author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ollie Hammonds, Defendant-Appellant.
    (No. 71-318;
    Fifth District
    June 7, 1973.

      Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James and Clinton Batterton, of counsel,) for appellant.
    Nicholas G. Byron, States Attorney, of Edwardsville, (P. J. O’Neill, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Ollie Hammonds, after a jury trial in the Circuit Court of Madison County, was found guilty of the crimes of armed robbery and rape. He was sentenced to a term of not less than five nor more than nine years for armed robbery and to a term of not less than fifteen nor more than seventeen years for rape with the sentences to run concurrently.

On this appeal defendant contends that he was not proved guilty beyond a reasonable doubt, that his in court identification was tainted by a prejudicial pre-trial showup, that he was denied a fair trial because of prejudicial testimony by a police officer, that he was not accorded trial by an impartial jury of his peers since there were no blacks on the jury, that the court erred in failing to strike a section of a particular jury instruction offered by the state, and finally that his sentence is excessive.

After an examination of the record we have determined that no error of law appears, that an opinion would have no precedential value, and that the evidence is not so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. We do however believe that the sentence imposed for rape is not sufficiently indeterminate to offer the parole authorities the discretion they require if they are to be effective. We therefore reduce the minimum sentence for rape to a period of six years and in all other respects affirm in accordance with Supreme Court Rule 23. Ill. Rev. Stat., ch. 110A, sec. 23.

Affirmed as modified.

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Robinson, Defendant-Appellant.
    (No. 72-112;
    Fifth District
    June 7, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.

      Robert H. Rice, State’s Attorney, of Belleville, (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of Elgin, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Willie Robinson, pleaded guilty to burglary and theft in excess of $150 in the circuit court of St. Clair County, and was sentenced to the penitentiary for a term of not less than 4 nor more than 12 years. On this appeal it is contended that the trial court erred in denying defendant’s election to undergo rehabilitation treatment as a narcotic addict pursuant to the Dangerous Drug Abuse Act. Ill. Rev. Stat., ch. 91½, sec. 120.1 et seq. (Eff. 7/1/71.)

A hearing on defendant’s application for probation was held on October 12, 1971. The probation report submitted to the court recommended against probation but stated that defendant “* * * is a known narcotic addict and these burglaries are a method of him obtaining money to supply his habit.” It was recommended that, “* * * he should be confined to a penal institution where he may be able to be put on a withdrawal basis and cure from the drug habit.” It also appeal's that while confined prior to trial defendant had complained of being sick with cramps due to heroin withdrawal symptoms and that he had been taken to a hospital for a shot. His previous record consisted of three burglary and larceny convictions and one conviction for illegal possession of narcotic drugs.

After reading the probation report the court asked defendant if he wanted to stand on it or if he would like to introduce testimony. The defendant replied that the Narcotics Service Counsel, the NACO Program, had accepted him and that he would like to get in that program if possible. His attorney added that he had a letter proving that defendant had been in touch with that program and would be accepted for enrollment. The court then asked defendant if he stole to buy drugs and the defendant replied in the affirmative. With no further discussion of drugs or the alleged addiction of defendant the court called attention to his long list of arrests and convictions, and then denied probation and imposed sentence.

On the basis of these facts defendant contends that his request for commitment to the NACO Program constituted an election to be sen-enced under the Dangerous Drug Abuse Act and that the imposition of a penitentiary sentence was improper. The State argues that whether a person should be accorded the benefit of the Act is solely within the discretion of the court, and that to qualify for treatment of his drug addiction, rather than be punished for his crime, defendant must first show himself “worthwhile” of probation under the normal standards governing probation.

The Dangerous Drug Abuse Act is a comparatively recent enactment of the Illinois Legislature and the question presented here is one of first impression. We find it necessary, therefore, to discuss the Act at some length. Its purpose as a medico-social approach to drug addiction is stated in section 120.2 as follows:

“It is the public policy of this State that the human suffering and social and economic loss caused by addiction to controlled substances and the use of cannabis are matters of grave concern to the people of the State. It is imperative that a comprehensive program be established and implemented through the facilities of tire State, counties, municipalities, the Federal Government, and local and private agencies to prevent such addiction and abuse; to promote research on the effects and consequences of the abuse of controlled substances and use of cannabis; to study the problem of the abuse of controlled substances and use of cannabis in this State and inform the public as to its findings; and to provide diagnosis, treatment, care and rehabilitation for controlled substance addicts to the end that these unfortunate individuals may be restored to good health and again become useful citizens in the community.”

It is apparent that the Act is intended to reach all individuals in need and to provide for their treatment and rehabilitation whether or not charged with a crime, and whether or not convicted of a crime. Depending upon the status of the individual, different procedures are provided for his acceptance for treatment by the Department of Mental Health. Section 120.7 applies to an individual not subject to a criminal charge; section 120.9 to one charged with crime but not yet convicted; and section 120.10 to one already convicted of á crime (by plea or otherwise) but not yet sentenced. It is with this last section that we are presently concerned.

This section provides in substance that if the court has reason to believe an individual is an addict, or if the individual states he is an addict (and provided in all instances, that the individual is eligible for treatment under the qualifications stated in section 120.8), the court, in its discretion, may offer him an opportunity to choose treatment in lieu of an immediate imposition of sentence. However, the court must first advise him of the consequences, i.e., (a) that he will be placed on probation and under the supervision of the department for a period not exceeding the maximum sentence that could be imposed for the crime for which he was convicted or 5 years, whichever is less; (b) that during that probation period he might be confined in an institution or, at the discretion of the department, released to the community for supervised after-care treatment; (c) that if he adheres to the program and the conditions of his probation he will be discharged, but that any failure to adhere to the program shall constitute a breach of probation and such breach shall then be treated in accordance with the probation regulations. If, at this point the individual elects to undergo treatment the court must order an examination by the Department of Mental Health to determine if he is an addict and likely to be rehabilitated through treatment. Thereafter, acting upon the report and the recommendations of the department, if the court determines that the individual is an addict and likely to be rehabilitated it may place him on probation under the supervision of the probation authorities and under treatment by the department. If the court determines that the individual is not an addict or is an addict not likely to be rehabilitated through treatment it must proceed to pronounce sentence as in other cases.

Examining this procedure closely it appears eminently clear that the granting of treatment, in lieu of imprisonment for the particular crime committed, is at the discretion of the court and not an option to be chosen solely by the defendant. Nor must defendant first show himself qualified for probation as contended by the State. The probation mentioned is merely descriptive of the status of the individual when and if he is accepted for treatment.

Accordingly, the issue here is not whether defendant elected to undergo rehabilitative treatment as an addict, but rather whether the court abused its discretion in not inquiring further into defendant’s addictive state so that it might be understanding^ determined whether he actually was an addict and a likely subject for rehabilitation. From the facts before us there can be no question that in the language of the Act the court should have “had reason to believe defendant was an addict”. The probation report referred to him as a known narcotic addict, and specifically stated that the burglaries he committed constituted his means for obtaining money to supply his habit. It recommended that defendant should be confined where he might be put on a withdrawal basis and be cured of his drug habit. In reply to a specific question from the court defendant admitted stealing to buy drugs and the court was informed that he had been accepted for treatment in the NACO Program of the Narcotics Service Counsel.

Under these circumstances it is our conclusion that the trial court abused its discretion in failing to implement the provisions of the Act. Though it appears to have been unintentional due to a lack, of information concerning the Act on the part of all parties, nonetheless, it is our opinion that the defendant, if qualified, should have been and still is entitled to the benefits of the Act. Persuasive of this conclusion is a California case interpreting a statute similar to ours relating to civil commitment of narcotic addicts. (People v. Ortiz, 61 Cal.2d 249, 37 Cal. Rptr. 891, 391 P.2d 163.) The court there noted that the California statute likewise does not set forth any formalities which the trial court must follow in making the preliminary determination whether defendant is addicted to narcotics and requires institution of commitment proceedings, nor does it specify any criteria which the court must consider in so ruling. However, the court concluded that the discretion vested in the court should be exercised with a view to implementing, rather than possibly frustrating, the strong legislative policy disclosed by the enactments creating and governing the narcotic addict rehabilitation program. And that policy favors inquiry into the addictive status of all criminal defendants whose record indicates the presence of an addiction problem. We are in accord with this view.

The judgment of the circuit court of St. Clair County is reversed insofar as it decrees the sentence as entered, and the cause is remanded, not for a new trial on the issue of guilt, but for such further proceedings under the Drug Abuse Act as are necessary, to enable the court to exercise the discretion vested in it in conformity with this opinion.

Reversed and remanded with directions.

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


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmie Lee Smith, Defendant-Appellant.
    (No. 72-136;
    Fifth District
    June 7, 1973.

      . Robert E. Farrell, of Defender Project, of Mt. Vernon, (James Homola, Senior Law Student, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (Richard F. Nash, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from the judgment of the circuit court of St. Clair County which found him guilty, by jury verdict, of the offenses of rape, armed robbery, and attempted murder. He was sentenced to not less than five nor more than ten years for the offenses of armed robbery and attempted murder and not less than 15 nor more than 30 years for the rape. The sentences were to run concurrently.

Prior to trial, the defendant made a motion to suppress from evidence a pistol which had been seized by the police in an alleged illegal search and seizure. Herman Butler, an East St. Louis police officer, testified at the hearing on the motion that he and his partner, Officer Charles Vaughn, were on routine patrol on the night in question. In the early morning hours, at approximately 2:00 A.M., the two officers drove past a parked car. They noticed two feet hanging over the front seat of the car. Although neither Butler nor Vaughn were explicit in this regard, it is evident that they suspected that an illicit act of intercourse, or possibly a rape, might be occurring.

