author: Mr. JUSTICE SCOTT

text:
    Sharon Lynne Stark, Plaintiff-Appellant, v. Robert G. Stark, Defendant-Appellee.
    (No. 72-152;
    Third District —
    July 19, 1973.
    Dusenbury and Lucas, of Kankakee, (Jerry B. Lucas, of counsel,) for appellant.
    Sheldon W. Reagan, of Kankakee, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

The marriage of Robert G. Stark and Sharon Lynne Stark terminated in a divorce on October 8, 1968. The decree of divorce awarded the custody of two minor children, Kim Rae Stark and Rhonda Jean Stark, to their mother, Sharon Lynne Stark. On May 17, 1972, Robert G. Stark, hereinafter referred to as the petitioner, filed a petition to modify the decree by changing custody of the children from the respondent, Sharon Lynne Stark, to himself. In support of his prayer for modification, the petition alleged that the respondent was unfit both physically and temperamentally to have the care, control and custody of the children and that their well being was being neglected. The petitioner subsequently amended his petition to modify by specifically charging the respondent with being a shoplifter and that the minor children aided and abetted her in such conduct. He also charged the respondent with having obtained meals from restaurants without payment for the same and that she instructed the children how to act and react in accomplishing these acts. Lastly the amended petition alleged that the minor child Kim Rae Stark has urological and orthopedic problems which the respondent has ignored medically but instead has used corporal punishment in an effort to correct the condition, the result being the petitioner has been forced to seek medical assistance for the child in order to protect her psychological well being.

After an answer of denial being filed by the respondent a hearing was had without jury, at the conclusion of which the trial court awarded custody of the minor children to the petitioner. This appeal stems from this change of custody order.

The respondent raises several issues; the first which we will consider is that the trial court erred in denying her motion to dismiss the petition to modify the divorce decree at the close of all evidence for failure to prove a change of circumstances affecting the best interests and welfare of the minor children.

In reviewing the record it is apparent that the trial court in making its determination relied on the testimony of the minor child, Kim Rae, who was ten years of age at the time she testified. The testimony of Kim Rae was especially damaging to the respondent in that it indicated a knowledge of and proficiency in stealing on the part of a ten year old child that could only come from having actually participated in such conduct. It further would stretch one’s credulity to believe that such knowledge and proficiency could be attained by a child of such tender years without instruction and coaching from an adult. Without setting forth die testimony of Kim Rae in detail, it is suffice to say that it concerned the theft of cigarettes and umbrellas and how the thefts were accomplished. The witness, but ten years old, identified the scenes of the thefts, indicated a familiarity with the importance of a sales receipt, knowledge of the location of cash registers and the importance of locating an empty aisle so that stolen items could be secreted on her person. There was no uncertainty in the testimony of Kim Rae as to the acts of theft being solicited or ordered on the part of her mother, the respondent. Also her testimony further was to the effect that the respondent frequently stole small articles and left eating establishments without paying the bill.

The testimony of the eight year old, Rhonda Jean, in several instances supported the allegations concerning thefts which were in the petition to modify but the trial court because of the witness’s age declined to consider this testimony and we shall do likewise in this appeal.

The respondent’s testimony contradicted that of her ten year old daughter and in regard to the theft of the umbrellas she stated that they cost $4.00 apiece and that she paid for them with a check. This check, or a photocopy of it, was never presented to substantiate her statement but instead in support of a motion for rehearing she submitted a check in the amount of $5.12.

The respondent strongly urges that the trial court erred in that the testimony adduced at the hearing failed to show a change of circumstances affecting the best interests of the minor children and therefore a change of custody order should not have been entered.

We will subsequently consider the respondent’s contention that the order of the trial court was against the manifest weight of the evidence, but assuming it was not we are at a loss to follow the reasoning of the respondent that a change of circumstances had not ensued from the date of the entry of the decree of divorce. There was no testimony or any scintilla of evidence presented at the time of the divorce of the petitioner and respondent that the respondent had a propensity for thievery. Lacking a charge and proof of such conduct individuals are presumed to be innocent and such was the situation at the time the parties were divorced. The testimony of Kim Rae if believable showed a change of circumstances. This was the reasoning of the trial court and we also subscribe to it.

Was the testimony of Kim Rae believable or is the respondent correct that the custody change order of the trial court was against the manifest weight of the evidence? In making a determination of this issue we must at the outset recognize the rule of law that a child is competent to testify if of average intelligence commensurate with her age and knows what is meant to take an oath and tell the truth. (People v. Watkins, 405 Ill. 454, 91 N.E.2d 406; Ryan v. Ryan, 321 Ill.App. 467, 53 N.E.2d 283.) The questioning of the trial court of the children in the instant case concerning their competency to testify was quite similar to that conducted in the Watkins case which we have cited. The court found that the child Kim Rae was competent to testify and after examining the record we reach the same conclusion.

The mere fact that there has been a change in conditions is not sufficient in itself to warrant modification of provisions of divorce decree dealing with custody of a child unless those changed conditions affect the welfare of the child. (Maupin v. Maupin, 339 IIL.App. 484, 90 N.E.2d 234.) In the instant case there was an abundance of testimony from the minor Kim Rae that her mother was instructing and training her daughters in the skills of thievery. As we have previously stated, there is no indication in the record that such conditions existed when the petitioner and respondent were divorced. The trial court chose to believe the testimony of Kim Rae and therefore could only conclude that a change of conditions had occurred which most seriously affected the welfare of the minor children. The trial court had the first hand opportunity to observe and hear witnesses and was in a superior position to determine the credibility which should be given to the testimony adduced at the hearing In matters concerning custody of infant children, appellate court will not disturb determination of trial judge who has heai'd evidence and has had an opportunity to observe parties unless it appears manifest injustice has been done. (Hahn v. Hahn, 69 Ill.App.2d 302, 216 N.E.2d 229.) We cannot see that the order of the trial court in this instance is unjust and manifestly against the weight of the evidence.

The respondent further contends that the trial court indicated such bias and prejudice against her during the hearing that it was impossible for her to receive a fair hearing. This argument of the respondent is predicated upon the action of the trial court in denying the respondent the custody of the child Kim Rae during the hearing even though she legaUy was still vested with custodial rights. This contention can best be resolved by setting forth the coUoquy that took place between the court and counsel for the respondent:

“The Court; That was til today and it was primary because she testified for one side and I didn’t want her to have to suffer the embarrassment if not any worse of going back to the other side. Counsel for Respondent: I think that is sound discretion, right. WeU if you want to leave the custody the way it is for now Judge and not make any determination about it I don’t have any objection to continuing this thing to another date so that we can have the time to bring all the witnesses before the court.”

When this discussion ensued Kim Rae, pursuant to agreement between the parties, was in the physical custody of the petitioner since he was making arrangements for the child to receive needed orthopedic surgery. The colloquy between the court and counsel for the respondent belies the argument that the trial court was biased or prejudiced and it further shows that her counsel did not feel that his client was being prejudiced.

For the reasons set forth we hereby affirm the judgment of the trial court which changed the custody .of Kim Rae Stark and Rhonda Jean Stark from the respondent, Sharon Lynne Stark, to the petitioner, Robert G. Stark.

Affirmed.

ALLOY, P. J., and DIXON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Clark, Defendant-Appellant.
    (No. 72-199;
    Third District —
    July 20, 1973.
    James Geis, Deputy Defender, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

The defendant, James Clark, was indicted by the Grand Jury of Rock Island County for the crime of armed robbery against two separate victims. Following plea negotiations he entered a plea of guilty to both counts of the indictment and was sentenced to two concurrent terms of not less than six nor more than eight years in the penitentiary. In this appeal he contends that the trial court failed to determine if a plea of guilty was voluntary and that there was a factual basis for it as required by Supreme Court Rule 402.

We first direct our attention to the defendant’s contention that the trial court failed to determine whether or not there was a factual basis for his plea of guilty.

Chapter 110A, section 402(c) provides:

“The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.”

. The only discussion in the record which could possibly resemble any effort to make a determination of the factual basis of the defendant’s pleas of guilty is as follows:

“BY THE COURT: All right. It is your desire to plead guilty to this charge. You understand that you are charged with the offense of armed robbery. Two counts. That is two persons were involved. You were charged in each count with robbery of one of those persons. You understand that the offense of armed robbery involves taking of property from another with the use of force or in the use of force with a dangerous weapon, you understand that?
DEFENDANT: Yes.
# # #
BY THE COURT: Now I want you to know also at the same time they presented to me your record of arrests and convictions and they have been discussing this matter with me. The court indicated to Mr. Denger and I will indicate to you now and Mr. Braud if you persist in that plea the recommendation will be accepted by the court, but aside from that Mr. Clark, are you entering this plea of guilty because you are guilty of the offense charged?
DEFENDANT: Yes.
BY THE COURT: I ask you that because I am not going to accept a plea of guilty if you are entering such a plea merely to dispose of the case or to terminate it in view of this substantial sentence recommended, so you are entering a plea of guilty because you are guilty?
DEFENDANT: Yes.”

It is impossible for us to distinguish this discussion from the one that occurred in People v. Dye, 7 Ill.App.3d 805, 288 N.E.2d 537, which was as follows:

“COURT: Before I accept your plea of guilty, I want to advise you that this offense carries with it tire possibility of a sentence from one to ten years in the penitentiary. Knowing that, do you still say that you are guilty as charged in the indictment? (Emphasis added).
DEFENDANT: Yes."

