author: Mr. JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Brown, a/k/a Charles Taylor, Defendant-Appellant.
    (No. 57005;
    First District (4th Division) —
    July 11, 1973.
    James J. Doherty, Public Defender, of Chicago, (Michael Weininger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Clarence Brown, was charged with thé offense of murder. After a jury trial, he was convicted and sentenced to serve not less than 100, nor more than 150 years in the Illinois State Penitentiary. Defendant appeals his conviction and presents the following issues for our review:

1. Whether defendant wás denied due process of law when the trial judge denied defendant’s request for a continuance;

2. Whether defendant was denied due process of law when the trial judge refused to allow defendant to present an insanity defense;

3. Whether defendant was denied due process of law when the trial judge denied defendant’s motion for substitution of judges without a hearing;

4. Whether defendant was denied due process of law when the trial judge conducted a competency hearing without impaneling a jury;

5. Whether defendant was denied equal protection of the law when the trial judge denied his request for a continuance hut indicated that the request would be treated differently if the defendant were not in custody; and

6. Whether defendant was denied a fair trial when the court refused to instruct the jury on the issue of involuntary manslaughter.

The facts are as follows:

On October 20, 1970, at approximately 2:35 A.M., Julius Stepter was in a candy store located at 749 S. Kedzie Avenue, in Chicago, when defendant entered the store and poured gasoline over Mr. Stepter. The gasoline ignited and Mr. Stepter subsequently died of his injuries. There was some dispute at trial as to whether defendant lit a match which ignited the gasoline on Mr. Stepter, or whether a space heater in the room set off the flames.

Defendant was indicted for murder on December 17, 1970, and was arraigned on December 23, 1970, at which time his counsel filed his appearance. On February 8, 1971, defendant filed a motion for discovery and inspection and the court at that time ordered the State to comply with the discovery request.

From February 8, 1971, until May 18, 1971, when the defendant was ordered to trial, there were four requests for continuances, one by the court’s own motion, two continuances at defendant’s request and the fourth continuance by agreement between the State and defendant. On May 18, 1971, the State first requested leave of court to file its response to the discovery motion and order of February 8, 1971. The response consisted of a list of 28 witnesses and a request of the defense for a notice of any alibi defense. The State refused to answer 9 of the 17 requests in the original defense motion. This response by the State was mailed to defense counsel on April 26, 1971, and was received on April 28, 1971, 20 days before the court ordered defendant to proceed to trial.

Defense counsel stated that upon receiving a list of witnesses from the State, he immediately hired a private investigator to interview the witnesses. An affidavit of the investigator was filed in a written request for a continuance in which the investigator stated that he was hired one day after defense counsel received the list of the State’s witnesses, but that he could not complete his investigation of the 28 witnesses in the short time allotted.

Defense counsel requested a continuance on May 18, 1971, based upon the short interval of time allowed to investigate the list of witnesses. He further informed the court that in the past three weeks he had tried three jury cases, appeared in two appeUate cases and had in fact just finished a jury trial in the late hours of May 17, 1971. Counsel for defendant also related that when he had informed the prosecutor prior to trial that he would not be prepared, the prosecutor told him, “I will give you anything you want — don’t worry about it.” However, once in court, the prosecutor answered ready for trial.

Defense counsel also explained to the trial judge in his argument for a continuance, that he had two cases with earlier indictments than defendant’s pending before the trial court and that he was ready on those cases. The trial judge responded that he wasn’t concerned with those cases because those defendants were on bond while defendant in the instant case was incarcerated. The trial judge then denied defendant’s motion for a continuance and caUed a jury.

During the voir dire examination, the issue of defendant’s competency arose and an examination of defendant was ordered. After a psychiatric examination on May 19, 1971, and a competency hearing on May 20, 1971, defendant renewed his earlier request for a continuance. It was again denied. The trial court at that time found that defendant was competent to stand trial and rejected defense counsel’s attempt to offer an insanity defense. The trial court also denied defendant’s motion for a substitution of judges. The hearing of the trial witnesses began on May 21, 1971, and at that time it was revealed that defense counsel was so exhausted from other matters that he was required to bring in another attorney, who was almost totaHy unfamiliar with the case, to assist him. At the conclusion of the trial, the court denied defendant’s motion for an instruction in involuntary manslaughter and the jury subsequently returned a verdict finding defendant guilty of murder. Judgment on the verdict was entered and defendant was sentenced to serve from 100 to 150 years in the Illinois State Penitentiary. It is from that judgment that defendant appeals.

Defendant’s initial contention on appeal is that the trial court erred by denying defendant’s request for a continuance which was necessitated by the State’s filing of a list of 28 witnesses, 20 days prior to trial.

The disposition of a motion for a continuance rests within the sound discretion of the trial court. (Ill. Rev. Stat. 1971, ch. 38, par. 114— 4(e); People v. Davis, 45 Ill.2d 514, 261 N.E.2d 314.) Where on review, however, it is found that there has been an abuse of discretion in denying a motion for a continuance, and the accused is prejudiced by such denial, the judgment of conviction must be reversed and the cause remanded for a new trial. (People v. Kenzik, 9 Ill.2d 204, 137 N.E.2d 270; People v. McNeil, 102 Ill.App.2d 257, 243 N.E.2d 576.) Whether there has been an abuse of discretion depends upon the particular facts of each case. People v. Street, 133 Ill.App.2d 536, 273 N.E.2d 172.

On a charge of murder, every reasonable opportunity should be afforded a defendant to investigate the witnesses against him and to prepare his defense. (People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615.) Due diligence in preparing for trial, however, is necessary and a dilatory request for a continuance should not be allowed. (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 4(e); People v. Conigilo, 353 Ill. 643, 187 N.E. 799.) Nor should defense counsel be able to constantly delay trial by virtue of his employment in other cases.

In the case at bar, the trial court refused defendant’s motion for a continuance, indicating that the court anticipated that “If I gave you six months [continuance] you would still come in with the same story [of not having had ample time to complete the investigation].” However, in People v. Blumenfeld, 330 Ill. 474, 489, 161 N.E. 857, 862, the Illinois Supreme Court considered a trial court’s denial of defendant’s motion for a continuance and held:

‘While it is highly important that justice should be speedily meted out and that criminals should be punished with celerity and dispatch, it is much more important that before punishment should be inflicted upon a person accused of crime, full opportunity should be given to place the court in possession of all the facts bearing upon the question of the guilt or innocence of the accused, so that the court and jury may ascertain the truth as to whether or not the person accused is, in fact, guilty of the crime. * * * A trial is a farce-indeed, is no trial at all, — if the defendant be not given an opportunity to prepare for trial, — which is but another way of saying ‘an opportunity to be heard.’ (Schields v. McMicking, 23 Phil. 526.) Counsel when employed by a defendant are not required to neglect the business of clients by whom they have been previously retained.”

In the instant case, the record reveals that the prosecution delayed 77 days before filing its response to defendant’s motion for discovery. Then just 20 days prior to the next court date of May 18, 1971, the State filed a fist of 28 witnesses and the court then refused defendant’s motion for a continuance to complete the investigation of those witnesses and insisted that the trial begin on that date. The prosecution had, prior to the May 18, 1971 court date, indicated to defense counsel that it would agree to a further continuance, but on the court date the prosecutor was ready with his witnesses for trial. The record further indicates that defense counsel was not dilatory and that he filed his discovery motions on the first court date after arraignment. He immediately hired an investigator upon the receipt of the State’s reply to his discovery motion.

He informed the prosecutor in advance that he would require a continuance. Of the four continuances prior to May 18, 1971, the defendant was solely responsible for only two. Defense counsel informed the trial court that he had two earlier cases pending before the court and that he was prepared to proceed on those cases. The trial court nevertheless refused to grant defendant a continuance to allow completion of the investigation of his case. After review of the record in the case at bar, we must conclude that the trial court did abuse its discretion in denying defendant a continuance to properly investigate his case to defendant’s substantial prejudice, and we reverse the judgment of the trial court and remand the cause for a new trial.

In light of our determination on the issue of the denial of defendant’s motion for a continuance, we find it unnecessary to discuss the other points defendant raises on appeal.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is hereby reversed and the cause remanded for a new trial.

Reversed and remanded.

BURMAN, P. J., and DIERINGER, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE JOHNSON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Percy Harris et al., Defendants-Appellants.
    (No. 57212;
    First District (5th Division) —
    July 11, 1973.
    James J. Doherty, Public Defender, of Chicago, (Bernard L. Schwartz, Assistant Public Defender, of counsel,) for appellants.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Bernard S. Armel, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

After a bench trial, the defendants were convicted of theft. (Ill. Rev. Stat. 1969, ch. 38, sec. 16 — l(a—1).) Defendant Harris was sentenced to four years probation, the first nine months to be served in the House of Correction, and defendant Page was sentenced to a term of one to three years in the Illinois State Penitentiary. Defendants appeal.

The issues presented for review are:

1. Whether a determination of the defendants’ credibility made by the trial court based upon an independent investigation by the trial judge, untested by cross-examination or any of the rules of evidence, into matters which were subject to the attorney-client privilege denied the defendants due process of law.

2. Whether the defendants were proved guilty of theft beyond

a reasonable doubt where:

a. The evidence failed to prove that the vehicle the defendants were allegedly in was the same vehicle stolen from the complainant

b. The identification of the defendants as the alleged offenders was doubtful, vague and uncertain.

c. The evidence failed to prove that the defendants were in possession of and exerted unauthorized control over the allegedly stolen automobile with intention of permanently depriving the owner of possession or use.

d. The trial judge shifted the burden of proof to the defendants after the trial court conducted an independent investigation.