Both officers testified that they got out of their own vehicle and each proceeded to position himself on opposite sides of the suspect car. They asked the occupants, a man and a woman, to get out. As they were getting out, or immediately thereafter, one of the officers, by shining his flashlight into the vehicle, spotted a gun which had been resting at the foot of the defendant while he was in the back seat of the car. While Officer Vaughn entered the vehicle to seize the firearm, the defendant fled from the scene.

At the end of the hearing on the motion to suppress, the trial judge took the matter under advisement. However, the record fails to reveal any explicit or clear ruling before, or during, trial in regard to the suppression of the gun.

During the trial, both police officers were allowed to testify extensively in regard to the gun, over the strenuous objection of the defense counsel. The gun was subsequently identified, through a baHistics expert, as the weapon which had been used in the shooting and robbery of one Clan-thie Green and the rape of his female companion.

Also, during the trial, the State’s Attorney twice made reference to the fact that the defendant was charged with murder. The present proceedings charged the defendant only with “attempted” murder.

During the trial, over the objection of the defendant’s attorney, the State’s Attorney asked Officer Vaughn the following question and received a potentially prejudicial response:

“State’s Attorney: Now, Officer Vaughn, what information did you receive, sir?
Witness: I received information from Detective Tolden that Jimmie Lee Smith was wanted for investigation by our department and for parole violation.”

The defense attorney immediately moved for mistrial on the grounds that the mention of previous convictions was inflammatory and prejudicial, particularly in light of the heinous, violent character of the crimes with which the defendant was charged. The court’s response was:

“The court is not going to explain to the jury and the jury wiH not be told to disregard the statement as to why the police officers were informed to pick up this man.”

Defendant contends (1) that the trial court committed reversible error in failing to give a clear ruling before or during trial on his motion to suppress; (2) that the gun was acquired by the police officers in an illegal search and seizure; and (3) that the testimony relating to his parole status seriously prejudiced his defense.

With reference to the first contention, in People v. Guthrie, 7 Ill. App.3d 243, 248, 286 N.E.2d 627, the court said at 630:

“The trial court refused to rule on the pretrial motion when it was argued to trial, but instead reserved rulings until the evidence was offered during the trial. * * * Thus counsel was required to prepare his defense and conduct the trial not knowing whether this crucial bit of evidence was to be admitted. The motion should have been ruled on prior to trial. See People v. Pugh, 133 Ill.App.2d 168, 272 N.E.2d 742.”

With reference to tire second contention, the record in the instant case fails to reveal a clear ruling on the defendant’s motion to suppress. The clearest indication of the court’s mind is the fact that the police officers were allowed to testify at trial concerning the gun which they found, over the defendant’s continuing objections. Although the trial court should have ruled that the search of the car and the seizure of the gun was legal, it should have made its ruling prior to trial.

With reference to the third contention, we agree with defendant that the mention of his parole violation, particularly in light of the State’s Attorney’s recurring indication to the jury that the defendant was charged with murder (instead of attempted murder), was prejudicial. The defendant did not testify. In People v. Pitts, 1 Ill.App.3d 120, the court said at 123:

“In People v. Colston (1967), 81 Ill.App.2d 75, 225 N.E.2d 801, a case very similar on its facts to the case at bar, the prosecution, during its case in chief, and, after an anticipatory objection by defense counsel had been overruled, elicited testimony from a police officer that he had obtained the defendant’s address ‘from the Illinois State Parole Office.’ The court said at page 77: ‘The inferences to be drawn from this testimony are so patent as to be obviously prejudicial to defendant who did not testify, and who therefore did not open up the question of his prior criminal record as it would relate to his credibility as a witness. We consider this to be sufficient grounds for a reversal.’
We agree that the same result must accrue in the instant case.
We wish to emphasize that we weigh heavily the somewhat obvious conduct of the prosecution to elicit inadmissible testimony in the presence of the jury, in spite of the warning to the contrary by the lower court at the pre-trial hearing.”

For the foregoing reasons the defendant’s convictions are reversed and the cause is remanded for a retrial in conformity with the views expressed herein.

Reversed and remanded.

EBERSPAGHER, P. J., and CREBS, J., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    David E. Yerk, a Minor, by Martha Wierck, His Mother and Next Friend, Plaintiff-Appellant, v. Rockford Coca Cola Bottling Company, Defendant-Appellee.
    (No. 72-184;
    Second District
    June 12, 1973.

      Craig A. Ridings, of Yalden & Ridings, of Rockford, for appellant.
    Gilbert & Powers, of Rockford, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff appeals from the grant of defendant’s motion for summary judgment, and from die denial of plaintiff’s motion for summary judgment. The dismissed claim is based on section 7 of the Child Labor Act which forbids the employment of minors under the age of 16 years in certain hazardous occupations. Ill. Rev. Stat. 1969, ch. 48, par. 31.7.

It is undisputed that plaintiff was injured while illegally employed by defendant at work which was “about or in connection with power-driven machinery” (A bottle sorting machine). Plaintiff suffered injuries on September 24, 1970, during working hours in defendant’s plant when he was assaulted by a fellow, employee. The assault arose out of an incident in which a walnut was thrown at plaintiff, thrown back, with shouting, pushing, and a fight then ensuing. Plaintiff’s injuries stem from being punched in the mouth by the fellow employee. Plaintiff filed a rejection of his rights to file a claim under the Workmen’s Compensation Act, and instituted this suit. The trial court in granting summary judgment under the undisputed facts, held that the action did not lie under the Child Labor statute because the injuries resulting from the fight were not reasonably related to plaintiff’s employment.

The plaintiff, in effect, contends that the mere fact of illegal employment makes the employer liable for the injury incurred. Defendant argues that the injury must be reasonably related to the work on the dangerous machinery in the defendant’s plant; and, by analogy to the cases under the Workmen’s Compensation Act, that an assault by a fellow employee is unrelated to the employment.

The Workmen’s Compensation Act as amended (Ill. Rev. Stat. 1971, ch. 48, pars. 138.1(b) (2), 138.8(i)), encompasses claims by illegally employed minors, and forecloses actions under the child labor laws unless the minor elects, as here, to reject the Act. (Cadwell v. National Tea Co. (1951), 343 Ill.App. 206, 209.) If the minor elects to reject the Workmen’s Compensation Act, his common law remedies are preserved. (Ill. Rev. Stat. 1969, ch. 48, par. 138.5(a).) Liability can then be determined in a civil action under the Child Labor Act. Kowalczyk v. Swift & Co. (1928), 329 Ill. 308, 317.

The civil remedy under the Child Labor Act is to be interpreted in the light of the legislative purpose to protect children against the risks of working in certain employments which involve dangers the minors would probably be unable or unlikely to protect themselves against by reason of their immaturity, inexperience or heedlessness. (Gill v. Boston Store (1929), 337 Ill. 70, 73-74.) Exposure to power driven machinery was the danger against which the statute, as here applicable, sought to protect the minor. The circumstances of the injury suffered here were in no way related to that danger. Liability should therefore not be imposed.

An analysis of the cases in which recovery has been permitted under the child labor laws indicates that in each case the injury was connected with a danger inherent in the environment in which the minor was illegally placed. (E.g., Gill v. Boston Store (1929), 337 Ill. 70 (child jolted from running board of delivery truck from which he was delivering parcels); Rost v. Noble & Co. (1925), 316 Ill. 357 (child who worked at drill press and lifted heavy boxes died of strangulated hernia); Purtell v. Philadelphia Coal Co. (1912), 256 Ill. 110 (child struck by boom while working on coal dock); Beauchamp v. Sturges & Burn Co. (1911), 250 Ill. 303 (child caught hand in punch press); Strafford v. Republic Iron Co. (1909), 238 Ill. 371 (child lost arm while feeding angle-irons into straightening machine); American Car Co. v. Armentraut (1905), 214 Ill. 509 (child’s arm broken by machine he was operating); Seghetti v. B. F. Berry Coal Co. (1914), 186 Ill.App. 263 (child crushed by falling coal while working in coal mine.)) Similarly, in the cases from other jurisdictions cited by the parties the circumstances of the injury were related to the environment which the legislature must have considered unhealthy or dangerous in enacting its prohibitory statute. E.g., Inland Steel Coal v. Yedinak (1909), 172 Ind. 423, 87 N.E. 229 (boy’s foot crushed by railroad car in plant); Starnes v. Albion Mfg. Co. (1908), 147 N.C. 556, 61 S.E. 525 (dangerous machinery in factory); Ornamental Iron & Wire Co. v. Green (1901), 108 Tenn. 161, 65 S.W. 399 (falling iron fence panels); Dashinsky v. Santjer (1969), 301 N.Y.S.2d 876 (newsboy hit by car after 7:00 P.M.).

Plaintiff has urged that we adopt a rule that imposes liability if “but-for” the illegal employment the minor would not have been at the place where the injury occurred. This reasoning has been specifically rejected in Strafford v. Republic Iron Co. (1909), 238 Ill. 371, 377. And in Rost v. Noble (1925), 316 Ill. 357, 369-371, the court held that the fact of illegal employment alone is insufficient to establish causation and to impose liability under the child labor law.