In Dye the reviewing court stated:

“The defendant’s response to the question amounts to nothing more than a statement of a legal conclusion that he is guilty of the crime, or a reaffirmation that he wishes to plead guilty. An examination of the record fails to reveal when and where the alleged theft occurred, and what was allegedly taken. Consequently, the record also fails to show any connection between acts committed by the defendant and the acts and intent required to constitute the offense of theft. People v. Hudson, [7 Ill.App.3d 800, 288 N.E.2d 533 (1972)]. There is no basis whatsoever for reasonably concluding that there is a factual basis for the plea of guilty.” People v. Dye, 7 Ill.App.3d 805, 288 N.E.2d 537.

As we did in People v. Walraven (1973), 11 Ill.App.3d 1085, 297 N.E.2d 198, we subscribe to the language used and the conclusion reached in the Dye case, for the same situation prevails in this case in that the record fails to show any connection between the acts committed by the defendant and the acts and intent required to constitute the offenses of armed robbery.

In this appeal the defendant also contends that the trial court failed to determine if his pleas of guilty were voluntary, pursuant to tire requirement of Supreme Court Rule 402(b) (Ill. Rev. Stat., ch. 110A, sec. 402(b)). However, having determined that it is necessary that this case be remanded for the purpose of permitting the defendant to plead anew, it is not necessary for us to consider this contention, for any error, if any, concerning the voluntariness of defendant’s plea is not likely to again occur.

For the reasons stated the judgments of the trial court finding the defendant guilty of the crime of armed robbery against two separate victims are reversed and this case is remanded to the Circuit Court of Rock Island County with directions that the defendant be allowed to plead anew.

Reversed and remanded with directions.

ALLOY, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert J. McKemie, Defendant-Appellant.
    (No. 72-261;
    Third District —
    July 20, 1973.
    James Geis, Deputy Defender, of Ottawa, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Robert J. McKemie was sentenced, pursuant to his plea of guilty to the crime of burglary, to a term of not less than 2 years nor more than 5 years in the Illinois Department of Corrections by the Circuit Court of Kankakee County.

On appeal to this court, defendant Robert J. McKemie contends that the minimum term of his sentence should be reduced in accordance with the Illinois Unified Code of Corrections. It has been noted that the provisions of the Illinois Unified Code of Corrections is in fact applicable to cases on appeal if the sentences under the new act are less than under the prior law pursuant to which prosecution was commenced, (Ill. Rev. Stat, 1972 Supp., ch. 38, §1008 — 2—4.) See also: People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.)

Burglary is now classified as a Class 2 felony and the Illinois Unified Code of Corrections provides that a minimum term of the sentence for a Class 2 felony shaU not be greater than one-third of the maximum term actually imposed. (Ill. Rev. Stat, 1972 Supp., ch. 38, § 19 — 1(b) and § 1005 — 8—1(c) (3)). The minimum term of 2 years is in excess of one third of the maximum term of 5 years in the present cause. We have previously indicated in People v. Kovacivich, 10 Ill.App. 797, 295 N.E.2d 33, that where a sentence fails to meet the 1 to 3 ratio required by the Code of Corrections for a Class 2 felony, the minimum sentence should be reduced.

The minimum sentence of defendant Robert J. McKemie should, therefore, be reduced to a term of one year and eight months. We have examined the record and find no other reversible error, nor does defendant contend that there is any such error. Accordingly, we hereby affirm the conviction of Robert J. McKemie in this cause, but modify his sentence to an indeterminate term of not less than one year and eight months, which is fixed as the minimum duration of imprisonment, and not more than five years, which is fixed as the maximum duration of imprisonment or until defendant is discharged in due course of law.

Affirmed as modified.

DIXON and SCOTT, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Lee Davis, Defendant-Appellant.
    (No. 72-48;
    Fifth District —
    July 12, 1973.
    Robert E. FarreU, of Defender Project, of Mount Vernon, (Edith L. James, of counsel,) for appeUant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, (Paul J. O’NeiU, Senior Law Student, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Glen Mordis, Defendant-Appellant.
    (No. 72-274;
    Fifth District —
    July 12, 1973.
    John J. Hoban, of Belleville, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, (James J. Jerz and Edward N. Morris, of Model District State’s Attorney’s Office, of counsel,) for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Agrico Chemical Company, Petitioner-Appellant, v. The Illinois Pollution Control Board et al., Respondents-Appellees.
    (No. 72-14;
    Fifth District —
    July 18, 1973.

      Albert E. Schoenbeck, of Schoenbeck & Latourette, of St. Louis, Missouri, and Pope & Driemeyer, of East St. Louis, for appellant.
    William J. Scott, Attorney General, of Springfield, (Thomas J. Immel and Frederick C. Hopper, Assistant Attorneys General, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Petitioner appeals from an order of the Pollution Control Board (Board) entered December 21, 1971.

Petitioner Agrico Chemical Company (Agrico) filed a petition for a variance under the provisions of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, secs. 1001 et seq., more particularly secs. 1037 and 1038) on July 22, 1971. On August 23, 1971 Agrico was notified by a hearing officer for the Board that hearing was set for September 23, 1971. On September 21 the hearing officer called Agrico and postponed the hearing with Agrico’s consent. On October 4, 1971 the Environmental Protection Agency (Agency) filed a motion to dismiss Agrico’s petition without prejudice. On October 13, 1971 Agrico requested that the hearing be rescheduled. On October 17, 1971 the hearing officer rescheduled the postponed hearing for November 17, 1971 on which date the hearing was held.

At the commencement of the hearing, the Agency recommended to the Board that Agrico’s petition be denied, and gave this recommendation to Agrico for the first time. The testimony at the hearing, presented only by Agrico, indicated that Agrico had for some time been attempting to comply with various Board rules and regulations, but had been tardy in installing control equipment which it had previously agreed to buy and utilize. Agrico contended that they needed some time to get the equipment installed and operating at top efficiency.

The Board entered its order on December 21, 1971 granting Agrico the requested variance conditioned upon: (1) Agrico’s diligently pursuing its control installation; (2) posting a $100,000 performance bond and filing progress reports on specified dates; and (3) Agrico’s paying a $10,000 penalty for its previous delays in implementing its control program.

Agrico contends that: (1) the Board does not have power to impose a monetary penalty as a condition to the granting of a variance; (2) the Board does not have power to require petitioner to post a performance bond and file progress reports as a condition to the granting of a variance; (3) Agrico was denied due process because of the Board’s failure “to take final action upon” Agrico’s variance request “within 90 days after the filing of the petition” as required by Section 1038 of the Act; and (4) Agrico was denied due process by the failure of the Agency to promptly investigate Agrico’s petition and make a recommendation to the Board as to the disposition of the petition as required by Section 1037 of the Act and by the failure of the Agency to make such recommendation “within 21 days after the filing of the petition” and “save a copy of its recommendation on the petitioner” as required by Rule 403 of the Rules and Regulations of the Board. We will consider these issues separately.

The first issue is whether the Pollution Control Board has statutory authority to impose a penalty as a condition to granting a variance. This issue has been decided three times since the order in the instant case was handed down in December 1971. In Citizens Utilities Co. v. Pollution Control Board, 9 Ill.App.3d 158, 289 N.E.2d 642, Justice Seidenfeld observed that variance proceedings were governed by Title IX of the Act whereas penalties were imposed under enforcement proceedings pursuant to Title VII and held that:

“° * * the legislative reference in Section 37, which governs variances, to the procedure sections of the Act (Title VII, sections 32, 33(a) supra), excluding any reference to enforcement orders and penalties, indicates a specific intent to exclude penalties as a part of the conditions of the grant of a variance.
# # #
In light of section 37’s non-reference to section 33(b) in variance proceedings, and the Board’s ability to pursue enforcement procedures, the general language in sections 33(a) and 36(a) relied on by the Board should not be read to authorize the imposition of penalties in variance proceedings. If the legislature had intended to allow the imposition of penalties in variance proceedings, we believe it would have used language that plainly expressed such a purpose, as it did for enforcement proceedings. Statutory authority to impose penalties generally should not be created by construction, but only by clear and explicit enactment. Acme Fireworks Corp. v. Bibb (1955), 6 Ill.2d 112, 119-120; Cedar Park Cemetery Ass’n v. Cooper (1951), 408 Ill. 79, 83; Mallinckrodt Chem. Works v. Belleville Glass Co. (1889), 34 Ill.App. 404, 412.
We conclude that a fair construction of the statute in question precludes the Board from imposing a monetary penalty as a condition to the grant of a variance.” 289 N.E.2d at 647-48.

In Molex, Inc. v. Pollution Control Board, 9 Ill.App.3d 1032, 293 N.E.2d 731 (1st Dist. 1973), the court also faced the issue of whether the Board could impose a penalty of $10,000 for past delays. Justice Goldberg quoted much of the cited opinion from the Citizens Utilities case and added:

“We are of the opinion that a careful reading of the enforcement provisions (Title VIII) and the variance provisions (Title IX) clearly indicates that the legislature intended the hearings for a variance under section 37 of the Act shall be held under the rules prescribed in sections 32 and 33(a). We believe that the legislature intentionally omitted the provisions of section 33(b) from applying to a variance hearing under section 37; and, therefore, under a strict interpretation of the Act the Board does not have the power to impose a penalty as a condition to granting a variance under the Environmental Protection Act.” 293 N.E.2d at 732.

Citizens Utilities was also followed in City of Mattoon v. Environmental Protection Agency, 11 Ill.App.3d 259, 296 N.E.2d 383 (4th Dist, 1973), which case reached the same holding as Citizens Utilities and Molex. We agree with and follow the analysis and holdings of these three cases. Therefore the condition that Agrico pay a $10,000 penalty must be stricken from the order.