Mrs. Helen Robinson testified that on January 9, 1971, at about 11:30 P.M., she parked her car, a gold 1964 Chevrolet, at the corner of 39th and Indiana, locked it and left. She returned about a half hour later and could not find her car. She called the police to report it missing and was informed that she had to have the serial number. She went home to get it and, while there, received a call from the police that they had recovered the car.

At about 12:30 A.M., on January 10, 1971, Officers Hudik and Pavelich, while riding in an unmarked car and before they had any knowledge of the report by Mrs. Robinson, noticed a gold 1964 Chevrolet in the area of 43rd and Prairie Avenue. They noticed that the three occupants appeared to be very young and approached the vehicle and attempted to get the attention of the youths by flashing the spotlight into the car.

This attempt was ignored and the officers again flashed the light into the car. This time the three youths turned around and looked at the police car. They then accelerated and the officers gave chase with the siren and the Mars light on. The youths then proceeded to an empty lot, emerged from the car while it was still moving and started running. The officers stopped their car, got out and followed on foot, but were unable to catch them. Officer Hudik returned to the police car and called for assistance, giving a description of the three youths to Officer Larisey, who, along with Officer Berris, responded to the call for assistance. Officer Hudik then returned to the gold Chevrolet and noticed that the ignition was pulled out and the right front fender damaged.

About five or ten minutes later, Officers Larisey and Berris arrested three individuals on the comer of 43rd and Wabash. Officers Hudik and Pavelich were called and identified them as the same three they saw leaving the gold Chevrolet. They were then taken to the station.

The defendants testified that they were at a party and had gone to a restaurant across the street from the party to order some food. After ordering the food, they were on their way to a store on the corner of 43rd and Michigan to buy some cigarettes when they were arrested on the corner of 43rd and Wabash.

At the trial, the court asked the defendants’ attorney if the defendants told their alibi story to the public defender at their first meeting. The defendants’ attorney said he had no notes as to such a statement and the trial judge then replied that he could not believe the defendants’ story in that it only came out ten months after the occurrence.

The defendants’ first contention on appeal revolves around the idea that the trial judge based his determination of the defendants’ credibility on an independent investigation, thus denying the defendants due process of law. The alleged independent investigation aróse out of the trial judge’s questioning of the defense attorney after the defense rested. The trial judge asked the attorney whether the defendant told their alibi story to the public defender at their first meeting. What the trial judge was getting at was whether the review sheet, which the public defender fills out at the first meeting with the defendants, was in the file and contained this story. The questions by the trial judge did not constitute an independent investigation, but were prompted by evidence produced in open court and made part of the record. (People v. Burts (1958), 13 Ill.2d 36, 37, 147 N.E.2d 281.) The record shows that the arresting police officers testified that the defendants did not tell them this story at the time of their arrest. It was the trial judge’s intent to resolve the conflict in the testimony of the officers and the defendants. This issue was raised in People v. Burts (1958), 13 Ill.2d 36, wherein the court said at page 39:

“The remarks of the court in this cause are all based upon or are prompted by evidence produced in open court and appearing in the record of proceedings. Certainly the evidence produced strongly suggests that defendant was engaged in pandering. The court merely noted that such a case would be tried in the police court were it not for the additional factor of robbery as in this cause. The evidence produced disclosed that the defendant owned a car although he had previously appeared as a pauper requesting and receiving representation by the public defender. While these remarks of the court are intemperate and ill-advised, they are elicited by and based upon facts appearing in the record. We do not believe that this record establishes that the trial judge conducted a private investigation of this matter, and hence the defendant has not established a prejudicial error in this regard. (People v. Savage, 5 Ill.2d 296.) Moreover, the court in hearing a cause is deemed to consider only that evidence which is competent in making his determination. (People v. Popescue, 345 Ill. 142.) Our review indicates there is sufficient competent evidence to support the court’s finding.”

Since the questioning by the trial judge did not constitute an independent investigation, and the credibility of the witnesses in a bench trial and the weight of the evidence are for the trial judge to determine, this determination will not be disturbed on review unless the evidence is so unconvincing and unreasonable or unsatisfactory as to leave in the minds of this court serious doubt of the defendants’ guilt. (People v. James (1969), 109 Ill.App.2d 328, 248 N.E.2d 777; People v. Savaiano (1973), 10 Ill.App.3d 666, 294 N.E.2d 740.) We find in this case that the evidence is clear and convincing and it will not be overturned.

Considering all of defendants’ arguments as a whole, we find no reason to interfere with the trial court’s finding of guilty. It is our opinion that each of the defendants herein was afforded a fair trial and that each was convicted of the crime of theft beyond a reasonable doubt.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frederick Sanders, Defendant-Appellant.
    (No. 58393;
    First District (4th Division) —
    July 11, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Frederick Sanders, was charged with the offenses of armed robbery and attempted robbery. He pleaded guilty to armed robbery and after a bench trial he was found guilty of attempted robbery and sentenced to concurrent terms of two to five years. Defendant, represented by the Public Defender, filed a consolidated notice of appeal. The Public Defender now seeks to withdraw as counsel in the armed robbery cause. He has filed a motion pursuant to Anders v. California, 386 U.S. 738, and states that, from a review of the record, the only basis for an appeal would be whether the plea of guilty was properly accepted by the trial court. The Public Defender concludes that in view of the trial court’s strict adherence to Supreme Corut Rule 402 in accepting the guilty plea, an appeal in this cause would be without merit and could not possibly be successful.

Defendant received a copy of the Public Defender’s motion to withdraw and a copy of the supporting brief. He was also sent a letter by this court notifying him of the motion and giving him an opportunity to file any points he might choose to support his appeal. Defendant failed to respond.

After examining the points raised by the Public Defender’s brief as well as the entire record before the court, we are compelled to conclude that this appeal would be wholly frivolous and without merit. The motion of the Public Defender to withdraw from the instant appeal is therefore allowed and the judgment of the circuit court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stan Scott, a/k/a Lester Stanley Scott, Defendant-Appellant.
    (No. 57542;
    First District (3rd Division) —
    July 12, 1973.
    G. M. Cooper, III, R. E. Pincham and Charles B. Evins, all of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Sharon Grossman, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

McGLOON, J., took no part.


text:
    Donna Jo Mills, Plaintiff-Appellee, v. Carroll W. Mills, Defendant-Appellant.
    (No. 57617;
    First District (4th Division) —
    July 11, 1973.
    Eugene R. Ward, of Chicago, for appellant.

      Ryan and Connolly, Associates, of Franklin Park, (Matthew J. Ryan, of counsel,) for appellee.
   Mr. JUSTICE ADESKO

delivered the opinion of the court:

Donna Mills brought an action for divorce against Carroll Mills, charging him with extreme and repeated physical cruelty. After a bench trial, the court entered a decree for divorce on behalf of the plaintiff. On appeal defendant contends that:

(1) The alleged acts of cruelty were insufficient to endanger plaintiff’s life or limbs or to raise a reasonable apprehension of great bodily harm;

(2) The marital real estate should not be awarded to the plaintiff; and

(3) The trial court was not justified in awarding fees to plaintiff’s attorney.

Plaintiff and defendant were married on June 14, 1958. Two children were born of the marriage and the defendant adopted two other children by the plaintiff’s previous marriage. Plaintiff testified that on May 2, 1971, she and defendant had an argument during which defendant “got me by the hair of the head and pulled me down on the bed.” Plaintiff further testified that on June 6, 1971, defendant slapped her across the arm and pushed her against the wall. The parties’ daughter, Shirley Mills, corroborated plaintiffs testimony. Defendant denied both incidents but admitted that he pushed the plaintiff away. After the June 6, 1971 argument, the parties ceased to five together.

Defendant’s first contention on appeal was that the alleged acts of cruelty were insufficient to endanger plaintiff's life or limbs as to raise a reasonable apprehension of great bodily harm. In Kovack v. Kovack, 131 Ill.App.2d 382, 268 N.E.2d 258, at page 384, the court expressed the following language which we find appropriate to the case at bar:

“The trial court found that defendant committed the two acts of cruelty. Two acts of physical violence resulting in pain and bodily harm, committed on separate occasions, are sufficient grounds for divorce. Tuyls v. Tuyls, 21 Ill.2d 192, 171 N.E.2d 779 (1961); Varap v. Varap, 76 Ill.App.2d 402, 222 N.E.2d 77 (1966). It is the province of the trial court to determine whether there has been adequate evidence to establish the contention of either party. Since the court has the opportunity to hear the testimony, view the witnesses and weigh their credibility, a reviewing court will not overturn the trial court’s finding unless it is against the manifest weight of the evidence. Hoffman v. Hoffman, 40 Ill.2d 344, 239 N.E.2d 792 (1968). The court’s conclusion that the defendant was guilty of extreme and repeated cruelty was sustained by the evidence.”

Defendant’s second contention on appeal was that the marital real estate should not be awarded to the plaintiff except under special circumstances. Section 18 of the Divorce Act provides in pertinent part that:

“The court may order the husband * * * to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed in gross or by installments as settlement in lieu of alimony, as the court deems equitable.” Ill. Rev. Stat. 1969, ch. 40, par. 19.

A showing of special circumstances is unnecessary when tire court orders a conveyance or transfer of property in lieu of alimony. (Persico v. Persico, 409 Ill. 608, 612, 100 N.E.2d 904; Smothers v. Smothers, 25 Ill.2d 86, 87, 182 N.E.2d 758; Schwarz v. Schwarz, 27 Ill.2d 140, 149, 188 N.E.2d 673.) Plaintiff was entitled to alimony and the court could reasonably deem the conveyance an equitable one, as a settlement in lieu of alimony.