While the Workmens Compensation Act is separate and distinct for purposes of liability determinations (Kowalczyk v. Swift & Co. (1928), 329 Ill. 308, 317), the reasoning used in the analogous situation of assaults reviewed under the Compensation Act seems particularly appropriate here. Compensation is proper only where it is shown that the injury arose out of some risk inherent in the conditions of employment (Belden Hotel Co. v. Industrial Com. (1970), 44 Ill.2d 253, 255), and the mere fact that an employee is present at the place of injury because of his employment is insufficient, unless the injury itself is a result of some risk of the employment. (Math Igler’s Casino v. Industrial Com. (1946), 394 Ill. 330, 337.) Under the undisputed facts the injury to plaintiff was not related to his employment about or in connection with power-driven machinery and the court properly granted defendant’s motion for summary judgment. The judgment below is therefore affirmed.

Affirmed.

GUILD, P. J., and T. MORAN, J., concur.

       “No minor under the age of sixteen (16) years of age shall be employed, permitted or suffered to work:
      1. In, about or in connection with any public messenger or delivery service, bowling alley, pool room, billiard room, skating rink, exhibition park or place of amusement, garage, filling station or service station, or as a bellboy in any hotel or rooming house or about or in connection with power-driven machinery." (Emphasis added.)


text:
    Jean Thomas, Plaintiff-Appellant, v. Yolanda Johnson, Admr., et al., Defendants-Appellees.
    (No. 72-232;
    Second District
    June 12, 1973.

      John Michela, of Petersen & Michela, of Kankakee, for appellant.
    Shapiro & Lauridsen, of Kankakee, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Jean Thomas, the plaintiff, appeals from a judgment which denied her complaint to quiet title to real estate in herself as a surviving joint tenant, and which confirmed the joint tenancy. The sole issue is whether a severance of the joint tenancy was effected by the provisions of a decree of divorce entered in the suit of plaintiff against her now deceased husband.

Jean Thomas and MitcheH W. Thomas, now deceased, were divorced on March 31, 1964. The husband did not appear and contest the divorce proceedings, but his counsel was present at the prove-up. At the time of the divorce the parties owned real estate in joint tenancy in Kankakee and Du Page Counties. The decree of divorce ordered:

“» * * that all real estate owned by the parties hereto, including that in Kankakee and Downers Grove, IH., shaU be sold and the net proceeds thereof, divided, equally, between the parties hereto."

It was further ordered that the plaintiff waive alimony and that each of the parties pay his or her own attorney’s fees.

On April 8, 1964, plaintiff and Mitchell W. Thomas executed separate deeds conveying the Kankakee property to the named purchasers. Each deed recited the conveyance of an undivided one-half interest.

Mitchell W. Thomas died testate on March 26, 1967. AH of his property was bequeathed to one Margaret McCarthy. Plaintiff thereafter filed this action to quiet title to the Du Page County real estate which remained unconveyed, claiming the property entirely as the surviving joint tenant.

Margaret McCarthy died intestate on February 25, 1970. Her administrator was substituted and her sole heirs-at-law were added as party defendants.

No testimony was taken in the hearing below. The evidence consisted of the deed creating the joint tenancy in the Du Page County real estate dated May 3, 1952, the divorce decree, the report of proceedings of the divorce hearing, and the deeds conveying the Kankakee real estate. On this evidence the court held that the joint tenancy had been severed and that the defendants who claimed through the deceased, Mitchell Thomas, were entitled to an undivided one-half interest in the disputed property.

Both parties agree that a divorce alone is insufficient to effect a severance of joint tenancy real estate. Plaintiff contends, however, that the divorce decree was not based upon a settlement agreement and that the language of the decree did not amount to a partition but merely stated the equitable and relative rights of the parties without providing for the mechanics of carrying out a sale of the property. Defendants assert that the divorce decree embodies a settlement agreement which became absolute when not appealed. They also contend that the joint actions of the parties in making the conveyances of the Kankakee real estate ap- I parently in accordance with the decree further indicates that the parties had agreed to a severance.

Based on the record before it, the trial court could reach no other conclusion than that the decree embodied the terms of a settlement agreement. In the divorce proceedings the plaintiff was specifically asked whether she had entered into a property settlement which she wanted the judge to approve and answered “Yes”. The court concluded the divorce hearing with the statement on the record:

“Divorce is granted to the plaintiff; the terms of the written agreement may be incorporated in the decree.”

While the proceeding was in the nature of a default, counsel for the deceased was present and did not object to the testimony concerning the settlement. In addition, the decree recites a waiver of alimony which was indicative of a settlement. The agreement settling property rights thus became merged in the decree. Cunningham v. Lawrence (1959), 16 Ill. 2d 201, 207.

It is clear then that an agreement between joint tenants to hold as tenants in common will sever an existing joint tenancy; and such agreement may be inferred from the manner in which the parties deal with the property, treating their interests as belonging to them in common. Duncan v. Suhy (1941), 378 Ill. 104, 109.

The manner in which the parties dealt with the Kankakee property does not create an inference that the parties mutually treated their interests as belonging to them in common rather than as joint tenants; but neither is it inconsistent with that interpretation. Nor does a countervailing inference arise from the failure to dispose of the Du Page County property. The essential question is whether under all the circumstances the agreement that the property, “* # * shall be sold and the net proceeds thereof, divided, equally, between the parties * * #” states an intent to effect a severance.

We conclude from the language of the decree and the relevant circumstances disclosed in the transcript of the divorce hearing that the parties intended a division of the property and were not merely stating the relative rights to it. The agreement contemplated a sale as soon as feasible. The decree unconditionally ordered the sale to take place and the proceeds to be divided equally. In effect, the language of the decree states an intention to voluntarily partition the property, and to therefore destroy the unity of the title. It would seem a natural assumption in the absence of clear language to the contrary or any evidence inconsistent with this view of the settlement provisions that the parties, seeking to partition their jointly held property in the context of a divorce proceeding would intend to sever the joint tenancy, rather than leave valuable property to the other. See Wardlow v. Pozzi (Cal.App. 1959), 338 P.2d 564, 566; Rich v. Silver (1964), 37 Cal.Rptr. 749, 751.

Duncan v. Suhy (1941), 378 Ill. 104, cited by plaintiff, is not authority for a contrary conclusion here. In Duncan, there was no provision that the joint tenancy property be sold, and, in fact, the agreement did not refer to joint tenancy property but merely relinquished rights arising under the marriage laws. Thus the statement that each party should retain his or her half interest in the “home place” and in case of sale by agreement of both parties, the net proceeds should be divided equally, did no more than state the shares of each party in the property.

We further conclude that the performance of the agreement to sever the joint tenancy prior to the death of Mitchell W. Thomas was not necessary to effect the severance. An agreement to sever itself operates to effect a severance, and the intervening death of one of the joint tenants will not defeat the severance even though the agreement is not performed. (Cunningham v. Lawrence (1959), 16 Ill.2d 201, 207; Duncan v. Suhy (1941), 378 Ill. 104, 109.) The further contention of the plaintiff that the severance could not occur until the orders necessary to carry the decree into effect were entered and complied with and an actual conveyance made has been answered to the contrary by Schuck v. Schuck (1952), 413 Ill. 390. Also, contrary to the contention of the plaintiff, the court retained the necessary power to enforce the terms of the decree even though the specific mode of division was not stated. Vinci v. Vinci (1970), 131 Ill.App.2d 496, 500-501.

The trial court properly held that the joint tenancy in the property in question was severed by the settlement agreement merged in the divorce decree. The judgment below is therefore affirmed.

Affirmed.

GUILD, P. J., and T. MORAN, J., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tafford Holman, Defendant-Appellant.
    (No. 72-312;
    Third District
    June 13, 1973.

      Illinois Defender Project, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet, for the People.
   PER CURIAM:

Defendant Tafford Holman was charged in an information with the offense of armed robbery. On November 12, 1970, he appeared with his attorney before the Circuit Court of Will County. He waived indictment and entered a plea of guilty to the charge of armed robbery. His plea was accepted and following the conviction he was sentenced to a term of from three (3) to seven (7) years in the Penitentiary in compliance with a plea negotiation and a recommendation of the State’s Attorney.

After his conviction and sentence, on January 20, 1972, defendant filed a petition for post-conviction relief under the provisions of the Illinois statute (Ill. Rev. Stat. 1971, ch. 38, § 122 et seq.). In the petition defendant alleged that the sentence was illegal and without authority of law in that the minimum exceeded one third of the maximum sentence which was imposed upon him. On February 17, 1972, defendant, by his attorney, filed an amended petition for post-conviction relief and in such petition alleged that his sentence violated the due process clause under the United States and Illinois constitutions for the reason that the minimum sentence exceeded one third of the maximum sentence imposed.

The trial court denied relief requested and dismissed defendant’s petition. Following the filing of the notice of appeal, the trial court appointed the District Defender of the Illinois Defender Project to act as counsel on appeal for defendant. Appellate counsel has now filed in this court a motion for leave to withdraw and a brief in support thereof, pursuant to the precedent in Anders v. California, 386 U.S. 738. Appellate counsel indicates that after careful examination of the record in the cause before us and a thorough consideration of every possible issue, appellate counsel has concluded that an appeal would be wholly frivolous and could not possibly be successful.