The second issue is whether the Board has statutory authority to require petitioner to post a security bond and file progress reports as a condition to the granting of a variance. We have concluded that the statute does not give the Board authority to impose a monetary penalty as a condition to the granting of a variance because the legislature omitted the penalty provisions from the title of the Act governing variances. However, the situation concerning the posting of a performance bond and filing progress reports is different. Section 1036 (under Title IX: Variances) states in pertinent part:

“(a) In granting a variance the Board may impose such conditions as the policies of this Act may require. If the hardship complained of consists solely of the need for a reasonable delay in which to correct a violation of this Act or of the Board regulations, the Board shall condition the grant of such variance upon the posting of sufficient performance bond or other security to assure the correction of such violation within the time prescribed.
(b) Any variance granted pursuant to the provisions of this section shall be granted * * * upon the condition that the person who receives such variance shall make such periodic progress reports as the Board shall specify, ” * *” Ill. Rev. Stat. 1971, ch. 111½, sec. 1036. (Emphasis added.)

Thus the reasons for concluding that the Board lacks authority to impose monetary penalties as a condition to the granting of a variance are not applicable to the issue of Board authority to require the posting of performance bond and requiring the filing of progress reports. In the latter situation, specific statutory authority exists, and the Board has the power to require such a bond and progress reports. No issue was raised as to whether the amount of the bond was reasonable, but only whether the Board had authority to require the bond. While in some instances a bond may be so large as to be unreasonable, we need not determine that issue in this case.

The third issue concerns the 90-day rule. Section 1038 of the Act provides in part:

“If the Board fails to take final action upon a variance request within 90 days after the filing of the petition, the petitioner may deem the request granted under this Act.”

In the present case the final order was filed 152 days after the filing of the petition on July 22, 1971. However, the record shows that on September 21 Agrico waived application of this 90-day rule. The verbal waiver was confirmed by letter dated September 23, 1971. Section 1038 ■ is clearly designated to deal with the problem of bureaucratic procrasination. In this case the petitioner has waived the benefit of this rule. We hold that under these facts the 90-day rulé is inapplicable and does not affect the validity of the Pollution Control Board’s order.

The fourth issue involves the 21-day rule. Section 1037 of the Act requires the Agency to “promptly investigate” a petition for variance “and make a recommendation to the Board as to the disposition of the petition.” Among the Procedural Rules promulgated by the Board, Rule 403(a) provides in part:

“After investigating the variance petition and considering the views of person who might be adversely affected by the grant of the variance, the Agency shall within 21 days after the filing of the petition make a recommendation to the Board as to the disposition of the petition.”

Rules 403(b) and 305(b) require the Agency to serve a copy of its recommendation on the petitioner by personal service or by registered or credited mail with proof of sendee by affidavit or mail receipt filed with the Board.

In the instant case Agrico filed its petition on July 22, and the Agency’s recommendation was not made until November 17, the day of the hearing. However no objection to the Board’s failure to observe the 21-day rule was made by Agrico. in the proceedings below. In fact, Agrico filed a motion to amend its petition for variance on October 17, 1971. Under these circumstances the failure of the Board to comply with the 21-day rule has been waived by Agrico.

That portion of the Illinois Pollution Board’s order assessing a $10,000 penalty against Agrico is reversed. In all other respects the order below is affirmed.

Affirmed in part and reversed in part.

CREBS and JONES, JJ„ concur.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    Paul E. Hamer et al., Plaintiffs-Appellants, v. George E. Mahin, Director of the Department of Revenue, et al., Defendants-Appellees.
    (No. 72-24;
    Second District —
    July 20, 1973.
    Paul E. Hamer, of Northbrook, for appellants.

      William J. Scott, Attorney General, of Chicago, (Warren K. Smoot, Assistant Attorney General, of counsel,) for appellees.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiffs appeal from the granting of summary judgment to defendants. Plaintiffs’ seven-count amended complaint alleged, in essence, that defendants had in the assessment and equalization of property subject to taxation, violated certain provisions of the Illinois Revenue Act, Ill. Rev. Stat. 1967, ch. 120, sec. 482 et seq., and the state and federal constitutions; they requested appropriate relief for the years 1967 through 1971.

Plaintiffs have been contesting alleged non-uniform and unequal taxation practices in administration of the Revenue Act for several years. Dismissal of an earlier complaint against the Department of Revenue and Lake County Board of Review was affirmed by the Supreme Court on the ground that granting relief would cause chaos, the complaint lacked specificity and failed to show a basis of damage. People ex rel. Hamer v. Jones, 39 Ill.2d 360 (1968).

On September 24, 1968, plaintiffs individually brought a hew action against the Director of Revenue by filing a three count complaint. (The first count sought a declaratory judgment, and recited, in relevant part, that: plaintiffs were the owners of real property in Lake County, that various real property in the county was assessed and equalized at different per centums less than full fair cash value, that residential real property in Lake County was assessed at approximately fifty percent of its actual value. The count also set out the duties of the defendant and the percentages at which various types of personal property were assessed and equalized. The second count, realleging the factual basis of the first, sought relief by way of mandatory injunction, and the third count requested issuance of a writ of mandamus.) Defendant filed a motion to dismiss for failure to state a cause of action on which relief could be granted. The court, noting that plaintiffs had been petitioners in People ex rel. Hamer v. Jones, supra, found that the new complaint was sufficient under the opinion in the earlier case, but dismissed the action on the ground that, by the Jones decision, the Supreme Court had retained in itself the right to determine when the judiciary would no longer defer to legislative action in revenue matters. On appeal, this action was reversed, the Supreme Court holding that it had not “intended to retain to itself alone the power to determine when, and to what extent, compliance with the constitutional command of uniformity is to be required.” Hamer v. Mahin, 47 Ill.2d 252, 254 (1970).

The remanded cause was redocketed in the trial court in February of 1971, and on April 26, plaintiffs filed a seven count amended complaint. As amended, the complaint was brought as a class action on behalf of plaintiffs and all other citizens, residents, taxpayers, and property owners in the State of Illinois, in addition to the Director of Revenue it named the Director of the Department of Local Government Affairs as a defendant, and was directed against defendants both individuaUy and as representatives of all assessment officials of the state. The present appeal is taken from the summary judgment eventually entered against plaintiffs on this amended complaint.

Count I, seeking a declaratory judgment, detailed the various duties of defendant Director of the Department of Local Government Affairs with regard to both locaUy assessed property and that originally assessed by the Department; asserts that various real property is assessed at different percentums less than that used for residential purposes; that residential realty is assessed less than its fuU fair cash value, i.e., at fifty percent of its value rather than one hundred percent as required by statute; avers that plaintiffs had filed written complaints before the Lake County Board of Review for the years 1956 and 1966 through 1970, requesting that aff property be assessed or equalized to its full fair cash value, and had for the years 1965 to 1970 petitioned defendants to supervise assessment of all property in the State to full fair cash value; alleges that assessment and equalization of property in the manner described had resulted in intentional discrimination between individuals and corporations and between properties within a particular class in violation of the fourteenth amendment of the federal constitution as well as art. II, sec. 2 and art. IX, sec. 1 of the Illinois Constitution of 1870; claims that plaintiffs are aggrieved by the assessment and equalization at less than full fair cash value which results in unequal and illegal taxes; states that this unlawful conduct is taking place within each county of the State; that litigation by each taxpayer or taxbody would result in multiplicity of suits; that a speedy judicial determination is essential to the public interest; that there is no adequate remedy at law. The prayer is for a declaration that all taxable property in the state be assessed (for 1971 tax purposes) at full fair cash value as defined by statute, that defendant be directed to instruct all tax assessment officials of their constitutional and statutory duties; that defendant comply with the applicable statutes as of January 1, 1971; that the court retain jurisdiction to enforce its order; and that plaintiffs receive costs and attorneys’ fees.

Count II realleges the paragraphs of the first count, and adds that the deliberate assessment below full fair cash value and in an unequal manner perpetrates a fraud on the taxpayers. It prays for an injunction enjoining assessments at less than full fair cash value, and ordering defendants to assess and equalize at 100% of value beginning January 1, 1971.

Count III again realleges Count I. It adds that the Department has the annual duty of reviewing reports of the local boards of review or boards of appeal and of adding sufficient to the aggregate assessments percentages to bring them to full fair cash value; that the Department of Local Government Affairs is required to reconsider estimates of full fair cash value when petitioned by a taxpayer; that defendant Lehnhausen has the statutory duty to direct the equalization and assessment of all property to full fair cash value and that he has refused to do so. It requests issuance of a writ of mandamus commanding defendant Lehnhausen to direct the assessment and equalization of all property at its full value for the 1970 tax year.

Count IV is brought by petitioner in a representative capacity seeking double damages under the provisions of Ill. Rev. Stat. 1969, ch. 120, sec. 804.

Count V states that for the tax years 1967 through 1970, defendants or their predecessors had the duty of assessing or equalizing all property in the state at full fair cash value, but assessed or equalized at less than this amount; that a different per centum of full fair cash value was employed for commercial and industrial property than was used for residential property; that the Revenue Act requires all property be assessed at its fair cash value, and the 1970 state constitution requires all property within á class be assessed uniformly; that the Director of Revenue has had the duty of reassessing improperly assessed commercial and industrial property for the years 1967 through 1970; that local boards of review or appeal have the duty of correcting any such errors in assessments ; that the Director of the Department of Local Government Affairs has the duty of assessing or equalizing all property in the state to its fair cash value, and that defendants have failed in their aforesaid duties. Plaintiffs then request a writ of mandamus to compel correction of commercial and industrial property assessments by employing the same percentile level applied to single family residences for the years 1967 through 1970.