Defendant’s third contention was that the trial court was not justified in awarding fees to plaintiff’s attorney. The allowance of attorney fees in a divorce proceeding is within the sound discretion of the trial court and unless such discretion is abused its exercise will not be interfered with. (Furth v. Furth, 5 Ill.App.3d 73, 76, 283 N.E.2d 102.) Section 15 of the Divorce Act provides for the allowance of attorney fees for defense of an appeal. (Waltrip v. Waltrip, 3 Ill.App.3d 892, 897, 279 N.E.2d 405.) In the case at bar the trial court heard evidence on the financial status of the parties and considered the extent and character of legal services rendered. We can find no abuse of discretion by the trial court.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    The Vendo Company, Plaintiff-Appellee, v. Harry B. Stoner et al., Defendants-Appellants.
    (No. 71-396;
    Second District —
    May 29, 1973.

      Rehearing denied September 12,1973.

    Barnabas F. Sears, of Boodell, Sears, Sugrue & Crowley, and James E. S. Baker, of Sidley & Austin, and William Thomas Braithwaite all of Chicago, and Gerald M. Sheridan, Jr., of Wheaton, for appellants.

      Reid, Ochsenschlager, Murphy & Hupp, of Aurora, and Hillix Brewer & Meyers, of Kansas City, Missouri, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Plaintiff (“Vendo”) brought this action in August 1965 in the circuit court of Kane County to recover damages for defendants’ breach of non-competition covenants. By amendments to the complaint filed a few months later, Vendo alleged theft by defendants of valuable trade secrets and appropriation of them to their own use and to that of Lektro-Vend Corporation. Following a bench trial the court entered judgment against both defendants, Harry Stoner (“Stoner”) and Stoner Investments, Inc. (“Stoner Investments”) for $1,100,000 and costs and against Stoner for $250,000. (An injunction was also entered which is not now an issue.) On appeal, after holding that Vendo had no trade secret and was therefore not entitled to any damages for its theft, we affirmed in part, reversed in part, and remanded the case to the trial court with directions to determine damages for breach of the covenants not to compete consistent wtih the views expressed in our opinion. Vendo Co. v. Stoner, 105 Ill.App.2d 261.

At the conclusion of the trial on remand the court entered judgment against both defendants for $7,345,500 and costs and against Stoner, individually, for $170,835 and costs.

Our opinion on the prior appeal presents the relevant facts and sets forth the pertinent non-competition provisions of the sales agreement and the employment contract. (Vendo Co. v. Stoner, 105 Ill.App.2d at 267-268.) Therefore they need not be restated here. However, we wHI advert in this opinion to evidence adduced at the trial on remand.

The principal question presented is whether the judgment against both defendants for $7,345,500 is contrary to the law of the case established by the prior appeal, and whether it is outside of the issues framed by the complaint.

It would unduly prolong this opinion to set forth in detail the evidence as to damages received by the court (over defendants’ objections). We will confine ourselves to summarizing the evidence when necessary. Perhaps the nature of Vendos evidence as to damages on remand can be succinctly indicated by Vendo’s counsel’s own words in his opening statement as being: (a) “What Vendo lost by way of sales by not having this (Lektro-Vend) machine, if that resulted from the conduct of Mr. Stoner,” and (b) “the depreciation — or the diminution of the value of the company as of 1969 as a result of Mr. Stoner’s activity and the failure to have the Lektro-Vend machine if that resulted from Mr. Stoner’s activity.”

In its complaint Vendo pleaded two theories of liability: (a) theft of a trade secret, and (b) breach of the covenants not to compete by directly or indirectly entering into the vending machine business through Lektro-Vend. In the first appeal we held that Vendo had no trade secret, and that the judgment which was predicated upon the theory of its tiheft was erroneous. However, we held that the non-competition covenants were valid and that they were breached by defendants, stating: “We are thus limited to ascertaining the proper measure of damages for breach of the covenants not to compete.” (Vendo Co. v. Stoner, 105 Ill. App.2d at 288.) We further stated at page 291: “[T]he value of the Lektro-Vend machine, [upon which the earlier judgment of $1,100,000 was based] * * * is neither an element nor a yardstick of damages for a breach of the noncompetition covenants,” and held instead that “Vendo should be permitted to recover an amount equal to the net profits it lost and might reasonably be expected to lose, plus the amount by which the value of its business will have been diminished as of June 1, 1969, because of defendants’ wrongful competition.”

At the trial on remand Vendo made no attempt to prove lost profits caused by defendants’ “wrongful competition”. Instead, it relied principally on the testimony of two experts, both of whom acknowledged that their theory for the computation of damages was loss of sales from the absence of a FIFO machine and that Stoner was responsible for Vendo’s lack of such machine. These experts relied substantially on a report made by Vendo’s manager of business research making estimates of percentage of the confection vendor market taken over by FIFO vendors as distinguished from the older drop-shelf type. This very report warned that it did not include a sufficient number of operators to make a determination, and that therefore “inferences concerning competitive positions within the total market should be avoided.” The figures of both experts on lost profits and on diminution of the value of the business were premised on Vendo’s failure to have FIFO, and on Stoner’s responsibility for such failure.

Neither the evidence in the first trial nor in the trial on remand establishes that Stoner was responsible for Vendo’s failure to have FIFO. Our prior opinion describes Vendo’s unsuccessful efforts to build a FIFO in 1959-60 (Vendo Co. v. Stoner, 105 Ill.App.2d at 271-273), and, at page 274, Stoners recommendation in March 1963 for Vendo’s purchase of Lektro-Vend’s FIFO machine. When Stoner’s recommendation was rejected, he told Vendo that the future will show that Vendo’s failure to acquire it was “a serious mistake”. Vendo had decided against developing a FIFO twice before that occasion.

After 1963 Vendo continued to reject the development of a FIFO machine, even after repeated urging by its salesmen. At the time of the trial on remand, April-May, 1971, Vendo was finally almost ready to begin production with a FIFO snack vender. This development resulted as a spin-off from its contract with Lance Company, a large buyer of vending machines on a bid contract basis.

Vendo’s failure to have a FIFO vending machine is not attributable to defendants. The computation of damages for a loss of profits during defendants’ breach and the diminution in the value of its business was not based on defendants’ “wrongful competition” and therefore did not conform to the decision and mandate of this court. (Vendo Co. v. Stoner, 105 Ill.App.2d at 291.) On reversal of a judgment and remand by a court of appellate jurisdiction the trial court can take only such proceedings as conform to the judgment of the reviewing court. People ex rel. Bauer v. Henry, 10 Ill.2d 324; Berry v. Lewis, 27 Ill.2d 61, 62-63; Fiore v. City of Highland Park, 93 Ill.App.2d 24, 34.

Lost profits in a non-competition case are those which were diverted from the plaintiff as a result of defendants’ sales as plaintiff’s competitor (Long v. O’Bryan, 28 Ky. L.Rep. 1062, 91 S.W. 659, 660; Stewart v. Challacombe & Ramsey, 11 Ill.App. 379, 382), and plaintiff’s damages must be such as were sustained by defendant’s breach of contract and were a “normal and proximate consequence of the breach # o *>> ^ Hitchcock v. Anthony, 83 F. 779, 783.) Although liberality may be used in estimating damages after it has been shown that they were caused by illegal acts, “this liberality does not extend to proof that the damages were caused by the illegal acts.” (Dantzler v. Dictograph Products, Inc., 309 F.2d 326, 330, cert, denied, 372 U.S. 970.) The fact that Vendo suffered losses subsequent to defendants’ breach of the non-competition covenants does not of itself establish a causal connection. The damages recoverable by Vendo are only those which are a normal and proximate consequence of defendants’ breach of those covenants.

Diminution in the value of the business is the amount by which the value of the good will of the business has been impaired at the end of"the term of the non-competition covenants. (Bauwens v. Goethals, 187 Ill.App. 563, 572; see also, McCook Window Co. v. Hardwood Door Corp., 52 Ill.App.2d 278, 287-288.) If upon remand Vendo fails or is unable to prove any lost profits or diminution of business “because of defendants’ wrongful competition” it would be entitled to recover only nominal damages. Maren v. Wolmer, 343 III.App. 353 (abstract opinion); Scotton v. Wright, 32 Del. 192, 121 A. 180, 185; Shaw v. Jones, Newton & Co., 133 Ga. 446, 66 S.E. 240, 242.

A further contention of defendants is, in effect, that because of additional facts adduced after remand, the judgment of $170,835 entered against Stoner individually is erroneous. A discussion of defendants’ argument will not serve any useful purpose and would only prolong this opinion. We need only state that in entering that judgment the trial court complied with our mandate on the prior appeal as it was bound to do. (Sawicki v. Clemons, 411 Ill. 28, 30; People v. Militzer, 301 Ill. 284, 287.) Defendants had ample opportunity to introduce at the first trial any pertinent evidence relative to the facts upon which that liability was predicated. They did not do so. There must be an end of litigation somewhere and tire judgment of $170,835 is affirmed.

Defendant further argues that the trial court (before the trial on remand) should have allowed defendants’ motion to reinstate their Illinois antitrust defenses and counterclaim. In our prior opinion we affirmed the trial court’s striking of these affirmative defenses and counterclaim bounded on alleged violation of Illinois antitrust laws. (Vendo Co. v. Stoner, 105 Ill.App.2d at 298-299.) Subsequent to this court’s prior opinion the Illinois legislature enacted section 7.9 amending the Illinois Antitrust Act, effective July 1, 1969 (Ill. Rev. Stat. 1969, ch. 38, sec. 60 — 7.9) to provide as follows:

“No action under this Act shall be barred on the grounds that the activities or conduct complained of in any way affects or involves interstate or foreign commerce.”