We note from the record, that prior to pronouncing sentence in the cause before us, the trial court had been informed that defendant had previously been convicted in 1968 for reckless conduct in violation of the firearms act and had received two, one (1) year concurrent sentences by reason thereof. As we have indicated also the sentence in this case resulted from a negotiated plea of guilty to a charge of armed robbery. Defendant was fully advised as to all negotiations and the arrangement which was to be made and which was in fact carried out by the Circuit Court of Will County. The minimum sentence of three (3) years imposed was only one (1) year greater than the statutory minimum that was in existence at the time of sentencing (Ill. Rev. Stat. 1971, ch. 38, § 18 — 2(b)).

The Post-Conviction Relief Act was intended to provide a remedy for a substantial denial of constitutional rights. Defendant here claims only that the sentence violates due process of law because the minimum exceeds one-third of the maximum sentence imposed. In People v. Murry, 5 Ill.App.3d 64, 283 N.E.2d 98 (1972), a defendant had appealed from a denial of post-conviction relief. Defendant in that case also had complained of the severity of his sentence. The appellate court in that case stated that a claim of undue severity of sentence is not within the scope of an inquiry permitted in the post-conviction relief proceeding. The defendant’s sentence argument presented no constitutional question appropriate for post-conviction relief and for this reason alone defendant’s petition was correctly dismissed by the trial court.

While the Code of Corrections is applicable to cases on appeal it would not be helpful to defendant in this case. The Code of Corrections actually provides for a minimum sentence in excess of the three (3) year minimum imposed in this case and the Code also does not require a one to three ratio between the minimum and maximum sentence for a Class 1 felony (armed robbery). (Ill. Rev. Stat., 1972 Supp., ch. 38, §1005 — 8 — 1(c)(2).) We have also examined the record and agree with counsel that no issues which could possibly be successful on appeal are disclosed by the record. A criminal prosecution can be commenced by information and this was properly done in the instant case and properly supported by affidavit stating the name of the offense, the statutory provision violated, the nature and elements of the offense, the date and county of the offense, and the name of defendant. Ill. Rev. Stat. 1971, ch. 38, § 111 — 3.

In the cause before us, defendant was represented by counsel and waived indictment in open court. The court personally addressed defendant following such waiver and informed him adequately and determined that he understood the nature of the charge, the minimum and maximum sentences, that he could be prosecuted for the offense only after indictment by the Grand Jury, and otherwise adequately informed defendant in accordance with the statutes. The trial court found, as shown by the record, that the waiver was made “knowingly and understanding!/’ so that there was compliance with Supreme Court Rule 401 and there was also substantial compliance with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, §§ 401 and 402).

The court did not specifically admonish defendant that he was waiving a bench trial but he was admonished that he was waiving his right to a jury trial. The admonition dealing with the waiver of the right to a jury trial comprehends advice and understanding of the waiver of the right to a trial of any kind. People v. Wallace, 48 Ill.2d 252, 269 N.E.2d 482; People v. Charles, 2 Ill.App.3d 452, 277 N.E.2d 348.

After a complete examination of all of the proceedings in this cause, we conclude that appellate counsel was correct in the motion filed in this court. We, therefore, conclude that an appeal in this case would be wholly frivolous and that the judgment of the circuit court of Will County should be and will be affirmed, and that there was adequate compliance with Anders v. California, 386 U.S. 738.

This cause is, therefore, affirmed. The motion of counsel for appellant to withdraw is hereby allowed.

Affirmed.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mike Young, Defendant-Appellant.
    (No. 72-172;
    Third District
    June 18, 1973.

      Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Gerald Serritella, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

After a jury trial in the Circuit Court of Peoria County, the defendant, Mike Young, was convicted of aggravated battery. On Oct. 2, 1970 he was sentenced to a term of one to three years. A timely notice of appeal to the Supreme Court was filed, however, on March 29, 1972 the Supreme Court ordered the appeal dismissed for failure of appellant to file the record, abstract, or brief. Defendant had private counsel but did not pay him. On a showing of indigency this court appointed the Defender Project and on July 11, 1972 granted Appellant’s motion to file Late Notice of Appeal over objection of the People.

Defendant has raised two issues, the first that he was not proven guilty beyond a reasonable doubt because he says the prosecution’s own witness contradicted the fact that defendant was involved in the attack on the victim and the second that the indictment is fatally defective.

Early on New Year’s morning of 1970, fighting broke out inside of the American Legion Hall in Peoria and the fighting spilled out into the street. Officer Ronald Howett responded to a call to the police and arrived at the scene. After he had been there 5 or 10 minutes he was attacked and beaten by a group of seven or eight people. He testified that he was grabbed, spun around, kicked, hit on the forehead with some object, cut on the face, and pushed to the ground. Howett stated that he had known the defendant for several years and recognized Young as one of the people who kicked him and pushed him to the ground.

Officer William Bradley, an off duty Peoria Park Policeman testified that he was in the area and drove over to the American Legion to see what the trouble was. He jumped out of his car just after Howett jumped out of his. He saw the group of people pushing and shoving Officer Howett. He recognized three of the shovers among whom was the defendant whom he had known for 10 years or more. He saw him push Officer Howett to the ground and when Officer Howett went to get up he had his night stick out and Mike Young then said,“Mother sucker [sic] , what are you going to do with that night stick?” Officer Howett got up and was pushed to the ground again. Officer Howett was in uniform and had his badge on. Bradley did not see defendant do anything else. Bradley ran to the American Legion for help. He met Sergeant Walker and Officer Irving there and told them what happened. He was away from the scene about two or three minutes. The three came back and. arrested Mike Young, Mike Lilly and another. On cross-exam Bradley further stated that Officer Rushman was at the corner with another group. When he observed the action testified to on direct he was close enough to touch Officer Howett. He did not see anyone strike or cut Howett but did see someone kick him. The kicker was not Mike Young. When he got back to the scene with Sgt. Walker, Officer Howett was on the hood of a car bleeding. On re-direct he testified that lighting conditions were good — street lights on all corners and a big light in front of the Legion. The incident occurred at the south comer across the street from the Legion.

Frank Rushman, a Peoria city police officer, was on duty and was sent to the scene because of the earlier melee. When he got to the scene about 150 people were milling in the area. There were several fights going on. He saw two police officers in a group about 30 feet from where he parked. He knew Mike Young and saw him in the area of two police officers who were Sgt. Funcannon and Terry Fonders. Rushman then walked to his car, got in, looked into the rear view mirror and saw a scuffle. On getting out of the car saw Officer Howett involved and ran to his assistance. When he was running toward the action, the entire group around Officer Howett all ran from the area. He did not see Mike Young — they all had their backs turned, running. He did not see the details of what happened to Officer Howett. He helped him when it was over. When he got to Officer Howett, Howett pointed out Mike Lilly and said Lilly was responsible. He did not mention Mike Young. (Officer Howett, who testified later, said Rushman had asked who ■ cut him. Howett then pointed out Lilly and said, “he is the one.”)

Both defendant and his friend Sam Russell testified that they were together while the incident was taking place and did not arrive at the scene of the attack until it was over. Another defense witness and friend of defendant said she saw the attack from across the street and that Mike Young was not among the attackers; that she had no way of knowing whether he wás in the group as she did not see him.

Defendant argues that Officer Rushman’s testimony presents the conflicting testimony of two police officers, that Rushman’s testimony indicates that Young was not in the group, and leaves the prosecution’s conflicting testimony standing alone against the denial of the defendant.

This argument is not supported by fact. The testimony of Officers Howett and Rushman is not in conflict. Rushman saw Mike Young in the area minutes before the attack. Howett said Mike Young had left when. Rushman came to help him. Rushman testified that all the attackers were running away, with their backs toward him. In fact, Rush-man corroborates Howett on all points which he had an opportunity to observe. Defendant cites People v. Jefferson, 24 Ill.2d 398; People v. Johnson, 270 N.E.2d 130 and People v. Neidhofer, 126 Ill.App.2d 65.

In Jefferson, the victim was unable to identify the defendant, two other witnesses were only given a two man line-up, the State had disclaimed that a ring found near defendant in an apartment raised an inference that defendant put it there; opposed to alibi testimony and testimony of one who gave a detailed account of the robbery and said that defendant was in no way involved. The issue was one of identification. In the instant case the defendant was well known to the victim, the issue is one of credibility of witnesses, not identification.

In Johnson, the victim did. not cry rape even after three interviews with the police and not until the next day. On an aggravated battery count the victim testified that when a car came down the alley the defendant and another started to run with her, striking her while running. The automobile was a police car and the occupants, two police officers, each testified that they saw np beating. The court found that the police testimony corroborated the testimony of the defendant who also had two character witnesses. There is no way. that the Johnson case can be applicable to the instant case.

In Neidhofer, one witness, who talked to the. defendant while two or three feet from him, did not see any exposure. Her sister did and defendant denied it. The court simply held that the evidence was not sufficient to establish guilt beyond a reasonable doubt.

The credibility of witnesses and the weight to be given to their testimony is generally better left to the trier of fact who sees and hears the witnesses and' their decision should be disturbed by the reviewing court only in those exceptional cases where the credible evidence is not sufficient to remove all reasonable doubt of guilt or unless the evidence is so improbable or unsatisfactory as not to be worthy of belief. In the instant case the jury obviously considered the testimony of the People’s witnesses as true. Accepting that finding, it must be said that the evidence is sufficient to establish defendant’s guilt beyond a reasonable doubt and is not of such an improbable or unsatisfactory nature as would warrant a reversal. See I.L.P. Criminal Law, sec. 911.