Count VI recites the duties of defendants regarding original assessment and equalization of assessments to full fair cash value; states that various property under their jurisdiction has been assessed and equalized at per centums of full fair cash value different than that of property used for residential purposes; that since 1967 residential real property in Lake County has been assessed at 55% of full fair cash value; that the equalization factor and multiplier issued to Lake County indicates a finding that the approximate assessment level throughout the State is 50% of full value; that within Lake County personal property of residential property owners is generally assessed at 3% of value while motor vehicles are assessed at 30%; that plaintiffs’ property is assessed in conformity with the given figures; that various corporate assets are assessed at figures ranging from 4% to 100%; that defendant has failed to fulfill its duty of assessing and equalizing taxable property to its full fair cash value; that valuation of taxable property at varying per centums less than full fair cash value is intentional .discrimination between individuals and corporations and between property within a particular class; that plaintiffs are injured by alleged under-assessment and resulting unequal and illegal taxes; that there is no adequate remedy at law; that the issues presented prevail throughout the state; that the class action is..necessary to avoid multiplicity of suits, and that a speedy judicial determination is necessary in the public interest. Plaintiffs pray for a declaratory judgment that the Revenue Act and the State and Federal Constitutions require assessment of all taxable property for the 1967 to 1970 tax years at full fair cash value, and for other appropriate relief.

Count VII realleges the paragraphs of the previous count, and requests a mandatory injunction directing defendants to assess and equalize all property in the state at full fair market, or the same percentum of full fair value for the tax years 1967 through 1970.

While their complaint was pending, plaintiffs made a motion for summary judgment. On June 3, 1971, defendants filed a like motion, unsupported by affidavits. The stated grounds of defendant’s motion were that granting plaintiffs relief for the years in which tax collection was in process or completed would cause chaos in administration of the tax laws, further that adjudication of the issues respecting the 1971 tax year should be postponed because legislative action was anticipated in amending the property tax "laws to permit assessment at 50% of full value, and that the complaint should be dismissed in toto if such action took place.

During the July 7, 1971, hearing on the motions for summary judgment both parties argued. In the course of argument it was related that the General Assembly had.passed House Bill 556 which would allow assessments of property at fifty percent of full fair cash value. The court’s oral comments indicated that it did not believe it was a proper time for judicial determination of the case in view of the new Illinois Constitution and pending House Bill 556, and that it was prone to dismiss on that basis. The hearing ended with the court continuing the matter generally to await final signing of the amendatory act in question.

Thereafter, the house bill was signed into law, becoming sec. 1 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, sec. 482) applicable to assess-merits made in 1971 and thereafter. The section is a definitional one, and subsection (24) thereof provides, “Except in counties with a population of more than 200,000 which classify real property for purposes of taxation, the term ‘fair cash value’ s * * means 50% of the actual value of real and personal property.”

On October 15, 1971, plaintiffs filed a motion for leave to file a supplemental complaint and to name the Lake County Board of Review as an additional defendant. In support of the motion, plaintiffs cited matters which arose after filing of the pleadings, including the effective date of the 1970 Illinois Constitution and the passing into law of House Bill 556. The tendered complaint contained an attack on the constitutionality of both the amendment to the Revenue Act and certain provisions of the 1970 Constitution. Plaintiffs’ motion was denied on October 29, 1971.

Thereafter, on November 5, 1971, the court filed the order from which the present appeal is taken. In relevant part, the order stated that under People ex rel. Hamer v. Jones, supra, legislative action was necessary to correct problems of the property tax, but that the judiciary would not abdicate its responsibility if the legislature failed to act; that Hamer v. Mahin, supra, indicated that the Supreme Court did not retain sole power to determine when and to what extent uniformity in taxation is to be required; that the amended complaint in the present cause complies with the requirements of the prior opinions; that, because of the adoption of the new constitution and House Bill 556, the requirements of legislative action under Jones is satisfied, and “it is not the time for the judiciary to correct the inequities of which plaintiffs complain;” that “there is no genuine issue as to any material fact and * * * defendant is entitled to a Summary Judgment as a matter of law.”

Plaintiffs raise several contentions on appeal.

We consider first the propriety of the refusal by the trial court to allow plaintiffs to file their supplemental complaint and join an additional party.

The Civil Practice Act provides that supplemental pleadings may be allowed by leave of court in order to allege matters which arise after the original pleadings have been filed. (Ill. Rev. Stat., 1971, ch. 110, sec. 39.) In the present case, both the effective date of the new state constitution and the passing of House Bill 556 occurred after filing of the amended complaint; the tendered supplemental complaint set forth that fact and contested the constitutionality of both. It is well settled that the provisions of the Practice Act should be liberally construed to achieve speedy and final determinations of controversies. Ill. Rev. Stat. 1971, ch. 110, sec. 4; Skolnick v. Martin, 32 Ill.2d 55, 59 (1964), cert. den., 381 U.S. 926 (1965); Rank v. Rank, 107 Ill.App.2d 339, 342 (1969).

Generally whether to allow an amendment to pleadings (including supplemental pleadings, see: Kovac v. Kovac, 26 Ill.App.2d 29, 48 (1960)) is a discretionary matter for the trial judge; the exercise of that discretion, however, is to be tested by whether the ends of justice are furthered. (Bowman v. County of Lake, 29 Ill.2d 268, 281 (1963), appeal dismissed, 382 U.S. 13 (1965); Ennis v. Illinois State Bank of Quincy, 111 Ill.App.2d 71, 76 (1969); Lahman v. Gould, 82 Ill.App.2d 220, 227 (1967), appeal dismissed, 390 U.S. 458 (1968).) Here, the trial court, to facilitate fuH adjudication of the issues, should have applied the liberality intended under the Civil Practice Act and aUowed plaintiffs to file their supplemental pleadings. By refusing, the court prevented plaintiffs from having their day in court to test the validity of the very enactments upon which the final order relied. Refusal to allow the additional pleadings did not promote the ends of justice.

The CivH Practice Act provision for the nonjoinder or misjoinder of parties states that no action shall be dismissed for nonjoinder “without first affording reasonable opportunity to add them as parties.” (Ill. Rev. Stat. 1971, ch. 110, sec. 26.) This section has been interpreted as granting a trial court broad discretion in adding new parties. (Pearce v. Desper, 11 Ill.2d 569, 578 (1957).) The defendants consistently argued that, if illegal assessment had occurred, local officials rather than the named defendants were responsible, and that the named defendants could not interfere with local assessments. Under these circumstances, joinder was necessary for a fuH determination of issues before the court. Considering the rule that the Practice Act is to be liberaUy construed, together with the fact that the case was still in the pleading stage, we find it was an abuse of discretion to deny plaintiffs leave to join the Board of Review as a defendant in the instant case.

We next consider the entry of the summary judgment in favor of defendants. The Civil Practice Act provides that a summary judgment shaH be rendered if it is shown that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” (Ill. Rev. Stat. 1971, ch. 110, sec. 57(3); Fooden v. Board of Governors, 48 Ill.2d 580, 586 (1971).) The order in the instant case recites such a finding.

We have examined the amended complaint and conclude that certain of the various counts set out general conclusions of law or fact but that others contain factual matters presenting triable issues. IUustrative of the latter are statements of fact that different per centums of fuH fair cash value are employed in assessing different property, and that the Director of the Department of Local Government Affairs, in making original assessments of certain property, does so at different per centums less than full fair cash value and at per centrums less than those used in assessing residential property. The trial court seems to have believed that the definition of fair cash value in House Bill 556 (as fifty percent of actual value) answered, as a matter of law, all issues raised in plaintiffs’ complaint. However, the complaint alleged not only that various property is assessed and equalized at less than one hundred percent of full value, but that property was assessed and equalized at differing per centums of full fair cash value in a deliberate, discriminatory manner. This contention remains at issue whether fair cash value be defined as one hundred percent or fifty percent of full value.

For the reasons given, plaintiffs should have been permitted to file their supplemental complaint and to join the Lake County Board of Review as a defendant, and, since the pleadings presented triable issues of fact, defendants should not have been granted summary judgment.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    Daniel Sperry et al., Plaintiffs-Appellants, v. Robert Punke et al., Defendants-Appellees.
    (No. 12063;
    Fourth District —
    July 19, 1973.
    William A. Allison, of Bloomington, for appellants.

      Markowitz, Lawrence, Lenz, Jennings & Naylor, of Bloomington, for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal from the Circuit Court of McLean County. Plaintiffs-appellants Daniel Sperry and Mildred Sperry sought damages from defendants-appellees Robert Punke and Ace Liquors, Inc., during oral argument plaintiffs abandoned their appeal as to Ace Liquors, Inc. The basis for plaintiffs’ claim was their contention that defendant had, by excavation, removed lateral support from a lot owned by them. A detailed recital of the testimony would have no precedential value and we affirm the judgment of the trial judge, who heard the case without a jury, under Supreme Court Rule 23.

Plaintiffs’ principal contention is that the trial judge refused to admit testimony as to the cost of building a retaining wall. This ruling was correct. Damages for removal of lateral support is the diminution of the value of the lot. (Schroeder v. City of Joliet, 189 Ill. 48, 59 N.E. 550; Kane v. City of Chicago, 392 Ill. 172, 177, 64 N.E.2d 506.) There was no evidence as to diminution of the value of plaintiffs’ lot and consequently no basis upon which a judgment for damages could have been predicated. We have examined the record and find no error in the refusal of the trial judge to grant plaintiffs’ motion for continuance made during the course of the trial. Plaintiffs sought punitive damages and assign as error the trial judge’s refusal to admit evidence concerning defendants’ personal wealth. There being no evidence of actual damage the ruling was correct quite apart from the question of the sufficiency of the evidence to establish willful and wanton conduct on the part of defendants.