The Attorney General of Illinois, as amicus curiae, supports plaintiff’s argument on this point.

Even if it be assumed that the State legislature had the authority to enact this amendatory provision, we are unable to ascribe to it retroactive application to contracts entered into five years earlier. Our affirmance in the prior opinion of the trial court’s dismissal of the State antitrust defense and counterclaim became the law of the case on remand. The trial court properly refused to allow reinstatement of the defense and counterclaim based on the amendment of the Illinois Antitrust Act.

In view of our decision we regard it as unnecessary to discuss other contentions of the parties.

The judgment of the trial court is therefore affirmed in part, reversed in part, and remanded for further proceedings consistent with the views expressed herein.

Affirmed in part, reversed in part, and remanded with directions.

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

       The record in this case is voluminous; the abstract of the record alone of the trial on remand consists of 598 pages; the book of exhibits on re-trial is about 2" thick.

       FIFO equals “first-in-first-out”, i.e., a machine where the first product stocked would be the first one sold.

       In that opinion we also held at page 297 that the trial court erred in striking the federal antitrust defenses without a hearing. Before trial on remand defendants by leave of court dismissed that defense without prejudice. Vendo Co. v. Stoner, 105 Ill. App.2d 261, 297.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Warren David Reddock, Defendant-Appellant.
    (No. 72-38;
    Second District —
    August 2, 1973.

      Paul Bradley, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, and James W. Jerz, of Model District State’s Attorneys Office, of Elgin, (Dudley E. Owens, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

After a bench trial, defendant, Warren David Reddock, was found guilty of murder and sentenced to serve thirty to fifty years in the state penitentiary. The indictment charged that he had killed Harvey Rosenzweig (sometimes referred to as the deceased) by a blow to the head with a blunt instrument. A chronological summary of the evidence follows.

Celia Rosenzweig, the deceased’s sister, testified that deceased, a 40-year old accountant, lived with her, two other sisters and their mother in a home on Bryn Mawr Avenue in Chicago. In the summer of 1968, he drove to Canada for a vacation and, while in Montreal, responded to a newspaper ad relating to a business venture. He returned from this vacation sometime in the beginning of August 1968.

On August 12, 1968, one Donald A. Nichols checked into room 358 of the Mt. Prospect Holiday Inn. (Through the use of handwriting analysis, it was proven that the man purporting to be Donald A. Nichols was actually the defendant, Warren Reddock.)

On the same day, the deceased met and conferred with his attorney, Richard Kahn, who, as a result of this meeting, drew up an employment agreement between deceased and the European Arms Corporation. The attorney testified that, while in his office, deceased made a phone call and asked for a Mr. Reddock. Listening on an extension phone, Kahn heard a man answer; deceased addressed the man as Warren or Mr. Reddock and introduced him to Kahn by those names. The attorney spoke to the man and confirmed certain facts concerning the employment agreement: i.e., that deceased would become the president of a corporation which would initially be engaged in the investment of land in Lake County, Illinois, and which would be partially funded by money coming from Canada.

On that day, also, Louis Behm, a real estate broker, received a telephone call from a man named Mr. Nichols who inquired into the advertised sale of 900 acres of wooded land in Lake County (hereinafter referred to as the Mud Lake property). On August 14, 1968, Nichols arrived at Behm’s office and the two men drove out to inspect the property. Behm testified that the man told him that he was interested in an arms manufacturing company which would be financed by money coming from Canada, that a man by the name of Rosenzweig would run the operation and that Rosenzweig’s attorney was a man named Kahn. After viewing the Mud Lake property, Nichols advised Behm that he wanted to show the property to his partner, that he would get in touch with Behm at a later date, and that Behm could reach him at the Mt. Prospect Holiday Inn in room number 358. At trial, Behm identified the defendant Reddock as the man he had known as Nichols and the one to whom he had shown the Mud Lake property on August 14th.

Celia Rosenzweig testified that on the morning of August 16, 1968, the deceased prepared to take a trip. Over objection of defense counsel, she related a conversation she had with her brother, saying, “He said he was going to look at the land * * * and that Mr. Reddock would pick him up across the street on the corner * *

Later on the day of August 16th, two men came to see Behm at his Grayslake office but he was not in. Behm’s employee identified the deceased as one of these men but could not identify the other. At 6:25 P.M. that day, the deceased registered at the Waukegan Motor Inn. Registering to share the room with deceased was one “W. Bradley.” A handwriting analyst testified that the signature of “W. Bradley” indicated that the individual was, in fact, the defendant Warren Reddock. William Thompson, assistant manager of the Inn, testified that on an evening in the middle of August, 1968, in the restaurant of the Inn, he joined in a conversation between the deceased and another man and discussed real estate development in the general area; that on the following morning he observed the same men, casually dressed, and that the man accompanying the deceased carried a small tool chest. At the trial, Thompson identified the deceased from a photograph but upon being asked whether the man who he had seen with the deceased was in the courtroom Thompson identified a deputy sheriff. Over defense objections, Thompson was then called as a court’s witness and, in answer to the court’s questions, testified that he had been shown two photographs in October, 1971, that he had identified the subject of one as the deceased and the other (a picture of defendant) as the man who accompanied him.

On the morning of August 17, 1968, Celia Rosenzweig received a letter from the deceased, postmarked August 16, 1968, in McHenry, Illinois, in which he informed his sister that he would be leaving for Monaco and gave her an address and telephone number where he could be reached. Later that morning, Celia received a telephone call from her brother telling her, “Because of the downpour on Friday, he had not been able to go out and look at the land and so their plans would be changed and they would go to Monaco via Montreal.” He was never seen alive nor heard from again after August 17.

On that date, a man purporting to be Harvey Rosenzweig checked into the O’Hare Travelodge Hotel. A handwriting analyst testified that the signature of Harvey Rosenzweig on the registration card was not written by the deceased and that the printing of the address, city and state on the card was in fact executed by the defendant. On August 19, 22 and 27, checks were written on Harvey Rosenzweig’s checking account; defendant’s fingerprints were found on two of these checks and a handwriting analyst testified that the defendant had signed the name Harvey Rosenzweig on aH of them. Beginning August 17, and through the month of September, the deceased’s Carte Blanche credit card was used in New York, Hong Kong, Mexico, and Montreal. A handwriting analyst testified that the Harvey Rosenzweig signatures on the receipts had not been written by the deceased. Although there was no testimony that the signatures on these receipts had been written by defendant, his fingerprints were found on one of the receipts from Mexico, dated September 18.

On September 30,1968, at a hotel in Jamaica, defendant conversed with Raymond Raedel, told Raedel that he was a surgeon at Mt. Sinai Hospital in Chicago and that he lived on Bryn Mawr Avenue in Chicago with his aunt and her daughter. When, on the foHowing day, Raedel complimented defendant on the sport coat he wore, defendant informed Raedel that he had purchased it in Hong Kong and opened the jacket to show the Hong Kong label.

In September of 1968, concerned when the deceased did not return home as scheduled, his sister attempted to contact him at the Monaco address and phone number which she had been given; she discovered that both the address and phone number were non-existent.

On September 26, 1968, two hunters found a badly decomposed human body on the Mud Lake property; a dental examination proved this to be Harvey Rosenzweig’s body. The clothing on the body was very similar to that which deceased was described as wearing when last observed by Thompson at the Waukegan Inn. His pockets were empty and one had been turned inside-out.

The state of decomposition prohibited an autopsy but a pathologist testified that a large gaping fracture of the left side of deceased’s head was, in his opinion, the cause of death and that the wound had been caused by one or two blows from a blunt instrument. He further testified that, in his opinion, death occurred four to six weeks prior to discovery of the body.

A hatchet, which appeared to have been new, was discovered in Squaw Creek, approximately 45 feet from the body. At the trial, it was demonstrated that the blunt end of the hatchet fit into the rectangular hole in the back of the deceased’s skull. Nothing on the skull or the hatchet indicated that the hatchet was the murder weapon but there was testimony that the skuH fracture was caused by an extremely similar, if not identical hatchet. Checking hardware stores in an attempt to trace those which carried that particular brand of hatchet, two deputy sheriffs located one store in McHenry, Illinois; there was no evidence, however, that the hatchet discovered was actually purchased at that store.

Four major issues, three containing sub-issues, are raised in defendant’s original brief: (1) the court erred in admitting irrelevant evidence and incompetent hearsay testimony; (2) the court erred in calling William A. Thompson as a court’s witness; (3) the court erred in allowing the handwriting analyst to use certain of defendant’s handwriting exemplars; and (4) defendant was not proven guilty beyond a reasonable doubt. In a supplemental brief, defendant raises the issue that his sentence was excessive.

I. Did the court err in admitting irrelevant evidence and incompetent hearsay testimony?

Defendant argues that the court erred in admitting the hatchet since there was no compliance with the rule that to be admissible, a weapon must be connected to both the crime and the defendant. People v. Germany, 28 Ill.2d 154, 156-157 (1963).

The hatchet, found 45 feet from the body, was fairly new when discovered and its blunt end fit into the hole in the victim’s skull. In the opinion of a criminalistics expert, the hatchet caused the hole in the skull, although not to the exclusion of all other similar hatchets. While this evidence tended to circumstantially link the hatchet to the crime, the State concedes that the only evidence linking defendant to the hatchet was the fact that the hatchet could be purchased in McHenry, Illinois and that the decedent had mailed a letter in that city on the day before he was last seen alive. This evidence does not sufficiently link defendant to the hatchet and, consequently, the hatchet should not have been admitted.