The indictment in the instant case charged the defendant in one count with “causing great bodily harm to Ronald Howett, known by the said Mike Young to be a peace officer engaged in the execution of his official duties * * The statutory citation on the indictment was to Sec. 12 — 4. By having the word “great” describe “bodily harm” the indictment combined the requisite elements of aggravated battery as specified in both sec. 12 — 4(a) and sec. 12 — 4(b)(6).

The case was tried from beginning to end and the only issue ever presented was “causing bodily harm to Howett by Young while Young knew Howett to be a police officer, engaged in the execution of his official duties”. I.e., sec. 12 — 4(b)(6). At no time did defendant ever mention any surprise or confusion, nor did he object or ask for clarification. He, on appeal, now contends that the People should be held to what they charged in the first place and that since they did not prove “great bodily harm”, but only “bodily harm” there was error.

It is the rule of many courts that where a thing necessary to be mentioned in an indictment is described with unnecessary particularity, the unnecessary particulars of the description cannot be treated as surplusage and must be proved; and this rule has been extended to unnecessary words which describe the words which need to be inserted to describe the offense. (41 Am.Jur.2d Indictments and Informations, sec. 73.) However, Illinois is not among those courts. As early as Durham v. People, 5 Ill. 172, our Supreme Court laid down the rule that whenever an averment could be stricken- out without vitiating the indictment, it might on the trial be treated as surplusage and rejected. See People v. Boer, 262 Ill. 152, 154; 21 I.L.P. Indictments and Informations, sec. 58; People v. Rogers, 303 Ill. 578; People v. Johnson, 360 Ill. 605; People v. Taranto, 2 Ill.2d 476; People v. Radford, 81 Ill.App.2d 417; People v. Simpkins, 48 Ill.2d 106.

It follows that the failure to prove the allegation did not prejudice defendant and does not warrant reversal. People v. Taranto, 2 Ill.2d 476.

The People contend that this court has no jurisdiction in that the granting of Late Notice of Appeal was improvidently allowed. Because of our view of the case it is unnecessary to consider that contention,

The judgment of the Circuit Court of Peoria County is affirmed,

Judgment affirmed.

STOUDER, P, J., and SCOTT, J,, concur.


author: Mr. JUSTICE TRAPP

text:
    Kenneth Morrow, Plaintiff-Appellee, v. William Hoskins et al., Defendants-Appellants.
    (No. 11781;
    Fourth District
    June 13, 1973.
    William Hoskins, pro se.

    Charles Clayton, of Bloom & Clayton, of St. Louis, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

On January 20, 1970, the plaintiff filed a small claim action against the defendants in the amount of $981.91. The defendants later filed a counter-claim in the amount of $2080. The defendants appeal from a default judgment entered against them on July 8, 1971, after evidence was heard upon the plaintiff’s claim.

Defendants initially contend that the trial court had no jurisdiction due to the nonresident plaintiff’s failure to file security for the defendants’ counter-claim with the clerk of the court. However, there is no requirement that a nonresident plaintiff post security to cover a counterclaim. Ill. Rev. Stat. 1971, ch. 33, par. 1, requires nonresident plaintiffs to file security for costs, not counter-claims, before instituting suit. Moreover, failure of a nonresident plaintiff to post security for costs does not affect a court’s jurisdiction. Federal Insurance Co. v. Ainsworth (1961), 31 Ill.App.2d 19, 175 N.E.2d 804.

Defendants also contend here that they are entitled to a new trial because their failure to appear on the date that the default judgment was entered against them was due to illness. The record shows that on June 30th, the trial judge advised by personal letter of the trial setting on July 8th. Without more, defendants failed to appear. The claim of illness is first made in the notice of appeal. Defendants filed neither a motion under Ill. Rev. Stat. 1971, ch. 110, par. 50(5), providing for vacation of default judgments within 30 days after entry thereof, nor a petition under Ill. Rev. Stat. 1971, ch. 110, par. 72, providing for relief from final judgments after 30 days from their entry.

The judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    Paul H. Hulse, Plaintiff-Appellant, v. Midwest Emery Freight System, Inc., Defendant-Appellee.
    (No. 11927;
    Fourth District
    June 13, 1973.

      Robert W. Cook and Schmiedeskamp, Jenkins, Robertson & House, both of Quincy, for appellant.
    J. Robert Walden, of Mays & Walden, of Quincy, for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The plaintiff leased a tractor and a refrigerated semitrailer to the defendant freight company. The contract or lease agreement provided that the plaintiff was to furnish a driver With the equipment and was to pick up and deliver loads as directed by the defendant. Under a heading entitled “Costs of Operation”, the contract provided that the plaintiff would pay all costs of operation which may include, but was not limited to, maintenance, repairs, payments of injury or damage to the operator driver ánd helpers and to the equipment, whether the same occur while operated in service of the defendant or otherwise.

While hauling property in a new 1965 Lufkin semi-trailer pursuant to the contract, plaintiff’s tractor broke down. Plaintiff called the defendant for instructions. The defendant sent an employee with a tractor of the defendant to haul the trailer and its cargo of refrigerated beef to its destination. The employee of the defendant drove the unit off the highway and the semi-trailer was substantially damaged. Essentially, these facts, including the fact of substantial damage, were stipulated between the parties.

In tihis action by plaintiff to recover the damages from the defendant, the trial court in a bench trial entered judgment for the defendant holding that the terms of the contract were operative and placed the burden of the damage to the equipment on the plaintiff. The court found that the damage was occasioned by an act of a person furnished by the defendant to complete a task which the plaintiff set out to do in pursuance of the contract. The express language of the contract does not suggest that it was the intention of the parties that damage to the equipment “while operated in the service of the defendant” would be an obligation of the plaintiff if the damage was occasioned by the conduct of the defendant. Thus, under the usual rules of construction, this loss caused by the defendant becomes its responsibility.

If, as is argued, the contract terms constitute a hold harmless agreement or an exculpatory agreement, the same result obtains. In Tatar v. Maxon Construction Co., Inc., 3 Ill.App.3d 352, 277 N.E.2d 715, aff’d. 54 Ill.2d 64, 294 N.E.2d 272, we observed that exculpatory clauses in contracts or language in contracts whereby a tort feasor seeks to excuse or transfer liability for his own wrongful or tortious act were not favored and such would be strictly construed. The operative language in this agreement under such construction does not obligate the plaintiff to pay for damages to the trailer occasioned by the defendant. Rather, the contract language relates to the obligation of the defendant to pay routine costs and damage to the equipment. Such cannot be construed as to be an undertaking by the plaintiff to exculpate the defendant from its own tortious conduct nor intentionally inflicted damage. (See Leach v. Eychaner, 1 Ill.App.3d 327, 273 N.E.2d 55; Moss v. Hunding, 27 Ill.App.2d 189, 169 N.E.2d 396.) The trial court was in error in its finding that the contract provision was applicable and barred plaintiff’s recovery. The judgment entered for the defendant based solely upon that finding must be reversed.

Upon the issue of damages, a witness, Glenn Selph, testified for the plaintiff and stated that the damages to the trailer amounted to the sum of $13,247.41 plus $175 for state and county taxes applicable at the place of repair, which in this instance was Texas. This statement as to the damages was an estimate described as an “agreed evaluation”. Agreed evaluation in the context used in this testimony meant that the witness determined the damages in conjunction with the foreman of the shop where the repairs would be made and that the repairs would be made at the figure thus ascertained. Objections to proof of damages by estimate of costs of repairs were not specifically made. Rather,, an objection was made at one point on the grounds of hearsay and at another point an objection was made that an estimate was inappropriate to establish damages until it was shown that the vehicle was, in fact, reparable. Counsel for the defendant cross-examined this witness at length and in detail as to the damages. Under the circumstances here found, the testimony of the witness Selph, who was qualified and testified as an expert, was admissible to prove damages. Lucas v. Bowman Dairy Co., 50 Ill.App.2d 413, 200 N.E.2d 374; 22 Am.Jur., Damages, par. 334; Hartford Deposit Co. v. Calkins, 109 Ill.App. 579.

The judgment of the circuit court of Pike County is reversed and this cause is remanded to that court with directions to enter judgment for the plaintiff in the sum of $13,422.41.

Reversed and remanded with directions.

TRAPP and SIMKINS, JJ., concur.


text:
    Alton and Southern Railway Company, Respondent-Appellant, v. The Pollution Control Board, Complainant-Appellee—(Harshany Incorporated et al., Respondents-Appellees.)
    (No. 72-329;
    Fifth District
    June 4, 1973.
    Walker and Williams, of Belleville, (Harry J. Sterling, of counsel,) for appellant.
    William J. Scott, Attorney General, of Springfield, (Thomas J. Immel and Dale R. Turner, Assistant Attorneys General, of counsel,) for ap-pellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The Environmental Protection Agency filed a complaint against Har-shany, Inc. and others, including the Alton and Southern Railway Company charging open burning of automobiles. After a hearing a penalty of $1,000 was assessed against Harshany, Inc. and Alton and Southern jointly. The Alton and Southern filed a petition for review.

The evidence established that for many years Peter Harshany, operating as Harshany, Inc., had conducted an auto salvage operation. Part of his operation was on land which he owned, part on land leased from Alton and Southern and part on unleased Alton and Southern right-of-way. There was evidence that fires occurred on March 10, 1971, June 9, 1971, June 18, 1971 and March 3, 1972.