Judgment affirmed.

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


author: Mr. JUSTICE SIMKINS.

text:
    Ronald Doran, Plaintiff-Appellant, v. Mercantile Trust and Savings Bank, Defendant-Appellee. Mercantile Trust and Savings Bank, Third-Party Plaintiff, v. Linda Doran et al., Third-Party Defendants-Appellees.
    (No. 12102;
    Fourth District —
    July 19, 1973.
    Lewis, Blickhan, Garrison & Tucker, of Quincy, for appellant.
    John T. Robertson, of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, for appellee.
    Pollock, Ennis, O’Connell & Cashman, of Quincy, for third-party appellees.
   Opinion by

Mr. JUSTICE SIMKINS.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Franklin Null, Defendant-Appellant.
    (No. 11602;
    Fourth District —
    July 25, 1973.

      John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Defender, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of forgery upon his plea of guilty. Sentence of five to ten years was imposed. Defendant’s petition for post-conviction was dismissed by the trial court without an evidentiary hearing. Defendant appeals.

It is alleged that the trial court failed to advise defendant of his right to have counsel appointed prior to and at the time of taking the plea. Such allegation is completely contradicted by the record which shows that upon arraignment defendant wás asked whether he had an attorney and whether or not he wished to have an attorney appointed. Such inquiry was again made at the time of the taking of the plea, and in a colloquy concerning a petition for probation defendant was asked whether he wished an attorney for such hearing, and again whether he wished to have an attorney appointed. To each inquiry defendant replied that he did not wish an attorney appointed. Since the record is clear that the allegation is specious, an evidentiary hearing is riot required. People v. Brown, 41 Ill.2d 230, 242 N.E.2d 242.

The allegation that defendant, by reason of physical and mental condition, was unable to understand the admonitions concerning the right to counsel is but a conclusion without allegations of fact. (People v. Williams, 52 Ill.2d 466, 288 N.E.2d 353.) The record of defendant’s statements in open court again contradict the allegation. The hearings at issue were held over a span of several days. Nothing in the record suggests that defendant was under any disability and no facts are alleged in the petition which suggest that the court might doubt defendant’s competency. (People v. Brown, 41 Ill.2d 230, 242 N.E.2d 242.) Defendant, in fact, pointed out to the court that while being held in jail, he had served as a trusty.

The allegation. of a good defense to the charge is waived by the plea of guilty. People v. Jackson, 47 Ill.2d 344, 265 N.E.2d 622.

Rehearing having been granted, we further consider the question whether upon an appeal from an order denying post-conviction relief, the sentence may be modified pursuant to the Unified Code of Corrections effective January 1, 1973.

In People v, Chupich, 53 Ill.2d 572, 295 N.E.2d 1, the court examined the language of such Code, Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1008 — 2—4:

“If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.”,

and determined that the penalties provided were applicable for the reason that cases pending on direct appeal upon the effective date of the statute were not finally adjudicated within the meaning of such statute. People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.

Defendant argues that Ill. Rev. Stat. 1971, ch. 38, par. 122 — 6, providing for post-conviction hearing, confers the power to reduce sentence in the language:

“If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as. to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.”

In People v. Ballinger, 53 Ill.2d 388, 292 N.E.2d 400, the court stated that a sentence within the statutory limit, but asserted to be excessive, was subject to review on direct appeal but was not cognizable in post-conviction proceedings. Such opinion suffices to undo defendant’s argument that People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239, stated an implicit recognition of the power of the reviewing court to reduce sentence in post-conviction proceedings.

It is urged that it is a denial of equal protection to modify a sentence pursuant to the Code where a direct appeal pends, as in Chupich, but to deny such procedure in post-conviction. The statute concerning post-conviction provides a proceeding civil in nature in which petitioner has the burden of proof. (People v. Harper, 43 Ill.2d 368, 253 N.E.2d 451.) It is a new proceeding which inquires into constitutional issues not already adjudicated. (People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455.) Paragraph 122 — 1 requires that the petition be filed within 20 years after final adjudication. It is thus a form of collateral attack upon a final judgment. See Fontaine v. United States, (U.S.), 36 L.Ed.2d 169, (93 Sup.Ct.). The state had a legitimate interest in seeking a finality of judgment and the distinction between direct appeals, and appeals from a collateral attack upon the .conviction is not unreasonable and arbitrary. People v. Spears, 50 Ill.2d 14, 276 N.E.2d 322.

Defendant argues that the petition alleges that the sentence imposed was unduly harsh and not proportionate to the offense committed, and that such allegation raises a constitutional issue under art. I, par. 11 of the Illinois Constitution of 1970, and the penalties provided in the Unified Code of Corrections effective January 1, 1973.

The statutory description and requirements make clear that post-conviction relief is to be granted only as to matters effecting a denial of constitutional interests in the matter of the original conviction. Chapter 38, par, 122 — 1, provides for a petition by one:

“[W]ho asserts that in the proceedings which, respited in his conviction there was a substantial denial of his rights under the Constitution of the United States or the State of Illinois or both * * V

Par. 122 — 2 provides that the petition shall:

“[Cjlearly set forth the respects in which petitioner’s constitutional rights were violated.”,

and the record or other evidence supporting such allegations. Relief under the post-conviction statute is clearly limited to constitutional issues arising in the proceedings which result in conviction.

The judgment is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People ex rel. Samuel Lee Tolley, Petitioner-Appellant, v. John J. Twomey, Warden, Respondent-Appellee. The People of the State of Illinois, Plaintiff-Appellee, v. Samuel Lee Tolley, Defendant-Appellant.
    (Nos. 11718, 11973 cons.;
    Fourth District —
    July 25, 1973.

      Phillips, Phebus, Tummelson & Bryan, of Urbana, (Joseph W. Phebus, of counsel,) for appellant in 11718.
    John F. McNichols, District Defender, of Springfield, (J. Daniel Stewart, Assistant Defender, of counsel,) for appellant in 11973.
    Frank W. Lincoln, State’s Attorney, of Tuscola, for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant was found guilty in a ■ jury trial of aggravated battery, aggravated assault, criminal damage to property and resisting arrest arising out of an incident occurring when the defendant entered an apartment building to try to see his children. Before sentencing, he escaped from the county jail and information was filed against him for such escape. The cases were consolidated for combined hearing on aggravation and mitigation and the court imposed a one to five year sentence for aggravated battery on Pat Pygott; three months for criminal damage to property; three months for another charge of criminal damage to property; one year for aggravated assault on Lucille Hoffman; one year for resisting arrest and a one year consecutive sentence for escape. The defendant pleaded guilty to the information charging escape and was not advised that a consequence of such a plea might result in a consecutive sentence. Under Rule 402(a) (Ill. Rev. Stat. 1971, ch. 11QA, par. 402(a)), a court is not permitted to accept a plea of guilty without informing the defendant of the maximum and minimum sentences to which he may be subjected. The court did not advise this defendant that his escape plea might result in a consecutive sentence. The State conceded that this was error. (People v. Flannigan, 131 Ill.App.2d 1059, 267 N.E.2d 739.) Accordingly, on October 30, 1972, this court vacated the plea of guilty and the consecutive sentence for escape in No. 11973, and remanded the case to the circuit court with directions to permit the defendant to plead anew.

The defendant was likewise sentenced to the penitentiary for one to five years on the aggravated battery charge. (No. 11973.) The defendant was not advised by the trial court of his right to appeal on the theory that the aggravated battery was treated as a misdemeanor and no advice to the defendant of his right to appeal was required under Rule 605. At the time of the defendant’s plea and sentence, Rule 605 required the trial court to advise the defendant of his right to appeal only in felony cases. In July, 1971, that proviso was changed to provide for such advice to be given where the defendant is convicted of an offense punishable by imprisonment for more than six months. Thus today it would be necessary for him to be advised of his right to appeal. Inasmuch, however, as the defendant has perfected appeals in all cases, this issue becomes moot.

The new Code of Criminal Corrections became effective January 1, 1973. (Ill. Rev. Stat. ch. 38, par. 1008 — 6—1.) That Code provided a new method of dealing with consecutive sentences, and under par. 1005 — 8—4 in par. (h) provides that “Paragraphs (e), (f) and (g) of this Section shall apply to persons in the custody of the Department of Corrections on the date this Act becomes effective # Under Ill.

Rev. Stat, ch. 38, par. 2 — r7, a felony is defined as “an offense punishable with death or by imprisonment in the penitentiary”. .Thus the aggravated battery charge carrying a sentence of one to five years imposed by the court brings into play par. 1005 — 8—4(e) which provides in substance that under the circumstances here stated the defendant shall be treated “as though he had been committed for a single term with the following incidents: (1) the maximum period of an. indeterminate term of imprisonment shall consist of the aggregate of the . imposed indeterminate terms plus the aggregate of the imposed determinate, sentences for mis- • demeanors subject to paragraph (c) of this Section; * * Applying these provisions then to the case at bar, we find an indeterminate sentence of one to five years imprisonment in.the penitentiary which may. be followed by a consecutive sentence for escape. Accordingly, the de-. fendant’s conviction and sentence in No. 11973 is affirmed. The denial- of habeas corpus in No. 11718 is affirmed. . .....

Judgments affirmed.

TRAPP and SIMKINS, JJ., concur.


author: PRESIDING JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Todd Woods, Defendant-Appellant.
    (No. 12016;
    Fourth District —
    July 25, 1973.
    John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Defender, of counsel,) for appellant.
    No appearance for the People.
   Opinion by Mr.