In Germany, supra, our Supreme Court held that a toy pistol introduced during a robbery trial, although found in defendant’s possession, had not been connected in any manner with the crime and was inadmissible. However, it was held that since defendant had been tried in a bench trial, the admission of the pistol was not so prejudicial as to constitute reversible error. In the instant case, there was sufficient evidence linking the hatchet to the crime but not to the defendant. We hold that in this bench trial, as in Germany, the introduction of the weapon did not amount to reversible error.

Defendant alleges error in the admission of Carte Blanche credit card invoices indicating charges on Harvey Rosenzweig’s credit card. It is argued that these invoices were irrelevant in proving the crime of murder.

We find the invoices to be relevant: each had been written after August 17, 1968, the handwriting expert testified that decedent’s signature on the receipts had been forged, and defendant’s fingerprints were found on one of the invoices. The invoices provided circumstantial evidence that subsequent to August 17, 1968, someone used decedent’s credit card and forged his signature; the fingerprints indicated that this person was the defendant. The fact that the invoices in question were all dated after August 17th added another link to the State’s chain of circumstantial evidence toward establishing the date of the crime.

Defendant attacks the testimony of Raedel as being prejudicial and irrelevant. Claimed prejudicial is Raedel’s testimony to a conversation with defendant wherein the defendant told him, “He hated cats. He’d like to dissect them if he could.” The court, over objection, found the statements germane to the issues. This was error but, in our opinion, was not sufficient to cause reversal. On the balance of Raedel’s testimony, defendant raised objections to specific questions by the State; no objections were based upon the admissibility nor was any motion made to strike his testimony as irrelevant. The question of whether Raedel’s total testimony was admissible was never raised in the trial court and cannot be raised for the first time on appeal. People v. Linus, 48 III.2d 349, 355 (1971).

Nevertheless, Raedel’s testimony was relevant in that it may have indicated to the trier of fact that defendant was assuming decedent’s identity. Decedent lived on Bryn Mawr Avenue in Chicago with female relatives; defendant, in his conversation with Raedel, related a similar situation as his own. Decedent had audited the accounts at Mt. Sinai Hospital in Chicago; defendant told Raedel that he was a physician at that same hospital. Raedel’s testimony of defendant’s Hong Kong purchase of a sport jacket was relevant in that decedent’s signature had been forged on a Carte Blanche purchase made in that city.

Defendant alleges that reversible error occurred when decedent’s sister was allowed to testify that upon leaving their home on August 16, decedent stated that he was meeting defendant in order to view the property, and that it was error for her to testify concerning the substance of the phone conversation which she had with decedent the morning of August 17. It is argued that such testimony was hearsay and not admissible as an exception to the hearsay rule.

The State argues that although hearsay, the statements fall within the exception to the rule recognized in Boyer Chemical Co. v. Industrial Com., 366 Ill. 635 (1937). Boyer was a workmen’s compensation case wherein a witness testified that, prior to returning to Chicago from vacation, the deceased told the witness that he was going to call on several druggists for business purposes on the way. The court held admissible, statements by a person deceased at the time of trial, made at the time of his departure upon a journey with reference to his destination. It was further held that the test in determining admissibility is whether the declaration is so separated from the act by lapse of time as to render it probable that the party making the declaration was speaking from design rather than instinct.

Defendant correctly notes that the Illinois decisions following Boyer and the exception to the hearsay rule recognized therein, are all civil or workmans compensation cases. (See, e.g., Grola v. Industrial Com., 388 Ill. 114 (1944).) We have, however, researched the criminal cases concerning this exception in other jurisdictions. (See, Annot., 113 A.L.R. 268 (1938).) The most recent decision containing a thorough analysis and summary of the law is State v. Vestal, 180 S.E.2d 755 (1971), wherein the trial court permitted the wife of a murder victim to testify regarding the deceased’s statement made prior to departure from their home in which he spoke of his plan to travel with the defendant on a business trip. The Supreme Court of North Carolina held that although hearsay, the statement was properly admitted as an exception to the hearsay rale in that it satisfied the two-fold basis for hearsay exceptions: necessity (provided by the unavailability of the declarant), and a reasonable probability of truthfulness, in which regard the Court stated:

“It is the normal, natural, customary routine for a man leaving his home, or office, upon an out-of-town trip to inform some member of his family, or an employee or business associate, of where he is going, with whom and when he will return. Of course, the particular declarant on the particular occasion may falsely state these matters to his wife or to his business associate. The credibility of his statement on the particular occasion is always open to question, but that is a question for the jury. The fact that in the overwhelming preponderance of such instances the statement is true, because it has no purpose or significance except to promote the orderly conduct of the declarant’s domestic or business affairs, supplies that reasonable probability of truth in the particular instance which justifies the court in permitting the jury to hear the statement and determine its truth or falsity.” 180 S.E. 2d at 773.

In holding the testimony admissible, the Court noted that it was bringing the law into accord with decisions of other courts and with the eminent scholars in the field of evidence. Other courts in recognizing the exception have stated that it is firmly established by the overwhelming weight of judicial opinion. (See, e.g., State v. Thornton, 185 A.2d 9 (S.Ct. N.J., 1962), cert. den. 374 U.S. 816, 10 L.Ed.2d 1039, 83 S.Ct. 1710 (1963).) We find the rationale of Vestal controlling and hold that deceased’s statements made to his sister were properly admitted to show his intent to accompany the defendant in viewing the land and that he, in fact, left home on that ostensible mission. The testimony does not show, nor would it be competent to show any intent on the part of defendant to look at the land or to set out upon such a trip. Vestal, at p. 773.

II. Did the court err in calling William A. Thompson as a court’s witness?

Defendant argues that it was error to call Thompson, the assistant manager at the Waukegan Inn, as a court’s witness after he had identified a deputy sheriff as the man whom he had observed in company with the deceased on two occasions at the Inn. Prejudice is alleged to have occurred as a result of the court’s questioning when it was revealed that prior to trial Thompson had (from a photograph) identified defendant as the man who had accompanied the deceased.

The foundation necessary for the calling of a court’s witness is that his integrity or veracity is doubtful and that neither side desires to vouch for his testimony. Additionally, the testimony must relate to direct issues and be necessary in order to prevent a miscarriage of justice. People v. Dennis, 47 Ill.2d 120, 131-132 (1970); People v. McKee, 39 Ill. 2d 265, 269-271 (1968); People v. Moriarity, 33 Ill.2d 606, 614-616 (1966).

In reviewing the cases concerning this issue, we have found that all contain a factual situation wherein a witness was hostile, his integrity or veracity doubtful, and his veracity vouched for by neither party. These elements were not present in the case at bar. There was no allegation that Thompson was evasive or hostile or that the State could no longer vouch for his veracity. The State only alleged that the witness made “an honest mistake about identification”. We have been cited no case authority indicating that this is an adequate foundation for the calling of a court’s witness and find that it was error for Thompson to be so called. We hold, however, that the error is not reversible in that the trial judge did not rely upon Thompson’s testimony in determining defendant’s guilt. During closing argument the judge remarked to defense counsel, “Certainly you got your biggest break from Mr. Thompson, didn’t you?” During the hearing on post-trial motions, the judge stated to defense counsel:

‘1 have to admit that, as you notice, I’ve been smiling. It isn’t because of the case but the reference to the witness Thompson. I thought that he was your best witness, and I am addressing myself to the defense counsel now, and I thought even the Judge helped your case along with the interrogation of Mr. Thompson.”

III. Did tlie court err in allowing the use of certain handwriting exemplars?

While defendant was incarcerated awaiting trial he wrote a letter which he gave, unsealed, to the jail authorities for screening and mailing. Defendant was aware of regulations providing for screening of all correspondence. The letter was turned over to an assistant state’s attorney who had it photographed and then had the original sent to the intended addressee. A copy of the letter and the envelope were admitted into evidence and were used as exmplars by the handwriting analyst. Defendant urges error on several grounds in the admission of this evidence.

Defendant first argues that prison authorities cannot constitutionally screen or censor correspondence emanating from prisoners. This argument was waived at trial when defendant’s counsel stated:

“Your Honor, Pm not saying the Sheriff of this County doesn’t have a right under certain circumstances to censor mail. It’s one thing to censor mail and make sure that the security of the jail remains intact, for which the public is concerned. It’s quite another thing to bring in any documents that don’t have anything to do with adverse security of the jail, to bring those into evidence # * and use them in fact against him.” (Emphasis added.)

In view of this admission we need not concern ourselves with the burgeoning decisions involving prison officials’ authority to censor inmates’ correspondence. See, e.g., Martinez v. Procunier, 354 F.Supp. 1092 (N.D. Cal. 1973); Inmates of Milwaukee County Jail v. Petersen, 353 F.Supp. 1157 (E. D. Wis. 1973); Collins v. Schoonfield, 344 F.Supp. 257 (D. Md. 1972); Woods v. Yeager, 463 F.2d 223 (3d Cir. 1972); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert, denied; Sostre v. Oswald, 404 U.S. 1049, 30 L.Ed.2d 740 92 St.Ct. 719 (1972).

Defendant then contends that the use of the letter violated his constitutional rights of privacy and protection against unreasonable searches and seizures.

We have found no Illinois case in point on this portion of the argument However, in Stroud v. United States, 251 U.S. 15, 64 L.Ed. 103, 40 S.Ct. 50(1919), letters, written by a prison inmate while awaiting trial and containing inculpatory language, were introduced into evidence. The Court held that defendant’s fourth and fifth amendment rights had not been violated.