Both March fires occurred on the Harshany owned land and hence are not involved in the case against Alton and Southern. There was some question whether work done on the unleased Alton and Southern right-of-way was by Harshany or persons working in connection with him that he described as “contractors”. At any rate, auto salvage work was done on the right-of-way by persons who were trespassers over a period of time of sufficient fength that Alton and Southern would be presumed to have had notice that such work was being done. There was also evidence that deliberate burning of junk autos had taken place on this property in the past but these occurrences were not identified as to time and thus such burning is not definitely shown to have occurred subsequent to such action being prohibited.

Fires are shown to have occurred on June 9 and June 18, 1971 on this tract. The representative of the Environmental Protection Agency was not able to determine the cause of these fires. Mr. Harshany testified that the fires were accidental.

Even if we assume that the fires of June 9th and 18th constituted violations under the act, these are the only violations shown to have occurred on Alton and Southern land. With no evidence in the record showing actual notice of violations, we cannot assume notice from these two occurrences just a few days apart.

From the fact that Alton and Southern may be presumed to know that salvage operations were being conducted on their land, it does not follow that they may be presumed to know that the operations were being conducted illegally.

For the foregoing reasons the decision of the Illinois Pollution Control Board as to the Alton and Southern Railway Company is reversed.

Reversed.

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


author: Mr. JUSTICE JONES

text:
    Sylvia M. Novak, Exrx. of the Estate of Rudolph Novak, Deceased, et al., Plaintiffs-Appellants, v. Olinkraft, Inc. et al., Defendants-Appellees.
    (No. 72-150;
    Fifth District
    May 31, 1973.
    Dennis A. McGrady, of Gillespie, for appellants.
    Oehmke, Dunham, Bowman & Leskera, of East St. Louis, and Droste & Droste, of Mt. Olive, (Allen D. Churchill and Robert L. Droste, of counsel,) for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiffs appeal from a jury verdict of not guilty, contending that the trial court erroneously instructed the jury by submitting IPI instructions on a joint venture defense, and that the verdict of the jury was contrary to the manifest weight of the evidence on the point of the existence of a joint venture.

Because of the result which we reach, it is not necessary to detaH the circumstances of the evidence with respect to the existence of a joint venture. The jury returned a general verdict. From the general verdict it is not possible to determine the basis on which the jury may have arrived at a verdict. The possibHities which exist include at least the following:

1. That they found that a joint venture existed so that negligence was imputed.
2. That they found no liability against the defendants.
3. That the only fault was negligence on the part of the driver of the vehicle occupied by plaintiffs’ intestates.
4. That the plaintiffs failed to meet the burden of proof with respect to neghgence or proximate cause.

The plaintiffs did not make a motion for a special interrogatory on the question of joint venture. The plaintiffs did not make a motion to strike or to withdraw from the jury the consideration of the question of joint venture, nor did they otherwise comply with the provisions of section 68(4) of the Civil Practice Act (Ill. Rev. Stat., ch. 110, sec. 68(4)). In order to preserve the claim which they now make, some action was necessary on the part of the plaintiffs prior to the jury’s consideration of the verdict.

The plaintiffs did not object in the conference on instructions to the giving of the instructions presenting the question of joint venture. The plaintiffs claim that the argument made by their attorney in answer to the motion by one of the defendants for a directed verdict constitutes a sufficient objection to preserve their point. The trial judge did not direct a verdict, and therefore, the argument of the plaintiffs was not of necessity overruled, indicating any abiding decision on the part of the judge to present the joint venture question to the jury. Accordingly, we are not persuaded that the comments of the plaintiffs’ attorney sufficiently preserved this point against the failure to object to the instructions. Under the rule in Barrett v. Fritz, 42 Ill.2d 529, 248 N.E.2d 111, and many other cases, a party waives his objections to instructions if he does not make objections at the time of the conference on instructions.

In essence, plaintiffs’ argument is that the evidence of joint venture fads as a matter of law to raise a submissible question. In effect, the plaintiffs seek to excuse the fafiure to object upon this ground by claiming that the verdict of the jury is against the manifest weight of the evidence on this point, and therefore a new trial should be allowed, based upon the manifest weight of the evidence, when this point was raised for the first time in the post-trial motion. We do not believe that a party should be allowed to permit this evidence to be presented, to permit the jury to be instructed on the point, and then complain if the verdict is against the plaintiffs. At this point, various presumptions and intendments come to the aid of the verdict, such as the presumption that the general verdict is based upon evidence that supports it. (See Woolsey v. Rupel, 13 Ill.App.2d 48, 140 N.E.2d 855.) Accordingly, we cannot conclude that the verdict must stand or fall solely upon the basis of the weight of the evidence relating to the joint venture question.

Judgment affirmed.

EBERSPACHER, P. J., and CREBS, J., concur.


text:
    Trailmobile Division of Pullman, Inc., Plaintiff and Counterdefendant-Appellant, v. Leonard Higgs et al., Defendants and Counterplaintiffs-Appellees.
    (No. 72-170;
    Fifth District
    May 31, 1973.

      Charles W. King, of King and Naegler, of Edwardsville, for appellant.
    James J. Gomric, of Belleville, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff-appellant sued to recover a balance of $2,110.45 owing on a trailer salé from defendants. The defendants counterclaimed, apparently basing their action on strict liability after the fashion of Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182. The court found in favor of the counterplaintiff, fixing damages in the amount of $3,031.05. The appeal is from the judgment on the counterclaim, the plaintiff contending that the proof on the counterclaim was insufficient and that the court applied the improper rules in measurement of damages.

No question is raised in this court but that strict liability extends to include claims for property damage. Accordingly, we will not raise this point ourselves but will pointedly note that we do not address the question. Both parties have advised us that liability on the counterclaim is based upon strict liability, although there was some mention at the trial of matters of warranty. We will consider this case only on the basis on which it is presented to us by the parties.

With respect to the adequacy of the evidence to prove counterplain-tiff’s claim, the only contention of the plaintiff is that there was no evidence that the allegedly defective condition of the product relied on existed at the time the trailer left the hands of the manufacturer, Trail-mobile. It is the evidence of the counterplaintiff, without contradiction, that he ordered a trailer from the plaintiff, that the trailer was picked up by counteiplaintiff’s driver, that he agreed by execution of the chattel mortgage that he had inspected the unit, agreed it was in good working order, and agreed to provide and pay for all repairs and maintenance, that the truck was operated over the road for a year, carrying loads up to 40,000 pounds, that it was inspected regularly and afforded no difficulty during the year, that he examined the racks and weld, that he was not an engineer, had no concern about the weld, and it looked all right. While being operated upon the highway the tire rack, which had been welded on, came off, striking portions of the trailer, and causing damage. The sole direct evidence was the statement of the counterplaintiff, “The spare tire rack came loose because the welds broke.” It was the personal theory of the counterplaintiff that plaintiff was obliged to repair the rack and all other damage which occurred in the incident. Accordingly, he took the trailer to a Trailmobile office and dropped it off, ceased making payments, and waited for their action until Trailmobile repossessed the trailer.

Although this case approaches very close to the bare minimum, the trial judge as trier of fact had circumstantial evidence from which he could find that there was evidence which tends to prove that the product failed to perform in the manner reasonably to be expected in the light of its nature and intended function, as set forth in our decision in Bollmeier v. Ford Motor Co., 130 Ill.App.2d 844, 265 N.E.2d 212, and under the terms of Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, 247 N.E.2d 401. We are able to arrive at this conclusion only upon the very narrow nature of the controversy as submitted by the parties.

It is apparent, however, that the trial court misconceived the proper rule on the measure of damage. In its judgment order the trial court rendered judgment in favor of plaintiff Trailmobile on its complaint in the amount of $2,110.45, which was the balance due on the purchase contract. The court further rendered judgment in favor of defendants-counterplaintiff on his counterclaim against Trailmobile in the amount of $5,141.50. By offsetting plaintiff’s judgment on its complaint the court rendered judgment in favor of defendants-counterplaintiff for $3,031.05. In assessing damages upon the counterclaim the court apparently used as the measure of damages the cost to the counterplaintiff of rental of a substitute trailer for a period of two years. Counter-plaintiff produced no evidence regarding the repairability of the trailer, the cost of repair or evidence of the value of the trailer after repair’s. Neither is it apparent whether any consideration was given to the question of mitigation of damages. The measure of damages for a repairable injury to personal property is ordinarily the cost of making the repair and the value of the use of the property while the owner is necessarily deprived of it by reason of the repair. If the property is worth less after it is repaired than its value before the injury, the measure of damages is the difference in the market value before the injury and in its repaired condition in addition to the reasonable cost of repairs. Where, however, the property cannot be economically repaired the measure of damages is the difference between the market value of the property before the injury and the value of the wreckage. Janicek v. Szmitke, 48 Ill.App.2d 214, 198 N.E.2d 694; Central Illinois Light Co. v. Stenzel, 44 Ill.App.2d 388, 195 N.E.2d 207; Traut v. Horace L. Winslow Co. (abstract opinion), 201 Ill.App. 83; I.L.P. Damages, sec. 144.

The judgment finding liability on the counterclaim is affirmed and the cause is remanded to the trial court for proof and assessment of damages in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

EBERSPACHER, P. J., and CREBS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Johnson et al., Defendants-Appellants.
    (No. 71-18;
    Fifth District
    June 1, 1973.