PRESIDING JUSTICE CRAVEN.


author: Mr. PRESIDING JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William E. McGuire et al., Defendants-Appellants.
    (No. 12175;
    Fourth District —
    July 25, 1973.
    John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Defender, of counsel,) for appellants.
    Homer J. Tice, State’s Attorney, of Petersburg, for the People.
   Opinion by

Mr. PRESIDING JUSTICE CRAVEN.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    Earl E. Richey et al., Plaintiffs-Appellees, v. County Board of School Trustees of Jersey County et al., Defendants-Appellants.
    (No. 12219;
    Fourth District —
    July 25, 1973.

      Suddes, Davis & Wittman, of Jerseyville, for appellants.
    John A. Farrell, of Alton, for appellees.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The plaintiffs petitioned the County Board of School Trustees of Jersey County for detachment of an 80-acre tract of land upon which they reside from Community Unit District No. 100, Jersey and Greene Counties, and for ultimate annexation to Community Unit District No. 9 of Jersey and Macoupin Counties. After a hearing, the County Board of School Trustees denied the petition. Upon administrative review, the circuit court reversed and ordered the requested detachment and implementation of the requested annexation. We affirm.

We agree with the conclusion of the trial court that there was no substantial evidentiary basis for the denial of the petition. By the terms of paragraph 7 — 6 of chapter 122, Illinois Revised Statutes, 1971, the county board of school trustees is required to hear evidence as to the school needs and condition of the territory, and is to consider the ability of the districts affected to meet the standards of recognition as prescribed by the superintendent of public instruction; and in determining the detachment, the county board of school trustees is to take into consideration the division of funds and assets which wiH result from the change of boundaries; and, finally, shall determine whether the requested detachment and annexation is in the best interests of the schools of the area and the educational welfare of the pupils.

In this case, the evidence is to the effect that the requested detachment and annexation would have no substantial financial effect on either district — indeed such effect would be so minute as to be irrelevant in the consideration of this case. The evidence was to the effect that the petitioners would be better served and their children would.be better served by the bus routes of Community Unit District No. 9 in that the required bus ride would be substantially shorter. The evidence is further to the effect that petitioners were oriented, both socially and in a business sense, with reference to Community Unit District No. 9; and the detachment and annexation would in no way adversely affect the ability of either school district to meet the standards as prescribed by the superintendent of public instruction.

Indeed, the only evidence bearing on the opposition to the detachment by Community Unit District No. 100 was the statement by the superintendent of that district to the effect that the board of education of that district opposed the petition because of the probability of resulting further petitions to detach territory from the district. In Wheeler v. County Board of School Trustees, 62 Ill.App.2d 467, 210 N.E.2d 609, in considering a similar issue, the court concluded that mere speculation or probability that the requested detachment would set a precedent for the future was not a sound basis for denial of detachment. We agree.

The facts in this case are strikingly similar to the facts as set forth in Burnidge v. County Board of School Trustees, 25 Ill.App.2d 503, 167 N.E.2d 21. The court there stated:

“So far as any benefit or detriment to either district is concerned the record shows that neither district will be affected in any substantial measure. Thus, the determination should be made to turn solely upon the welfare of the pupils. It is clear from the record that none of the pupils of either district excluding the students who live in the territory petitioning, will be affected by the granting or denial of the petition. But on the other hand, the evidence clearly shows that the welfare of the students living in the territory sought to be changed will clearly be affected.
Assuming that the educational opportunities in the district are. equal, we cannot overlook the obvious advantage to a child of attending a school in close physical proximity to the child’s home. In addition to the savings in transportation costs, and diminution in time spent daily by children riding a bus, there would be a certain safety factor by reason of diminution of exposure and certainly a lessening of fatigue accompanying a long bus ride to and from school.
But even as much or more than these considerations, is the fact that an identification with a school district in a child’s natural community center will inevitably result in increased participation in school activities by the child and his parents. Such increased participation cannot but result in an improvement in the educational picture of the entire area. By the same token, an unnatural identification with a school district would have an opposite result with a corresponding loss of participation and resulting poorer educational picture. In recognition of these facts the legislature made provision for proceedings to change the boundaries of existing districts.”

The denial of the petition for detachment was contrary to the manifest weight of the evidence and the judgment of the circuit court so holding should be, and the same is, affirmed.

At the time of oral argument; counsel for the respective parties stipulated that upon the filing of the opinion in this case it would be appropriate that the mandate of this court issue forthwith. Accordingly, the judgment of the circuit court of Jersey County is affirmed and the mandate of this court is ordered to issue forthwith.

Judgment affirmed.

TRAPP and SIMKINS, JJ., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Robert H. Ritchason, Plaintiff-Appellee, v. William W. Lamont, Defendant-Appellant.
    (No. 72-141;
    Fifth District —
    July 24, 1973.
    Elmer Jenkins and Jeff Troutt, both of Benton, for appellant.
    Robert S. Hill, of Benton, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the memorandum opinion of this court:

This is an appeal from a judgment of the Circuit Court of Franklin County, in a non-jury case in which the plaintiff-appellee was awarded $1000, pursuant to an oral contract for commission on the sale of real estate. Plaintiff’s testimony as to the existence of the contract is supported by the testimony of two other persons present at the transaction, while the defendant’s evidence consists of his denial of entering into a contract with the plaintiff.

An examination of the evidence reveals that the judgment is not against the manifest weight of the evidence or that the trial judge erred in believing the evidence of the plaintiff and not that of the defendant.

No error of law appears and an opinion would have no precedential value.

Accordingly the judgment is affirmed in compliance with Supreme Court Rule 23. Ill. Rev. Stat., ch. 100A, § 23.

Judgment affirmed.

G. MORAN and CREES, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Dunn, Defendant-Appellant.
    (No. 73-2;
    Fifth District —
    July 24, 1973.

      Robert E. Farrell, District Defender, of Mt. Vernon, (Edith L. James, Assistant Defender, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Eddie Dunn, pleaded guilty to the crime of burglary in the Circuit Court of St. Clair County and was sentenced to the penitentiary for a term of not less than five nor more than ten years. No direct appeal was taken but defendant did file a pro se post-conviction petition, which petition was dismissed without evidentiary hearing. On appeal he claims that the court erred in dismissing his petition without an evidentiary hearing and that he was denied adequate representation by counsel apappointed to represent him at the post-conviction hearing.

An examination of the record in this case reveals that the trial court judge who presided at the time defendant entered his plea inquired into the voluntariness of defendant’s plea. He asked defendant whether he wanted to plead guilty and whether he understood that he had a right to a trial by jury, to representation by counsel, to confront witnesses and that the court, upon acceptance of the plea, could sentence him to an indeterminate sentence. The defendant answered these questions in the affirmative. The defendant was then asked whether he understood that the court was not bound by any promise or inducements made by any person whatsoever and that the punishment imposed was left entirely up to the judge. This question was also answered in the affirmative. The court then inquired of the defendant whether there had been any deals or negotiations for a plea. At this point the state’s attorney interrupted the questioning and defendant thereafter was not given an opportunity to respond.

In defendant’s pro se petition he asserted several grounds amongst which was his claim that he had been promised a sentence of not less than one year nor more than three years and that he was kept in solitary confinement without visitors, mail or food until he entered a guilty plea. These claims went unrefuted. He also claims that counsel appointed to represent him at the hearing was incompetent and provided inadequate representation. In this regard it is significant that the attorney so appointed did not amend or modify the defendant’s pro se petition and at the time of the hearing on the state’s motion to dismiss merely gave a cursory reiteration of one of the points raised by the defendant.

The law of the State of Illinois requires that the record filed in the trial court shall contain a showing that the attorney appointed to represent the petitioning defendant has consulted with the petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights and that he has examined the record of the proceedings and has made any necessary amendments to the pro se petition that are necessary for an adequate presentation of petitioner’s contentions. (Ill. Rev. Stat, ch. 110A, sec. 651(c).) Certainly defendant’s unrefuted claims of a promise of leniency and detention in solitary confinement without food or visitors which were contained in his pro se petition raise issues of constitutional proportions requiring an evidentiary hearing when properly presented, particularly in view of the fact that in the court’s initial inquiry of defendant, prior to acceptance of his plea, defendant was not given the opportunity to respond to whether there had been any inducement to so plead. Here, however, there is no showing that defendant’s appointed counsel at any time conferred with him and it is clear that the petition was not amended and that petitioner’s claims were not adequately presented. We have previously held that failure to show compliance with Rule 651(c) will require reversal and remandment. People v. Rooney, 6 Ill.App.3d 527, 285 N.E.2d 586.

The dismissal of the post-conviction petition is reversed and remanded for appointment of counsel and an evidentiary hearing.

Reversed and remanded.

ERERSPACHER, P. J„ and G. MORAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Truxton K. Field, Defendant-Appellant.
    (No. 71-270;
    Fifth District —
    July 25, 1973.

      Robert E. Farrell, District Defender, of Mt. Vernon, (Kenneth L. Jones, Assistant District Defender, Kathleen Buck and Nicholas J. Schiralli, Senior Law Students, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, James W. Jerz and Martin Moltz, of Model District State’s Attorneys Office, of Elgin, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Truxton K. Field, was tried by jury in the Circuit Court of St. Clair County on an indictment charging him with the crime of murder. He was found guilty and sentenced to the penitentiary for a term of not less than 45 nor more than 90 years. On appeal defendant argues that he was not proven guilty beyond a reasonable doubt, that the court erred in admitting into evidence defendant’s oral confession and that the court further erred in admitting into evidence certain photographs of the murder victim taken during an autopsy procedure. Defendant also assigns as error the admission of certain other evidence, notably hearsay evidence concerning telephone conversations, and also the victim’s bloody clothing. Defendant’s final argument is that the sentence imposed was excessive.