“In this instance the letters were voluntarily written, no threat or coercion was used to obtain them, nor were they seized without process. They came into the possession of the officials of the penitentiary under established practice, reasonably designated to promote the discipline of the institution. Under such circumstances there was neither testimony required of the accused, nor unreasonable search and seizure in violation of his constitutional rights." 251 U.S. at 21-22.

Stroud is still the law today and has been followed in several decisions. In State v. Johnson, 476 S.W.2d 516 (S.Ct. Mo. 1972), cert, den., (U.S.) 34 L.Ed.2d 105, 93 S.Ct. 144 (1972) (a restatement of the rationale of State v. Johnson, 456 S.W.2d 1 (1970)), a letter containing incriminating admissions was written by defendant while confined in jail, intercepted by jail officials with defendant’s consent pursuant to censorship regulations, and subsequently admitted into evidence. The court held that the use of the letter did not violate the privilege against self-incrimination or the constitutional protection against unreasonable searches and seizures. Denson v. United States, 424 F.2d 329 (10th Cir. 1970), cert. denied, 400 U.S. 844, 27 L.Ed.2d 80, 91 S.Ct. 88 (1970), concluded that there was no violation of the privileges against self-incrimination and unreasonable search and seizure when copies of coded messages, containing self-incriminating statements, were introduced into evidence, the messages having been voluntarily written while in prison and given to inmate orderlies who in turn gave them to penitentiary officers. In Baker v. State, 202 So.2d 563 (S.Ct. Fla. 1967), it was held that there was neither invasion of defendant’s right to privacy nor illegal seizure when a letter which defendant had written while incarcerated and given to a jailor for mailing, was read as a standard security measure, copied and used against him at trial. The court in Hayes v. United States, 367 F.2d 216 (10th Cir. 1966), held that there was no violation of the right to privacy when a voluntarily written letter, copied in the usual course of prison administration, had been introduced into evidence. See also United States v. Wilson, 447 F.2d 1 (9th Cir. 1971), cert. denied, 404 U.S. 1053, 30 L.Ed.2d 742, 92 S.Ct. 723 (1972).

We have neither been cited nor found a decision which disallowed admission of a copy of a prisoner’s letter which had been voluntarily written with knowledge that it would be scrutinized by prison officials pursuant to censorship regulations. A distinction might be drawn between the cited cases and the case at bar for here it was not the written admissions of defendant which were used against him but his handwriting itself. However, for the purposes of this issue, we do not find this distinction sufficient to justify a departure from the law as set forth in the pertinent cases. We find no error in admission of defendant’s letter.

Defendant also argues that the letter, written to Jerry Rubin, was used to prejudice the trier of fact by linking defendant to a known radical. We note that the State introduced the letter for a limited purpose, that of a handwriting exemplar, and that the trial judge stated at. the time it was admitted, and subsequently restated, that he had not and would not read the letter. Therefore, no error occurred.

Defendant alleges that his rights under Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), were violated when, during an interrogation session, and after stating that he did not wish to discuss the charges, defendant gave certain handwriting exemplars. This argument is untenable in that defendant voluntarily gave the authorities the handwriting exemplars, the assistant state’s attorney having testified that, after giving defendant his Miranda warnings, defendant stated:

“A. * * * he did not wish to discuss the charges against him on the basis of the advice of * * * counsel.
# # #
A. I then asked him for handwriting samples.
# # *
A. I said, ‘Mr. Reddock, I want to take handwriting samples from you.’
# # #
A. He said, ‘I will give them to you voluntarily.’
Q. Did he say anything else?
A. He said, ‘I’m sure you can get them anyway.’ ”

Additionally, in concluding that no error occurred, it appears that handwriting exemplars are not protected by the fifth amendment privilege against compulsory self-incrimination. See, United States v. Dionisio, (U.S.) 35 L.Ed.2d 67, 93 S.Ct. 764 (1973); Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (1967); People ex rel Hanrahan v. Power, 54 Ill.2d 154 (1973).

IV. Was defendant proven guilty beyond a reasonable doubt?

Under this issue, defendant raises two sub-arguments, one relating to Louis Behm’s in-court identification of defendant as the man to whom he showed the Mud Lake property, and the other, to the testimony of attorney Kahn concerning a telephone conversation he had with a man purporting to be defendant. It is unclear whether these sub-arguments are directed toward the testimony’s weight or admissibility; we will consider the issue from both aspects.

Prior to trial, Louis Behm was unable to identify defendant from twelve photographs shown him. He also failed in an effort to compose a picture of defendant with an “identi-kit.” Behm testified that on a subsequent visit by the police, he was shown one photograph and identified that as the defendant. It is now alleged that this pretrial identification was unnecessarily suggestive and conducive to a mistaken identification of defendant at trial.

We find no error in Behm’s in-court identification because, first, defendant failed to object to the suggestiveness of the pretrial identification, precluding consideration of the issue (People v. Rodgers, 53 Ill.2d 207, 213 (1972)), and second, we are convinced that Behm’s in-court identification had “an origin independent of the photographic identification proceedings and was uninfluenced thereby,” he having had an excellent opportunity to view defendant (People v. Rodgers, supra). Behm testified that he was with the prospective buyer for an hour; that although he never looked at the man’s face for any long, uninterrupted period of time, he did glance at his face occasionally and spent a total of 15 minutes in doing so; that he felt that he had observed the man’s face closely. See People v. Moore, 7 Ill.App.3d 315, 317 (1972) and cases cited therein.

Questioning the admissibility of part of attorney Kahn’s testimony, defendant alleges that there was no proof that the man Kahn spoke to was defendant except for the hearsay testimony relating deceased’s introduction of the man over the telephone.

In a criminal case, telephone conversations are competent evidence provided that the identity of the person with whom the conversation was had is established by direct evidence, facts or circumstances. (People v. Nichols, 378 Ill. 487, 490 (1942); People v. Conway, 3 Ill.App. 3d 69, 72 (1971).) In the instant case, the identity of the party to whom Kahn spoke could be circumstantially proven by considering several factors: the individual was introduced to Kahn by defendant’s name and such introduction was not disputed; the individual gave Kahn details of the proposed business transaction; but most importantly was that during a conversation with Behm, defendant spoke of the arms corporation and its proposed investment activities, indicated that a man named Rosenzweig would run the operation, and named Kahn as Rosenzweig’s attorney.

Were we to assume error in the admission of Kahn’s testimony concerning the conversation, the error would be harmless. The fact that defendant knew the deceased and the details of their proposed business ventures, if not properly disclosed by Kahn’s testimony, was properly and more convincingly established by Behm’s testimony.

We have carefully reviewed the evidence in this case and find that, although circumstantial in nature, the evidence is not only consistent with defendant’s guilt, but inconsistent with any reasonable hypothesis of innocence. (People v. Branion, 47 Ill.2d 70, 77 (1970).) The evidence produces a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Marino, 44 Ill.2d 562, 580 (1970).) While one might not have been satisfied beyond a reasonable doubt as to each link in the chain of circumstances, the evidence, considered as a whole, proves defendant’s beyond a reasonable doubt. People v. Marino, supra.

V. Was defendant’s sentence excessive?

Defendant was sentenced on December 8, 1971, to serve a term of from 30 to 50 years in the state penitentiary. In aggravation, the State produced evidence indicating numerous convictions for fraud and forgery. The defendant alleges that this sentence is not in accord with the Unified Code of Corrections, Ill. Rev. Stat. 1973, ch. 38, sec. 1005— 1 — 1, et seq.

Although defendant was sentenced prior to the effective date of the Code, its provisions apply herein because direct appeal was not finally adjudicated as of the effective date of the statute. People v. Chupich, 53 Ill.2d 572 (1973); People v. Harvey, 53 Ill.2d 585 (1973); People v. Keating, 2 Ill.App.3d 884 (1971); People v. McCloskey, 2 Ill.App.3d 892 (1971).

Under the prior statutes, the penalty for murder was the same as that established by the new Code, i.e., a 14 year minimum sentence. (See Ill. Rev. Stat. 1967 and 1971, ch. 38, sec. 9 — 1.) The trial judge had the use of a presentence report and stated that he had considered many points in handing down the sentence. Our review discloses that the trial court followed the sentencing procedures of the Code and the motion to reduce sentence is, therefore, denied.

Finding no reversible error, we affirm the judgment of the lower court.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.

       In the first Johnson decision, the court held that the use of the letter was proper but reversed and remanded on the grounds that certain prejudicial portions of the letter should have been deleted. Defendant was retried, found guilty and again perfected an appeal. In the second Johnson decision his conviction was affirmed.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Glen Sterkowicz, Defendant-Appellant.
    (No. 72-205;
    Second District —
    August 2, 1973.
    Schirmer, Schirger, Graff & Beger, of Freeport, for appellant.
    F. Lawrence Lenz, State’s Attorney, of Freeport, and James W. Jerz, of Model District State’s Attorneys Office, of Elgin, for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harrison Havener, Defendant-Appellant.
    (No. 11583;
    Fourth District —
    August 1, 1973.

      John F. McNichols, District Defender, of Springfield, (J. Daniel Stewart, Assistant Defender, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (James W. Jerz and Charles D. Sheehy, Jr., both of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The defendant was indicted for robbery, aggravated battery and theft.

The jury found the defendant guilty of theft of property over $150 in value, but returned no verdicts on either the robbery or aggravated battery charge. On denial of probation, the defendant was sentenced to the penitentiary for a period of 6 to 10 years.