      Kenneth L. Jones, of Defender Project, of Mt. Vernon, (J. Earl Crisel, Senior Law Student, of counsel,) for appellants.
    Robert H. Rice, State’s Attorney, of Belleville, (George S. Dzielak, of Circuit Attorney Project, of counsel,) for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendants were indicted for the crimes of attempted murder and attempted armed robbery. Upon trial by jury they were found guilty of attempted murder and guilty of attempted armed robbery and were sentenced to penitentiary terms of three to seven years. Defendants appeal contending that they were not proven guilty beyond a reasonable doubt and that the trial court committed prejudicial error in admitting into evidence a .38 caliber Colt revolver.

The incident in question occurred on November 4, 1969 at about 11:30 A.M. at an East St. Louis currency exchange. The employees and the manager were present along with a patron, Mr. Rule. Although there is some discrepancy it may be considered well established that two men came into the currency exchange and were engaging in conversation. One of the employees asked one of the men, later identified as defendant Johnson, if she could help him and he replied that he was waiting for his mother. After several minutes a third man entered brandishing a pistol, he advanced to the cashier’s window and announced a stickup and told the manager not to sound any alarm. The employee at the window dropped to the floor and the manager proceeded to sound an alarm by pressing a button under the cashier’s counter. With this the gunman advanced directly to the manager’s window and at point blank range fired directly at the manager. Fortunately the bullet was deflected by bulletproof glass. The gunman and the other two present in the exchange fled immediately after the gunshot. One of the employees positively identified defendant Johnson as one of the two present in the exchange immediately prior to the incident.

The patron, Mr. Rule, could not identify either defendant as being one of the three men involved. When the third man came in with the gun and announced a stickup, Mr. Rule left. He saw the pistol in the hand of the third man. As he got outside he heard a gunshot and saw the three men come running out of the exchange together, off across one parking lot and commencing to cross another parking lot when he lost sight of them.

The manager of the exchange testified to the shooting but was unable to identify any of the participants.

A fiUing station owner testified that his business was approximately a block from the currency exchange and that there is a parking lot in conjunction with his station. On the day in question three men drove into his station in a 1955 pink and white Ford and asked if they could park in the adjacent lot. Upon being told “no” they drove their car a short distance away and parked it beside a building occupied by Goodwill Industries, backing their car into the parking space so that the front was facing the street. He saw the men leave the car. Shortly afterwards he saw two men come running through his parking lot at a pretty good speed. They ran toward the pink and white Ford. He also saw a police car slowly approaching. The police car stopped near the pink and white Ford and the policemen got out of the car with their pistols drawn. Shortly thereafter he heard shots being fired from the rear of the Goodwill building. Although he was not positive of his identification he thought the shortest of the men, defendant Irby, looked like the man that had previously asked permission to park the pink and white Ford.

It was the testimony of Officer Barnes that at the time and place in question he was in an unmarked patrol car on routine patrol near the currency exchange when he and his fellow officer saw three men running from the currency exchange. The officers took up pursuit and observed the three in flight from the time they left the currency exchange until they arrived at the pink and white Ford parked at the Goodwill Industries building. Officer Barnes described the three as young men running at a fast rate of speed. He had them in plain sight from the time they left the currency exchange. When the three arrived at the Ford they attempted to get in but the officers pulled up and announced that they were police officers. The three men then fled together toward the back of the Goodwill building. Officer Barnes pursued the men around the back of the building while his fellow officer went around the other direction. One of the men stopped and commenced firing a pistol at Barnes who returned the fire. The other two men continued around the building. Approximately one to one and one-half minutes later Barnes returned to the front of the building and his fellow officer had the other two men in custody. These two were positively identified by Barnes.as defendants Johnson and Irby and as being two of the three he had observed in flight from the currency exchange. Officer Barnes identified a .38-caliber revolver as being the gun used by the third man with whom he had engaged in an exchange of gunfire.

Officer Jeremías testified that in response to a call he went to the scene of the capture, arriving just before noon. Upon searching the immediate area he found the revolver in question four or five feet from the Goodwill building. It contained five spent shells and one loaded cartridge. Mr. Rule testified that this revolver was similar to the one used in the attempted robbery.

It is upon the foregoing testimony that the defendants base their argument that they were not proven guilty beyond a reasonable doubt. Basically it turns upon the question of. identification. They contend that the State’s case must fail because there was no showing that they were in the currency exchange with the necessary intent to commit the crime and that the evidence is wholly insufficient to show their connection with the gunman.

With these arguments we cannot agree. The sufficiency of an identification ordinarily raises a question of credibility which is to be determined by the trier of fact. (People v. Jackson, 28 Ill.2d 566, 192 N.E.2d 873.) The positive identification by one credible witness is sufficient to uphold a conviction. (People v. Cook, 113 Ill.App.2d 231, 252 N.E.2d 29.) One of the employees of the currency exchange who had ample opportunity to observe positively identified defendant Johnson. It is established that the three men fled the currency exchange together and that Officer Barnes had the defendants in sight from the time they left the currency exchange until they arrived at the pink and white Ford, and upon being accosted by him then fled together around the back of the Goodwill Industries building. The only time Officer Barnes lost sight of the two defendants was for a minute to a minute and one-half while he was diverted in an exchange of gunfire with the third man, After this brief interlude he returned to the front of the building where his fellow officer had defendants in custody and he made a positive identification of the two as being the same who fled the currency exchange. The evidence presented showing the implication and participation upon the part of defendants is strong and although founded in part upon circumstantial evidence we see no room for effective argument that defendants’ connection with the attempted robbery, shooting, and the ensuing flight was not proven beyond a reasonable doubt. A reviewing court will not disturb a guilty verdict on grounds of insufficient evidence unless it is so unsatisfactory, improbable or unreasonable and so palpably contrary to the evidence as to justify the court in entertaining a reasonable doubt of the defendants’ guilt. (People v. Rogers, 132 Ill.App.2d 501, 270 N.E.2d 186.)

Defendants next contend that the court erred in admitting the .38 caliber revolver into evidence. This stance is taken because of the alleged total failure of the State’s evidence to show that either of the defendants ever handled the gun in question or any other gun that might have been used in the attempted robbery. They argue that the revolver had no established link whatsoever with the defendants and the evidence concerning the revolver was totally devoid of relevance to the case against defendants.

Defendants, however, apparently misapprehend the position of the State with regard to the gun. They have never contended that either of the defendants wielded or even possessed a gun. In fact, they concede the contrary. Proof of possession by defendants is not a necessary prerequisite to its admission into evidence. Where a defendant participates in a crime in which a weapon is used, it may be admitted though he himself did not wield or possess it. (People v. Ashley, 18 Ill.2d 272, 164 N.E.2d 70; People v. Maciejewski, 294 Ill. 390.) Moreover, it is unnecessary to establish that the particular weapon was the one which was actually used. (People v. Johnson, 35 Ill.2d 516, 221 N.E.2d 497; People McCasle, 35 Ill.2d 552, 221 N.E.2d 227.) It is undisputed here that a revolver was used in the crime and, but for the bulletproof glass, that death or serious injury could have resulted. Although neither defendant wielded a gun their presence at and connection with the crime is sufficiently shown to justify the admission of the revolver into evidence and the trial court committed no error in that regard.

For the reasons assigned in People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1, and People v. Shadowens, 10 Ill.App.3d 235, 294 N.E.2d 107, the sentences imposed in this case must be adjusted to conform to the sentencing provisions of the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1001 — 1 — 1 et seq.). Ill. Rev. Stat., ch. 38, art. 8, sec. 4(c)(3) provides that the sentence for attempt to commit any forcible felony (other than attempt to commit murder, treason or aggravated kidnapping, sentencing provisions for which are governed by other sections) shall not exceed a sentence for a Class 3 felony. Sec. 1005 — 8 — 1 of the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005 — 8 — 1) fixes the sentence for a Class 3 felony at not less than one year unless the court, having regard to the nature and circumstance of the offense and the character of the defendant, sets a higher minimum term, which shaU in no event be greater than one third of the maximum term set by the court. Accordingly, this case is remanded to the trial court for sentencing in conformity with the provisions of the Unified Code of Corrections.

Affirmed and remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James W. Townson, Defendant-Appellant.
    (No. 72-10;
    Fifth District
    June 4, 1973.
    Kenneth L. Jones, of Defender Project, of Chicago, for appellant.
    Robert H. Rice, State’s Attorney, of BeHevHIe, (James W. Jerz and Edward N. Morris, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, James W. Townson, was found guilty of armed robbery and attempted murder after a jury trial in the circuit court of St. Clair County. He was sentenced to a penitentiary term of not less than 25 nor more than 30 years for the armed robbery and to a term of not less than 14 nor more than 20 years for attempted murder with the sentences to run concurrently.

Defendant maintains on appeal that he was not proved guilty beyond a reasonable doubt, that he was denied a fair trial because of a comment made by the prosecutor in his closing argument and that the State’s failure to disclose, an occurrence witness to the defense resulted in a denial of due process to the defendant. We have examined each of these contentions and have determined that no error of law appears, that an opinion would have no precedential value, and that the evidence is not so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt.

Defendant’s final contention is that his sentence is excessive. We feel that the sentences imposed here are not sufficiently indeterminate to provide the parole authorities with the requisite discretion. We find that remandment is not necessary since the nature and circumstances of the offense and the history and character of the defendant are sufficiently disclosed by the record. We therefore reduce the minimum sentence for armed robbery to 10 years and the minimum sentence for attempted murder to 6 years. In all other respects we affirm the decision of the circuit court in compliance with Supreme Court Rule 23. Ill. Rev. Stat, ch. 110A, par. 23.