The facts in this case as they were presented to the jury are substantially as follows: On March 9, 1970, the decedent’s body was found on the edge of a woods in St. Clair County. An autopsy was performed on the body and the coroner testified that the cause of death was gunshot wounds to the head. There were two wounds in decedent’s head, either of which would have been fatal. Pictures were entered into evidence over defense’s objection which showed the position of these wounds by the insertion of surgical instruments in the bullet holes. The chief prosecution witness was Johnny Vunetich, a cousin of the defendant. It was his testimony that he and the defendant returned a borrowed car to the apartment of Ben Goodon whereat Vunetich called the decedent in order to get a ride home. While waiting for the decedent to arrive, Vunetich told defendant that decedent was a homosexual, and defendant thereupon evinced a desire to “roll” decedent, to which Vunetich agreed. When decedent arrived, Vunetich sat in the passenger seat and defendant in the back. They drove to a site known as Dutch Hollow Road whereat defendant shot decedent in the finger and then shot him in the head. Defendant and Vunetich then dragged decedent from the car and left him lying in the grass. Before leaving him defendant shot decedent in the head a second time. The gun was buried and defendant and Vunetich ran to the BZB Restaurant from which Vunetich called his mother to pick them up. Defendant then called Goodon and told him that he had shot someone. Vunetich’s mother picked up the pair. Vunetich was thereafter picked up by the police. He first stated that he knew nothing about the crime, but later gave a detailed statement. In that statement he indicated that defendant had previously stolen a .38 caliber gun from a house in the area and that other objects stolen from the house were sold through Goodon. It was Vunetich’s testimony that he knew that defendant was a police informant and that decedent was a homosexual. He had previously spent the night with decedent, and decedent had given him money on occasions.

Mrs. Vunetich, the mother of Johnny Vunetich, also testified for the State. She stated that she received a call from defendant and that she drove to the BZB to pick up her son and defendant. She dropped her son off to see his girl friend and brought defendant home with her, at which point defendant told her that he had shot a man three times and that he, too, had been shot. Defendant then burned his bloodstained clothes on her patio. She further testified that she had seen defendant with a .38 caliber gun on the day preceding the crime in question. •

Another state witness testified that approximately three weeks prior to his arrest, defendant asked the witness to purchase some .38 caliber shells for him and there was testimony from several other witnesses that they had seen defendant with a .38 caliber revolver shortly prior to the crime in question.

The first witness for the defense was Ruth' Brown, who testified that Johnny Vunetich came to her apartment on the day in question and confessed that he had killed a man and that he had thrown the gun used in the crime over a cliff. A week after the crime, Vunetich told this same witness that it was defendant and not he who had shot decedent. A St. Clair County deputy sheriff testified that he transported Johnny Vunetich from the county squadroom to the detention home and that enroute, Vunetich admitted that he had killed decedent. A security guard at the detention home also testified that Vunetich told him that he had killed a man with a .38 and that he bragged about killing the decedent to other juveniles being detained, never mentioning defendant. There were several other witnesses who testified to the fact that Vunetich admitted and bragged about killing the decedent and digging up the buried gun and throwing it in a river. Defendant then testified in his own behalf. It was his testimony, which was corroborated by police witnesses, that he was a police informant and that he had been sent to meet Goodon and obtain information about a “fencing” operation which Goodon was suspected of conducting. He testified that he had a .38 caliber Smith and Wesson firearm which Johnny Vunetich had stolen in a burglary and given to Goodon who, in turn, gave it to defendant. On the evening prior to the occurrence in question, he picked up Johnny Vunetich and together with several other people they proceeded to make the rounds of a number of bars. At approximately 4:30 A.M. they arrived at Goodons apartment. The next afternoon Vunetich told defendant that he was leaving Goodons house with a homosexual friend. Defendant did not go with Vunetich because he was suffering with a hang-over. Vunetich later called defendant at Goodons apartment from the BZB and told him that he had shot his homosexual companion. Goodon was called in rebuttal by the State and he denied ever having given defendant a gun or being involved in a “fencing” operation, and reiterated his previous statement that the defendant had told him he had shot and kiHed a man.

The first issue raised on appeal is whether or not the State proved defendant guüty beyond a reasonable doubt. Defendant points out that the prosecutions case rested primarily upon the testimony of the accomplice, Johnny Vunetich, whose testimony is conflicting. It is weH established that it is within the province of the jury to weigh the evidence and determine the facts and we wffl not interfere with that province unless the verdict is found to be palpably contrary to the weight of the evidence. (People v. Pulaski, 15 Ill.2d 291, 155 N.E.2d 29.) Whffe it is true that the testimony of an accomplice witness is subject to grave suspicion and should be acted upon with great caution (People v. Tillman, 130 Ill.App.2d 473, 265 N.E.2d 904; People v. Kelly, 73 Ill.App.2d 142, 219 N.E.2d 744), a jury may, nonetheless convict even on the uncorroborated testimony of a defendant's accomplice if said testimony is credible. (People v. Reyes, 131 Ill.App.2d 134, 266 N.E.2d 539.) In this case we not only have the testimony of an accomplice, Johnny Vunetich, but we also have the testimony of other individuals corroborating his statement. Ben Goodon testified that a phone caU was made from his house to that of the decedent on the day in question and that he received a phone caU from defendant sometime later on the same day at which time defendant admitted tilling the decedent. The coroner’s examination revealed that the bullets traveled in directions compatible with the witness Vunetich’s description of the crime. Defendant admitted owning a .38 caliber gun and several people testified to seeing him in possession of such a gun just prior to the murder. The fact that the witness, Vunetich, bragged to several people that he had tilled the decedent and that his testimony was conflicting in certain respects goes to the weight and credibüity of his identification of defendant as the perpetrator of the crime, but does not destroy his competency. It was in the jury’s province to assess the credibility of the witnesses and we find that there was insufficient evidence, if believed, to establish defendant’s guilt beyond a reasonable doubt.

The next issue raised is whether the trial court committed reversible error in admitting into evidence testimony concerning defendant’s alleged oral confession. In regard to this confession, it is first claimed that it was inadmissible by virtue of the failure of the State to give defendant proper notice thereof and a list of witnesses thereto. Two State witnesses were allowed to testify that. defendant told them approximately three weeks prior to trial that if there was some assurance that other individuals involved in the commission of the crime were also punished, he would show them where the gun used in the commission of the crime was hidden. Prior to the time this statement was allegedly made, the State provided the defendant with a Bill of Particulars in which it was stated that there was no confession. Four days prior to trial the State filed an amended list of witnesses wherein the witnesses to the alleged oral confession were set forth. No notice of the alleged confession was given. Section 114 — 10(a) of chapter 38 of the Illinois Revised Statutes requires the State to furnish defendant, upon motion, a copy of any written confession or a list of witnesses to any oral confession and further provides that no such confession shall be received in evidence which is not furnished in compliance with those requirements. As noted in defendant’s brief, the purpose behind this enactment was to provide the accused with protection against surprise, unfairness and inadequate preparation by requiring disclosure prior to trial of the specified information as to confessions and witnesses thereto. (People v. O’Connell, 30 Ill.2d 603, 198 N.E.2d 834.) In the case now before us, we feel that there is no showing that defendant was prejudiced or that he was not protected against surprise, unfairness and inadequate preparation. Prior to trial, defense counsel was given an opportunity to interview the two witnesses who testified as to the confession and did in fact interview them and admitted that he knew of the purported statement prior to trial. Furthermore, there was no objection at the time of trial that the provisions of section 114 — 10(a) had not been complied with and in fact defense counsel specifically stipulated that the trial could proceed, subject to his right to confer with the witnesses prior to their testimony. It is thus clear that any violation of section 114 — 10(a) was waived.

Aside from the argument concerning notice of witnesses and confession, defendant also contends that the confession was inadmissible, in that it was involuntarily made because of an inducement through a promise of more lenient sentence. This argument arises out of the context of the statement itself. Sheriff O’Neal testified that defendant requested to see him and that when he arrived he asked defendant what he wanted, whereupon defendant, in O’Neal’s words, stated, “He said it looked as though, he said, he had been asked to take a plea of 14 to 20 and if he was going to have to go he wanted two other people to go with him. If I could guarantee that they would go, too, he said, I’ll even show you where the gun is I used on Diehl.” Defendant claims that this statement shows that the confession was made as a result of a promise of 14-20 years. This argument is without merit. That statement merely indicates that defendant felt that he was going to have to go to prison and that if he went he also wanted some other individuals allegedly involved in the crime to go also. The statement was made as an inducement to the police to prosecute alleged co-perpetrators of the crime, and there is no showing that it was made as the result of a promise of leniency to defendant.

Defendant further claims, in regard to the confession, that it should have been suppressed by virtue of the fact that he was denied his Sixth Amendment Right to Counsel. In support of this argument, he cites the landmark decision of Massiah v. the United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199, in which case the Supreme Court reversed a conviction where, after indictment, defendant made a voluntary statement outside the presence of his counsel. In that case, however, the statement was made to a confederate of defendant and was overheard by government agents through a radio hidden in the confederate’s automobile, with the confederate’s consent. We do not think that the facts in the instant case fall within the Massiah rule, and do not feel that Massiah was intended to be an absolute mandate, barring all statements made outside the presence of counsel. (United States v. Springer, 460 F.2d 1344, 1350.) Here there was no interrogation or ruse which was used in order to induce defendant to make an inculpatory statement. The statement was, in our view, voluntary and admissible.