The defendant raises five issues: (1) can the jury verdict of guilty on the theft charge stand under the facts in the absence of a verdict on the robbery or aggravated battery charge; (2) was the defendant’s guilt established beyond a reasonable doubt; (3) did the trial court err in admitting into evidence the defendant’s 1961 conviction for robbery to impeach his credibility; (4) was the defendant deprived of a fair trial because in his closing argument the prosecutor stated to the jury that the defendant was £a convicted robber that is trying to stay out of jail’; (5) is the defendant’s sentence of 6 to 10 years excessive and improper because it violates the principles of indeterminacy. We affirm the conviction and reduce the sentence.

The Unified Code of Corrections, Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1, et seq., became effective while this case was pending on appeal, and had not reached a final adjudication. Under such circumstances, the punishment provided under the new Code applies. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731.) Theft of property exceeding in value of $150 is a Class III felony, and under the Code, par. 1005 — 8—1, the minimum term shall be 1 year unless the court having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not however be greater than one third of the maximum term set in the case by the court. The record on the defendants application for probation indicates he was arrested in 1959 or 1960 in Los Angeles for burglary and by his own testimony escaped. In 1961, he was charged and convicted with armed robbery under an alias and received 3 years in the penitentiary. In 1964, he was extradicted to California for the escape previously noted and received 1 year in the county jail. Coupled with defendant’s conduct and testimony in this case, we are constrained to hold that the trial court was justified in imposing more than the minimum, but that the Code of Criminal Corrections now applies and the sentence must be vacated and the cause remanded to the trial court for the imposition of proper sentence.

The defendant contends that the failure of the jury to return a verdict on the robbery charge and on the aggravated battery charge automatically acquits him of the theft charge and he should be discharged. The theory is the failure to return a verdict on the robbery and aggravated battery charge amounts to a not guilty verdict, and such a verdict is inconsistent with a guilty verdict on the theft charge. This argument is pretty well laid to rest in People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840, where the defendant was convicted of solicitation for murder but was found not guilty of attempted murder and murder. In that case, the Supreme Court said at p. 362: “Our courts have followed the view * * * that: ‘In law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, but arising out of the same state of facts.’ ” In People v. Tolentino, 68 Ill.App.2d 480, 216 N.E.2d 191, in facts somewhat similar to the case at bar, the court said: “Where the record contains evidence upon which a finding of theft may be made, the fact that the evidence would have justified the corut in finding the defendant guilty of robbery is not a matter of which the defendant can complain. The record also would have justified a finding of guilt of theft from Logan.” Likewise in the case at bar, the offense of theft would be completed upon the exerting of unauthorized control over the property of the victim with the intent to deprive him permanently of it without regard to whether the property had originally been taken by force from the person or presence of the owner, or whether great bodily harm had been done to the victim. The police officers testified that the wallet was in the defendant’s car a half hour or more after the circumstances upon which robbery and aggravated assault is based. The record is silent as to any justifiable possession by either him or his companion.

The defendant also urges that under People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695, it was error to admit into evidence a 1961 robbery conviction for the purpose of impeachment. The defendant was released on this charge in 1964. It should be kept in mind that the defendant here was indicted for robbery, a similar offense and not found guilty. It likewise should be remembered that Rule 609 of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States to which our Supreme Court refers in Montgomery that such evidence is admissible “if the crime, (1) was punishable by 6 * ® or imprisonment in excess of 1 year under the law under which he was convicted.” The conviction here stated is clearly admissible under that provision of the Rule on the question of the defendant’s credibility. It is likewise arguable that the jury believed this defendant on the issue of aggravated battery and robbery and it would thus seem that he is hard put to show that evidence of the prior conviction in truth affected his credibility or prejudiced him in any way.

The defendant contends that the following statement made by the prosecutor in his final closing argument is prejudicial, to-wit: “But when all is said and done, you come down to this: Are you going to believe just Kidd and our police officers or are you going to believe a convicted robber that is trying to stay out of jail?” It is noted that this comment was restricted to credibility and was in reply to twice-mentioned reference by defense counsel in argument to the defendant’s previous record. From it the defendant argued that if the defendant actually stole this wallet, his previous experience would have suggested that he toss it out the window instead of keeping it. The State’s Attorney’s argument was invited and was a proper and appropriate argument on this record.

The defendant, the victim (Jesse Kidd) and one Janice Germann, had been drinking at a Springfield tavern and before the closing hour Kidd agreed to go with Miss Germann to her apartment to have a drink. They left together about one o’clock A.M. and drove in Kidd’s car to a driveway between a house and a trailer. As Kidd stepped out of his car, he was struck in the face and identified the defendant as his attacker. He then stated that the defendant and Miss Germann beat him up and took his wallet. He did not report the incident to the police until they contacted him about an hour later.

In the interim, the police had arrested Mr. Havener and Miss Germann for a traffic offense and found Mr. Kidd’s wallet in Miss Germann’s hand. One officer testified that he saw the defendant hand the wallet to her after their car had been stopped and they were standing outside the car. Another officer testified that he saw the wallet in Miss Germann s hand. The defendant denied that he and Miss Germann beat up Mr. Kidd and denied that he ever had Kidd’s wallet. He also testified that he and Miss Germann left the tavern together after dropping off two other women who needed a ride to their home. They got into an argument and he started to take her back home. When the police officer took after him, he tried to elude him, but was unsuccessful. The witness’ testimonial differences about clothing has been resolved by the jury and we could not with propriety disagree. The police officer noted blood on the defendant’s clothing and on his hands. The defendant testified that Miss Germann had bitten his lip, although no mark on the lips was observed by the officer. We think this evidence establishes the defendant’s guilt beyond a reasonable doubt and shows that the wallet was one belonging to Kidd, contained more than $160, was in the car with the defendant and Miss Germann at the time of the arrest, and since Kidd was nowhere around, it is quite apparent that the defendant and Miss Germann were knowingly exerting unauthorized control over Jesse Kidd’s wallet and its contents, and intended to permanently deprive Jesse Kidd of the use of that property. There was neither testimony nor inference that Kidd had given them the wallet or that they took it jokingly or that they intended to return it to him — important circumstances which if supportable would, beyond argument, have been asserted.

Accordingly, the judgment of the trial court is affirmed, the sentence is vacated and the cause is remanded to the trial court for the imposition of an appropriate sentence under the Unified Code of Corrections.

Judgment affirmed; cause remanded for appropriate sentence.

CRAVEN, P. J., and SIMKINS, J„ concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Slaten, Defendant-Appellant.
    (No. 11847;
    Fourth District —
    August 1, 1973.
    John F. McNichols, District Defender, of Springfield, for appellant.
    George P. Wittman, State’s Attorney, of Jerseyville, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Kenneth Slaten appeals from a judgment dismissing his post-conviction petition in which he challenged the legal sufficiency of the indictment upon which his conviction was based, and also urges that he had not knowingly and intelligently waived his right to counsel.

On July 7, 1966, the grand jury returned a two count indictment. Count I charged defendant with burglary in that * * knowingly entered into a building, ‘The American Legion Club’ at Grafton, Jersey County, Illinois with intent” etc. Count II charged defendant with the offense of theft under $150 of U.S. bills and currency, “* * s the property of the American Legion Club, Grafton, Illinois °

On July 11, 1966, defendant appeared in court and was handed a copy of the indictment. The charges and penalties were explained to him. He was without counsel and entered a plea of not guilty. During this initial appearance before the court the following appears in the record:

“Q: Mr. Slaten, you have a right under the laws of the State of Illinois to be represented by an attorney. Do you intend to get an attorney to represent you?
A: No:
Q: You don’t intend to retain an attorney?
A: I don’t know just yet.
Q: If you desire, the Court will give you a continuance at this time, on the arraignment, to consult with an attorney and we will continue the arraignment until Wednesday morning, or we can go ahead without an attorney. If you can show the Court that you are an indigent person and don’t have any funds to employ an attorney, the Court will appoint an attorney to represent you. Do you understand that?
A: Yes.
Q: Do you desire the Court to appoint an attorney or do you desire to have a Court-appointed attorney?
A: I believe I will wait and see if I can get me one.
Q: All right. At this time the Court will ask you how you plead?
A: Not guilty.”

Defendant next appeared before the court on February 1, 1967. The following appears in the record:

“THE COURT: Mr. Slaten, are you ready to go to trial this morning?
THE DEFENDANT: Yes, I’m ready.
THE COURT: Do you have a lawyer to represent you?
MR. SHAIKEWITZ: Your Honor, at this time, I would like to represent to the Court and request the Court to permit the law firm of Wiseman, Hallett, Mosel and Shaikewitz to withdraw from this case, and for the grounds therefor, state to the Court that the defendant has failed wholly to consult with me, or with us, as his attorneys, in the defense of his case; that we wrote him in December and asked him to come in our office so that we could discuss his case with him; that approximately last Saturday— about a week ago last Saturday, I asked him to be in our office and he failed to do so. We just have absolutely no defense prepared for him; he made certain promises to pay a fee and he has paid none of this, and I feel that without his consultation — and even forgetting about the fee — it is impossible to properly defend him and I respectfully ask the Court to permit me to withdraw as his attorney.
THE COURT: Do you have anything to say about this, Mr. Slaten?
THE DEFENDANT: I would like to postpone it to get another lawyer.
THE COURT: Well, you have five hundred dollars in cash bond there in the Clerk’s office, don’t you?
THE DEFENDANT: Yes.
THE COURT: That’s your money, isn’t it?
THE DEFENDANT: Yes.
THE COURT: It was put up by you for you to post bond, wasn’t it?
THE DEFENDANT: Yes.
THE COURT: Why didn’t you pay Mr. Shaikewitz the money?
THE DEFENDANT: He wants to withdraw.
THE COURT: I will let him withdraw and you will be here on the 27th day of February, ready for trial. If you don’t have a lawyer on the 27th day of February, you will be tried with or without a lawyer. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: You come in here on that morning ready to be tried, do you understand?
DEFENDANT: I understand.
THE COURT: Your bond will be continued for one month. If you are not here that day, I will forfeit your bond. I will tell you, Mr. Petitt, if he wants to plead guilty, I’m not sure I will let him.”