Affirmed as modified.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Joseph Embry, Defendant-Appellant.
    (No. 73-38;
    Fifth District
    June 4, 1973.

      Henry G. Walker, of Carmi, for appellant.
    Albert W. McCaHister, State’s Attorney, of Carmi, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

In a bench trial in the circuit court of White County defendant, Donald Joseph Embry, was convicted of burglary, possession of burglary tools and criminal damage to property. His contentions in this appeal relate to an interpretation of the disclosure rules under Supreme Court Rule 412, the refusal of the State to furnish him with a transcript of the grand jury minutes, an alleged unlawful search and seizure, and the question whether a telephone booth constitutes a “building” within the meaning of the burglary statute.

The following is a summary of the facts taken from the State’s evidence, as defendant chose not to testify or offer any other evidence. About 3:45 A.M. on September 22, 1970, a state trooper saw two unidentifiable men run from a pay telephone booth, jump in a car, and drive away at a high rate of speed. The trooper gave chase for five or six miles until he came upon the car, stopped in the highway with its lights still on, but abandoned. A wrecker was called to take the car to a garage in Carmi and a search was started for the men. Later that same morning defendant and a companion were taken into custody and fully advised of their rights. After obtaining consent from defendant, and also obtaining a search warrant, the car was searched and a number of tools were found including pullers designed to pull off locks, lock picks, and a number of coin-box keys. Later a coin-box lid was found along the highway but the coin box itself was never located.

A state policeman testified that the telephone booth was a metal-type building with glass windows which was bolted to a concrete base. The telephone had been rifled and the coin box removed. This witness also testified, as did the sheriff, that defendant admitted being in the phone booth when he saw the car coming, that he and his companion jumped in their car and took off. They threw away the coin box enroute and finally abandoned the car when if looked as if the car chasing them was catching up. Defendant also explained to these witnesses, and to a telephone company investigator, how the pullers were designed to pull locks off telephone boxes, and how another T wrench was designed to open semi-trailer trucks.

Almost one year prior to trial defendant filed a motion for discovery requesting, among other things, the contents of all oral statements made by defendant and by witnesses known to the State’s Attorney, and a transcript of the grand jury minutes. One month later' the State’s Attorney likewise filed a motion for discovery under Supreme Court Rule 413. Apparently neither party ever complied with the other’s request although defendant does admit that about five minutes before the trial the State did furnish him with copies of witnesses’ statements containing statements allegedly made by defendant.

Defendant argues that Supreme Court Rule 412 (d) requires the State to make disclosure as soon as practicable following the filing of his motion, and that by reason of the failure of the State to do so he is entitled to a new trial. The State answers that the mere filing of a motion without a court order granting the request is insufficient to compel compliance. We cannot agree with either of these contentions.

Supreme Court Rule 412 (Ill. Rev. Stat., ch. 110A, sec. 412) was adopted and became effective October 1, 1971, and there appear to be no precedents interpreting its application to the question before us. However, the rule itself is clear, and the Committee Comments explicit, in answering both questions posed. The rule states that “* * * the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession and control * * Following thereon are detailed items subject to disclosure among which are the substance of any oral statements made by the accused and a list of witnesses to the making of such statements. The rule does not require that the motion be acted upon by the court for the reason, as explained in the Committee Comments, that “* * * (I) it is intended that the disclosure * * * be implemented as a matter of course, and without time-consuming recourse to the courts.” The Comments go on further to say that the rule requires a specific request for disclosure because in many cases discovery may be neither necessary nor wanted and that, therefore, the choice of discovery or no discovery is left to the discretion of defense counsel rather than making it automatic. Further buttressing the conclusion that a court order to compel disclosure is not originally required is Rule 415(g). This rule specifically states that if at any time it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule, “* * * the court may * * * grant a continuance, exclude such evidence or enter such other order as it deems just under the circumstances * *

It appears obvious to us that the rule is intended to make disclosure to the accused, and to the prosecution, as easily obtainable as possible for the purpose of promoting the ascertainment of truth in the quest for fairness and justice. Here both parties saw fit to make the initial request for disclosure but neither party became exercised over the other party’s failure to comply. Had defendant desired to insist upon his right of disclosure, redress was available to him in the form of a request to the court for an order of compliance, for a continuance, or even for an exclusion of such evidence. (Supreme Court Rule 415(g).) We find that the failure of defendant to seek such redress constitutes a waiver of his right to disclosure the same as if he had not asked for it in the first place, and, having failed to give the court an opportunity to rule prior to commencement of trial, he cannot be heard to complain for the first time in his motion for a new trial.

Defendant contends next that the above rule (par. 412(a)(iii),) requires the State to record grand jury testimony in every instance so that it may be available later at the request of the accused. This identical question was considered in People v. Lentz, 8 Ill.App.3d 41, 288 N.E.2d 653, and it was there held the rule contemplates that a transcript of such testimony must be furnished, if available, but it does not require the State to see that a reporter is present to assure the availability of the transcript. We agree with that conclusion and the reasoning upon which it was based.

We also find no merit to defendant’s argument that the search of the car was unlawful. He contends that even though the police testified that a search warrant was issued the warrant itself was not produced and the record contained no order for its issuance. However, wholly apart from this issue it is undisputed that defendant and his companion jumped from the car and ran to avoid capture. As stated in People v. Jones, 38 Ill.2d 427, 231 N.E.2d 580, this act constituted an abandonment of both the car and its contents and, having thus been discarded, they were properly seized, examined and admitted into evidence. In addition, there is evidence that the defendant consented to the search.

Finally, defendant contends that a telephone booth is not a “building” within the meaning of the burglary statute. (Ill. Rev. Stat., ch. 38, sec. 19 — 1.) This question was previously considered in People v. Borneman, 66 Ill.App.2d 251, and we reiterate the finding that a telephone booth of the type described in that case and in the record now before us constiutes a “building” as that word is used in said statute.

The trial court in granting probation in this case provided that defendant should serve the first nine months at the Illinois State Farm. Under the New Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005 — 6 — 3), the nine month sentence is no longer permitted as a part of probation. The nine month sentence as a provision of probation is removed and otherwise the judgment of the circuit court of White County is affirmed.

Affirmed as modified.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Harris, Defendant-Appellant.
    (No. 72-61;
    Fifth District
    June 5, 1973.
    Kenneth L. Jones, of Defender Project, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (James W. Jerz and Edward N. Morris, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

On February 25, 1970 defendant entered a plea of guilty to the crime of armed robbery and was given a sentence of not less than two nor more than five years in prison. The sole issue defendant raises on appeal is whether the court’s admonitions as to the possible sentence were complete. Those admonitions were:

“The Court: * * * You must also understand, under your plea of guilty, the Court can adjudge you guilty of the crime of Armed Robbery as alleged in the indictment and you can be sentenced for any indeterminate term of a minimum of not less than two years.

Defendant: Yes, sir.

The Court: And the Court can fix the minimum and maximum term of such sentence. Now, knowing your legal rights, do you still persist in your plea of guilty?

Defendant: Yes, sir.

Mr. Rice (State’s Attorney): Your Honor, we would ask, * * * there was a case reversed on whether the subject understood indeterminate.

The Court: Do you understand what indeterminate means, Mr. Harris?

Défendant: No.

The Court: All right. I have stated to you ‘indeterminate’. This means I can sentence you to any maximum length of time that I want to. Does that explain it to you?

Defendant: Yes, sir.

The Court: Is there any further explanation needed by you?

Defendant: No.

The Court: I am only talking about the maximum term, do you understand that?

Defendant: Yes, sir, I do.”

The basis of defendant’s argument is that defendant did not realize at the time he entered his plea that he faced a possibility of receiving a minimum sentence of more than two years and accordingly his plea was not knowingly and intelligently given as required by Boykin v. Alabama, 395 U.S. 238.

We must disagree with defendant’s argument. The record is totally devoid of anything that would indicate defendant did not fully understand the possible sentence that could be imposed. The defendant in fact received the minimum permissible term of imprisonment for the crime of which he was convicted. We can find no basis for his complaint. Admittedly he was told that he could be sentenced for any indeterminate term and that the minimum would be not less than two years. Defendant then stated he did not understand the meaning of “indeterminate” but after an explanation he stated that he then understood it and that further explanation was unnecessary. The procedure followed by the court was in compliance with pertinent portions of Supreme Court Rule 401(b) (Ill. Rev. Stat., 1969, ch. 110A, sec. 401(b)) governing receipt of pleas of guilty at the time of defendant’s plea. See People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30.

The sentence imposed upon defendant was within the limits prescribed by law and does not require adjustment on appeal in accordance with tire Rules stated in People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1, and People v. Shadowens, 10 Ill.App.3d 450, 294 N.E.2d 107.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry Glenn Staggs, Defendant-Appellant.
    (No. 72-193;
    Fifth District
    June 5, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, (P. J. O’Neill, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

As a result of a plea agreement the defendant entered a plea of guilty to five charges of burglary and two charges of theft of property valued in excess of $150. He received a sentence of not less than one nor more than five years on each charge, all sentences to run concurrently.

Defendant appeals the convictions and sentences for the two charges of theft. He asserts that the court erred in convicting and sentencing him on the theft charges since the property which was the subject of the theft charges was also the subject of two of the burglary charges. In its brief the State concedes the error. In accord with People v. Squires, 27 Ill.2d 518, 190 N.E.2d 361, and People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316, the two convictions for theft are reversed.

Theft convictions reversed.

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