The next assignment of error is the trial court’s admission of certain photographs of the decedent taken during an autopsy procedure. It is his claim that these pictures were inflammatory, irrelevant and prejudicial. One of the photographs shows the body of decedent viewed from a position directly behind the top of decedent’s head. Tweezers are protruding from a bullet hole in the right side of decedent’s head and a long probe is placed in the bullet hole on the left side of the head. The top of decedent’s head is covered by numerous scabs. The other photograph complained of depicts a close-up of decedent’s bloodstained hand. The coroner testified that one of the bullets entered the right temple region of decedent just in front of his ear and traveled downward to the bottom of the brain. The second bullet entered the left temple at a slight downward angle. He also testified that dirt was found in the scabs on top of decedent’s head. It was the testimony of Johnny Vunetich that defendant shot decedent in the hand prior to shooting him in the head. It is defendant’s position that these pictures do not help explain testimony of the doctor, or Vunetich, and were used only to inflame the passions and prejudices of the jury. It is well established in this State, however, that the admission into evidence of photographs of a murder victim is within the sound discretion of the trial court (People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297; People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771; cert, denied. 90 S.Ct. 578, 396 U.S. 1016, 24 L.Ed.2d 507), although if that discretion is palpably abused, reversal is warranted. (People v. Lefler, 38 Ill.2d 216, 230 N.E.2d 827.) In the case now before us, we do not feel there was such an abuse of discretion. The tweezers and probe which were inserted in the bullet woimds aided the jury in assessing the coroner’s evidence by showing the position and angle of the bullet wounds and the picture of the hand corroborated Vunetich’s testimony. Under the circumstances, we do not deem the admission of these pictures to constitute reversible error. People v. Jackson, 9 Ill.2d 484, 138 N.E.2d 528.

Defendant also cites several other alleged errors which he admits do not, standing alone, constitute sufficient cause to reverse the trial court decision. It is claimed, however, that the cumulative effect of these errors constitutes sufficient grounds for reversal. The first error assigned is the court’s refusal to permit a witness to testify by virtue of her presence in the court room contrary to an order excluding witnesses. The well established rule is that the decision of whether or not a witness who has disobeyed an exclusionary order should be allowed to testify is within the sound discretion of the court. (People v. Nelson, 33 Ill.2d 48, 210 N.E.2d 212; People v. Bridgeforth, 51 Ill.2d 52, 281 N.E.2d 617; People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840.) We do not feel that there was an abuse of this discretion. Furthermore, there was no offer of proof in regard to what the witness would have testified to and the point is thus not preserved in the record.

Defendant also objects to the testimony of a police officer in regard to a telephone conversation to determine the ownership of decedent’s motor vehicle. It is clear that the testimony was hearsay and should have been excluded, but in view of the testimony of other witnesses who identified the car as that which belonged to decedent, we cannot find any prejudicial effect in the erroneous admission of this hearsay testimony, particularly when the facts testified to were not material to the charge against defendant.

Objection is also made to the admission of testimony of a certain police officer as to whether certain telephone calls had been placed from the phone number of Ben Goodon to the residence of the decedent. The police officer testified from telephone records and there was admittedly an improper foundation for the admission of this evidence. Again, however, there was sufficient corroboration through the testimony of other witnesses to establish the fact that telephone conversations were made and we do not feel that the defendant was in any way prejudiced by the admission of this testimony.

Defendant also complains that the testimony of the coroner in regard to the cause of death was repetitious and served to inflame the jury. The doctor merely established the cause of death and the fact that the decedent had apparently been dragged, as evidenced by the muddy scabs on his head. We do not feel that this testimony was intended to, or was of such a nature as to inflame the jury.

Another assigned error is the admission into evidence of decedent’s bloody clothing. This clothing was admitted for the purpose of establishing that decedent had been dragged by the seat of his pants from the scene of the shooting and to that end, was corroborative of the testimony of the State’s key witness, Vunetich, and was admissible on that basis.

Defendant’s final claim is that the sentence imposed, 45 to 90 years, was excessive, particularly in view of the fact that an admitted participant in the crime, Vunetich, was granted immunity from prosecution and still walks the streets. Defendant’s past record reveals two prior felony convictions and he was not released from prison until March of 1970 and this crime occurred in March of 1971. We see little merit in defendant’s claim that by virtue of defendant’s long imprisonment he has been given no opportunity to show his rehabilitative potential. He has been in trouble since the age of 16, and when not in prison, has been engaged in criminal activity culminating in the methodical coldblooded murder for which he was here tried. We do feel, however, that the sentence does not meet the current guidelines in regard to the relation of minimum to maximum sentences, and, therefore, reduce the sentence imposed to a minimum of 30 years and a maximum of 90 years. The decision of the trial court is therefore affirmed as modified.

Affirmed.

G. MORAN, P. J., and JONES, J., concur.


text:
    Carol Lolie, Admrx. of the Estate of Allan Lolie, Deceased, Plaintiff-Appellant, v. Ohio Brass Company, Defendant—(Monterey Coal Company, Defendant-Appellee.)
    (No. 11983;
    Fourth District —
    July 25, 1973.
    Richard Shaikewitz, of Wiseman, Shaikewitz & McGivern, of Alton, for appellant.
    Stuart Dobbs, of Denby & Dobbs, of Carlinville, for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

Plaintiff Carol Lolie, administratrix of the estate of Allan Lolie, deceased, brought an action against Ohio Brass Company and Monterey Coal Company. The complaint alleged that plaintiff’s decedent was an employee of Monterey Coal Company, working at defendant’s Mine No. 1. During the course of his employment, a heavy power cable fell from the ceiling of a tunnel, striking decedent on the head and killing him. Count I of the complaint was brought against Ohio Brass Company and is not involved in this appeal. Count II as amended was against Monterey Coal Company and was based upon defendant’s purported willful violation of the Illinois Coal Mining Act. Defendant moved to dismiss. Defendant’s theory was that the Illinois Workmen’s Compensation Act, Illinois Revised Statutes, 1971, chapter 48, paragraphs 138.5 and 138.11, are plaintiff’s exclusive remedies; and, moreover, paragraph 10.07 of the Coal Mining Act provides that the Illinois Workmen’s Compensation Act is applicable, thus barring plaintiff from recovery. The trial court dismissed Count II and entered judgment. As required by Supreme Court Rule 304(a), the trial court made, a special finding that there was no just reason for delaying enforcement or appeal of the judgment. Plaintiff appeals that order.

The single issue for review is whether the dependents of a deceased coal miner can only resort to the Illinois Workmen’s Compensation Act to recover from an employer when the employee’s death occurred during the course of his employment, thus excluding any remedy that exists under the Coal Mining Act.

A review of the relevant statutory provisions involved in this issue is necessary. IHinois Revised Statutes, 1971, ch. 48, par. 138.5, states in part:

“(a) No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by any employee whHe engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to anyone whoUy or partially dependent upon him, the legal representatives of his estate, or anyone otherwise entitled to recover damages for such injury.”

Chapter 48, paragraph 138.11, states:

“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibfiity of any employer engaged in any of the enterprises or businesses enumerated in Section 3 of this Act, or of any employer who is not engaged in any such enterprises or businesses, but who has elected to provide and pay compensation for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act, and whose election to continue under this Act, has not been nullified by any action of his employees as provided for in this Act.”

Chapter 48, paragraph 138.3(5), provides that the Workmen’s Compensation Act shaU apply, without election, to employers and employees engaged in mining.

Illinois Revised Statutes, 1971, chapter 93, paragraph 10.07, provides that a right of action accrues to the personal representative of a miner who is MHed as a result of a wülful violation of the safety provision found in the Coal Mining Act, chapter 93, paragraph 1.01, et seq.; however, the paragraph specifically limits such a right of action when it states: The Workmen’s Compensation Act is such a statute as referred to in the above quoted excerpt.

“* * # Provided, that if and whenever there shaU be in force in this State a statute or statutes providing for compensation to workmen for all injuries received in the course of their employment, the provisions thereof shall apply in fieu of the right of action for damages provided in this Act.”

The plaintiff essentially contends that the Coal Mining Act creates a separate action for miners and their dependents when a miner sustains an injury that results from his employer’s violation of the safety standards found in the Coal Mining Act; that this separate action supersedes the protection provided under the Workmen’s Compensation Act; and that the Workmen’s Compensation Act only applies if, for some reason, a miner or his dependents cannot avail themselves of the civil liability provisions found in the Coal Mining Act. In support of this contention, plaintiff argues that the legislature created file Coal Mining Act with the intent of permitting coal miners and their dependents to recover for injuries or deaths resulting from substandard safety in the mines. Plaintiff’s position is untenable in light of the language of the above cited statutes.

Chapter 48, paragraph 138.3, includes mining as a covered enterprise under the Illinois Workmen’s Compensation Act. Paragraphs 138.5(a) and 138.11 establish that the exclusive remedy available for an employee (or dependents) who works in covered industry is under the Illinois Workmen’s Compensation Act. Chapter 93, paragraph 10.07 of the Coal Mining Act specifically precludes a miner or his dependents from recovering against an employer via the civil liability provisions of said paragraph since the Illinois Workmen’s Compensation Act is a statute “providing for the compensation” of a worker (or dependents) for injuries received in the course of employment.

We find that plaintiffs decedent was engaged in an enterprise covered by the Illinois Workmen’s Compensation Act and that the plaintiff is foreclosed from resorting to paragraph 10.07 of the Coal Mining Act by virtue of the language of that paragraph, and that Workmen’s Compensation Act, paragraphs 138.5 and 138.11, is her exclusive remedy. The judgment of the trial court so holding was correct and is affirmed.

Judgment affirmed.

SMITH and SIMKINS, JJ., concur.