On February 28, 1967, defendant, without counsel, again appeared and the following pertinent portions of the record are quoted:

“Let the record show that the defendant, Kenneth Slaten, is present in open court; likewise, present in open court is the State’s Attorney of Jersey County, Illinois, Alvin H. Petitt.
Mr. Slaten, it is my understanding that you desire to make a motion at this time to withdraw your plea of not guilty and have leave to enter a plea of guilty to the crime of burglary, is that right?
A: Yes.”
# # e
“MR. PETTIT: I will withdraw the charge of theft, Your Honor.”

The trial judge again explained the burglary charge and explained the penalty which could be imposed. The court made no inquiry as to why defendant appeared without counsel and no inquiry as to indigency. The only reference to counsel is as follows:

“Court: Do you understand that under the law you are entitled to be represented by counsel of your own choosing as to counsel appointed by the court. Do you understand that?
A: Yes.”

The court then ascertained that no promises had been made to defendant, accepted the plea and entered judgment of conviction. The trial judge then told defendant that he had a right to file a Petition for Probation and that he would entertain the petition at the time of the hearing in aggravation and mitigation. He also advised defendant that the petition “* * * has to be in writing and the clerk has one down there for you. Mr. Clerk, let Mr. Slaten fill one out.”

On March 2, 1987, defendant appeared, without counsel, (and the record discloses no reference to counsel by the defendant or the court) and hearing on the Petition for Probation and in aggravation and mitigation was held. Defendant was the only witness at this hearing and was questioned by the State’s Attorney. He testified that he had no job, that he had worked for Valley Steel in Carlinville, Illinois for “about three months” and that that employment was “about two or three months ago” and that his last employment preceding the Valley Steel job was as a car washer at a garage in Alton, Illinois “° * * last year.” He also testified that he had once been convicted of a Dyer Act violation and had been released from prison in 1963.

The thrust of the trial judge’s statement to the defendant, made at the hearing on February 1st, was clearly to the effect that since defendant had posted a $500 cash bail bond with clerk no counsel would be appointed. In short if defendant failed to appear with privately retained counsel he would be tried without counsel. This statement to the defendant is in direct contravention of the holding in People v. Eggers, 27 Ill.2d 85, 188 N.E.2d 30.

The record discloses that at no time during defendant’s three appearances before the court was any inquiry made with a view to ascertaining whether or not defendant was indigent. At the time the plea was taken the court made no inquiry concerning defendant’s ability to secure counsel or whether he had made any effort to do so, nor did he inquire whether or not defendant wished to proceed without counsel. It is also apparent from the record that the passing reference to the right to counsel, made at the time this plea was taken on February 28, 1967, may be characterized as the sort of “routine inquiry” proscribed in People v. Bush, 32 Ill.2d 484, 207 N.E.2d 446, where the court said with reference to right to counsel “a finding of waiver is not lightly to be made [citations] and the record must show that an accused was offered counsel and that he intelligently and understanding^ rejected the offer. [Citations.] In order that the court may be sure that an accused fully understands his right to counsel and intentionally relinquishes that right, something more than a routine inquiry by the court is required.” We view this portion of the case as being controlled by People v. Hessenauer, 45 Ill.2d 63, 256 N.E.2d 791, where the court held “Because of the critical nature of the arraignment, an accused is entitled to the assistance of counsel whether or not he requests it. [Citations.] A finding of waiver will not be made unless it appears from the record that at each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected, the representation of appointed counsel.” These requirements were not met here and we therefore reverse.

The indictment in question charged that “* * * Kenneth Slaten * * * without authority, knowingly entered into a building, “The American Legion Club’ at Grafton, Jersey County, Illinois with intent” etc. Defendant urges that the indictment is deficient since it fails to allege ownership, possession or occupancy. He cites, among other cases, People v. Miller which is without precedential authority, having been disposed of by confession of error by the People. We find no merit to defendant’s argument as to the insufficiency of the indictment. It meets the standards described in People v. Viar, 131 Ill.App.2d 983, 268 N.E.2d 872.

The dismissal of defendant’s petition for post-conviction relief was error, and that judgment is reversed. Defendant’s conviction is reversed, the sentence is vacated and the cause remanded with directions to permit defendant to plead anew.

Reversed and remanded with directions.

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


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Monte William Zatz, Defendant-Appellant.
    (No. 11890;
    Fourth District —
    August 1, 1973.
    Julius Lucius Echeles, Frederick F. Cohn, and Carolyn Jaffe, all of Chicago, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Gerald Lanter and Walter H. Kasten, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The grand jury returned four indictments containing five counts of forgery. On July 26, 1971, defendant was arraigned and plead not guilty. Defendant was represented by privately retained counsel. Subsequently, defendant withdrew his plea and entered a plea of guilty. The trial court imposed a sentence of 1 to 5 years on each count, to be served concurrently.

On appeal, defendant contends that his plea of guilty should be vacated because he was not sufficiently advised of the consequences of his plea and because the trial court abused its discretion in denying probation.

The charges arose from defendant’s “knowingly delivering documents/ capable of defrauding another” and knowing said documents to have been made by someone other than the drawer. The documents consisted of checks payable to the order of various Springfield stores.

Judgment was entered on defendant’s guilty plea. Defendant filed his petition for probation and the matter was continued for a hearing. The probation officer’s report was filed recommending defendant for probation. Defendant’s motion to vacate his guilty plea for failure of the trial court to inform of the possibility of consecutive sentences was denied. The trial court denied defendant’s petition for probation, and according to agreement of the parties, considered the evidence presented at the probation hearing in aggravation and mitigation.

Defendant argues that Supreme Court Rule 402(a) (2) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(2)) requires the trial court to inform a defendant of the possibility of consecutive sentences where such exists. This portion of the rule reads:

“The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: * * # tire minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; * *

The trial court informed defendant that he might be “sentenced to a penitentiary for a period of not less than one nor more than fourteen years, that is, a sentence from one to fourteen, that is, not less than one or any number from one to fourteen and not more than fourteen.”

At the time defendant entered his plea of guilty, consecutive sentences could be entered when a person was convicted of two or more offenses not resulting from the same conduct. (Ill. Rev. Stat. 1971, ch. 38, par. 1 — 7(m).) The possibility of consecutive sentences on the forgery counts existed. The trial court dismissed defendant’s motion to withdraw his plea finding that defendant had not been prejudiced by the court’s failure to advise of the possibility of consecutive sentences.

Defendant relies heavily on People v. Flannigan, 131 Ill.App.2d 1059, 267 N.E.2d 739, where defendant plead guilty to reckless driving— second offense. Defendant had previously been convicted in a jury trial of resisting a peace officer. Sentences of 1 to 6 years were imposed on each conviction to run consecutively. The plea was entered prior to the adoption of Supreme Court Rule 402. At page 1065, the court stated:

“Where a defendant is charged with more than one crime, the manner in which he may have to serve the sentences imposed for those crimes, whether consecutively or concurrently, is obviously a consequence of his plea, and must be considered as crucial to his decision as the admonition on the maximum penalty for each of the charges. * * *.”

Hie court vacated the conviction for reckless driving and remanded for defendant to plead anew. The trial court recognized the possibility of unintentionally misleading defendant by informing him that the maximum penalty was imprisonment not to exceed six months and a fine not to exceed $1,000 when the trial court knew of the possibility of consecutive sentences.

The Flannigan case is distinguishable in that consecutive sentences were actually imposed; whereas here, concurrent sentences were imposed. Thus, resulting prejudice to Zatz is not as readily discernible. There are other cases supporting defendant’s contention, but they were also decided before the effective date of Supreme Court Rule 402. People v. Bratu, 121 Ill.App.2d 439, 257 N.E.2d 607; People v. Carpenter, 2 Ill. App.3d 372, 276 N.E.2d 457; and People v. Dixon, 2 Ill.App.3d 279, 276 N.E.2d 42.

In People v. Reed, 3 Ill.App.3d 293, 278 N.E.2d 524, the trial court accepted defendant’s guilty pleas to the crimes of armed robbery and bail jumping subsequent to the adoption of Supreme Court Rule 402. Defendant was sentenced to 2 to 5 years on the latter offense and to 2 to 6 years on the former. The sentences were to run concurrently. On appeal, defendant contended that the trial court erred in failing to advise defendant of the possibility of consecutive sentences. The reviewing court found substantial compliance with Rule 402 and noted that defendant entered negotiated pleas and knew in advance the sentence to be imposed. Reed is distinguishable from Zatz in that Zatz did not enter negotiated pleas nor is there any indication in the record that he knew of the sentence to be recommended by the State’s Attorney.

Supreme Court Rule 402 requires that defendant be informed of the possibility of consecutive sentences in order to insure an intelligent and understanding plea. Therefore, defendant’s plea of guilty should be vacated. (See ABA Standards Relating to Pleas of Guilty, Approved Draft, 1968, sec. 1.4(c) (i).)

In view of the conclusion reached, it is not necessary to consider defendant’s contention that the trial court abused its discretion in denying probation. This issue can be reconsidered by the trial court upon further proceedings in that court under the facts and circumstances now existent.

The convictions for forgery are vacated and the case is remanded to the circuit court of Sangamon County with direction to permit the defendant to plead anew.

Reversed and remanded with direction.

SMITH and SIMKINS, JJ., concur.