fully informed as to the burden upon the people to establish his guilt beyond a reasonable doubt. Clearly, in the context of this lengthy procedure, the defendant was given to understand the alternatives available to him. See People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30, and People v. Grace, 8 Ill.App.3d 847, 290 N.E.2d 318.

Referring again to the factual basis for the plea, we note that such was injected in this record at the hearing in aggravation and mitigation and in rather unusual chronology. The hearing in aggravation and mitigation is for the purpose of informing the court of the subjective matters aimed at fixing sentence. It is much to be preferred that the factual basis for the plea of guilty be ascertained prior to and separate from the hearing in aggravation and mitigation. However, the procedure here employed has been approved in People v. Warship, 6 Ill.App.3d 461, 285 N.E.2d 224.

The judgment and sentence of the circuit court of Moultrie County is affirmed.

Judgment affirmed.

SMITH and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Marjorie Christeson et al., Defendants-Appellants.
    (No. 12028;
    Fourth District
    February 22, 1973.
    Campbell D. McHugh, of Mt. Olive, for appellants.
    No appearance for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The trial court dismissed, without evidentiary hearing, a petition for Post-Conviction relief filed by defendants-appellants Marjorie Christeson and Jack Canady who appeal from the order.

Counsel appointed to prosecute the appeal moved to withdraw as defendants’ counsel and accompanied the motion with a brief in conformity with Anders v. State of California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396. The record shows proof of service of the motion and brief upon the defendants. The motion was continued to afford opportunity to the defendants to file additional suggestions. None were filed. In discharge of our responsibilities we have examined the Record on Appeal.

The defendants were convicted of burglary and theft. A direct appeal ensued, and the convictions were affirmed. (People v. Christeson, 122 Ill.App.2d 192, 258 N.E.2d 142.) Among other issues raised on the direct appeal was the sufficiency of the evidence to sustain the convictions. The Post-Conviction petition contains only two points which defendants maintain entitle them to relief. The first point, is that the State failed to establish defendants’ guilt beyond a reasonable doubt. This issue was presented to and decided by this Court in the direct appeal. That decision is not only res judicata, but it is also clear that a proceeding under the Post-Conviction Act is not for the redetermination of guilt or innocence, and contentions as to the sufficiency of the evidence are not of constitutional magnitude. People v. Vail, 46 Ill.2d 589, 264 N.E.2d 201.

The other point set forth in the petition relates that “new evidence has come into the possession of the defendants, namely a confession in the form of an affidavit exonerating both defendants of having participated in any burglary or having possession of any stolen property, copy of said affidavit having been attached to this Petition and made a part hereof.” The record filed in this Court did not contain the affidavit referred to in the Petition. On our own motion we directed that the record be supplemented to supply the affidavit. In response to that order, the counsel for the defendants on this appeal filed an affidavit which sets forth that he had made a search of the original records in this case in the Circuit Court of Macoupin County and that no affidavit was found in connection with the petition. That he had discussed the matter with the trial judge and that his records indicated that the affidavit referred to in the petition was never produced as an exhibit in the trial court. That counsel had requested of the defendants a copy of the affidavit but never received such a copy or affidavit.

The defendants’ petition for Post-Conviction relief raises no constitutional question and the judgment of the trial court is therefore affirmed.

Judgment affirmed.

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