text:
    DANIEL P. REUTER, Plaintiff-Appellant, v. MARK J. KOCAN, Defendant-Appellee.
    Second District
    No. 82—375
    Opinion filed March 8, 1983.

      Carl F. Schroeder, of Nelson, Pietsch, O’Leary, Walters, Schroeder & Cuchna, of Wheaton, for appellant.
    R. Gary Gooding, of Gooding and Schroeder, Ltd., of Geneva, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Daniel P. Reuter, plaintiff, sued to recover for personal injuries sustained when a motor bike which he was driving on a private off-road dirt bike trail collided head on with an automobile driven by the defendant Mark J. Kocan. Plaintiff appeals from the judgment entered on the jury verdict for the defendant and from the denial of post-trial motions. On appeal he contends that the defendant was negligent as a matter of law or, alternatively, that the verdict was against the manifest weight of the evidence, and that the jury was not instructed properly.

On August 31, 1978, Daniel Reuter went to an off-road dirt bike trail with his brother Paul, defendant Mark Kocan, and Mark’s brother Charles. The dirt trail is on private property located at the corner of Routes 59 and 65 in rural Du Page County. Roughly circular, it twists through many curves. The track was rutted in many places, would change with the weather, had no set lanes, and vision along the track was obstructed by trees, high weeds and brush. No one else was using the dirt track when the Reuters and Kocans arrived.

The parties had previously used the trail for recreation 20 to 25 times each. Although the parties disagreed on whether it was local practice to ride around the trail clockwise or counterclockwise, it appeared from the testimony that the direction was set by whoever was using the track at that time. It was the practice not to ride around in the opposite direction to avoid a head-on collision.

The head-on collision took place along a “blind” curve. After the Reuters and Kocans arrived, the Dodge Colt was parked on the infield portion inside the track. Plaintiff’s brother, who owned the dirt bike, rode it first, then gave the bike to plaintiff who started out clockwise (east). “Minutes” later defendant drove the Dodge Colt onto the track also proceeding clockwise, because he wanted to “see what it was like.” He had been on the track before as a passenger in a truck when dirt bikes were on the track, and had driven on the open track in his own car when no one else was using the trail, but had not driven a car when other bikes were on the trail. After driving a short distance, defendant stopped because the track was too narrow and rutted, he made a “three-point” turn to return to the infield and proceeded counterclockwise (west). He could not maneuver off the track onto the infield because, he explained, tires blocked the path. He did not get out of the car to move the tires blocking his exit onto the infield because the car would have stalled and he did not know how to restart it. He could not recall if the car had a horn. He went an undetermined distance counterclockwise on the inside part of the track until he reached the curve, and saw plaintiff on the dirt bike moving “pretty quickly” around the curve from the inside to the outside part of the curve for only “a second” before plaintiff struck the middle of the front fender, and flew off 15 to 20 feet away, sustaining injury to his left ankle. Defendant estimated that the car blocked two-thirds of the path along the curve. Defendant could not recall if he stopped prior to the head-on collision, but said he was moving slowly. He thought that plaintiff was “far away,” at the other end of the trail, but said that he did not really know.

Plaintiff was 19 at the time of the accident and familiar with the dirt bike involved. He testified that 10 to 15 feet separated the two vehicles when he first saw the car approaching at approximately five miles per hour, that he had “no time” to apply the brakes, and that he did not know that his brother’s car was on the track before the collision. As he took the curve along the inside, he could see 10 to 20 feet ahead. Out of the corner of his eye plaintiff saw his brother and defendant’s brother 100 to 150 feet away waving their arms, but he thought they wanted their turns to ride. He took the curve at 20 to 25 miles per hour, staying to the inside throughout. He testified that he “may have” told defendant a few days after the accident that he thought he saw a dust cloud from another dirt bike and gave chase to catch it.

Defendant’s brother, Charles Kocan, testified that from his vantage point 30 feet north of where the accident occurred, he could see both vehicles approach the curve from opposite directions. He was yelling “stop” to plaintiff at the top of his voice, waving both hands over his head to catch plaintiff’s attention, but plaintiff was not looking in his direction. The collision occurred “about a second” later. He said that the Dodge Colt had been stopped for “about ten seconds.”

While it is difficult to determine from the record the exact spot defendant entered the dirt trail and the precise place of the collision, fair inferences may be reached by references of the witnesses to a diagram and photographs in evidence.

The trial court denied defendant’s motion for a directed verdict. The jury, instructed on comparative negligence, returned a verdict for defendant and against plaintiff.

Before reaching the contentions of the parties we note the unusual factual profile of this case as it bears on the standard of negligence to be applied.

Courts have applied concepts of ordinary negligence to the operation of off-road recreational vehicles. (See Annot., “Negligent Operation of Dune Buggy,” 2 A.L.R.4th 795, 796 (1980); Annot., “Negligence-Operation of Snowmobile,” 42 A.L.R.3d 1422 (1972); see also Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 1096 (under statute (111. Rev. Stat. 1981, ch. 951/2, par. 605 — 1(B)) making illegal “careless, reckless or negligent” operation of a snowmobile).) Although the courts have applied to recreational vehicle the rules of the road which govern all motor vehicles where appropriate (see Annot., 2 A.L.R.4th 795, 796 (1980)), it has been generally held that in personal injury suits the rules of the road have no application to vehicles operated on private ways or premises (see generally 7A Am. Jur. 2d Automobiles & Highway Traffic sec. 205, at 380 (1980)). In Illinois, the Illinois Vehicle Code applies only to vehicles on highways except for articles not applicable to this case (111. Rev. Stat. 1981, ch. 951/2, par. 11 — 201). Since the parties agree that the site of the collision was on private property, the only duty required of defendant in operating the Dodge Colt was a common law duty to exercise such care to avoid danger as an ordinarily careful and prudent person would exercise in the same or similar circumstances. (See Chicago Union Tractor Co. v. Chugren (1904), 209 Ill. 429, 430-31; Martin v. Hertz Corp. (1982), 104 Ill. App. 3d 592, 594.) Notwithstanding that the issue of defendant’s negligence is ordinarily a question of fact, it may be decided as a matter of law where all reasonable men of fair understanding would agree in their deductions from the evidence that defendant was guilty of negligence in the operation of his vehicle at the time and place in question. Grass v. Hill (1981), 94 Ill. App. 3d 709, 714.

We cannot agree with plaintiff’s initial argument that defendant was guilty of negligence as a matter of law by driving a four-wheel vehicle on the dirt track primarily used by motorcyclists. There was testimony that other four-wheel vehicles had previously been on the track along with dirt bikes. Nor can we conclude that the defendant was negligent as a matter of law in reversing his direction to return to the infield when he believed he could not continue clockwise along the rutted trail. The fact that a party has not chosen the safest course of conduct (Allen v. Dhuse (1982), 104 Ill. App. 3d 806, 809), or that the course of conduct chosen entails certain hazards, is not proof of negligence as a matter of law unless the less-safe course of action is unreasonable. (Connolly v. Melroy (1978), 63 Ill. App. 3d 850, 853-54.) Applying these rules, it was for the jury to ascertain whether it was unreasonable for defendant to turn around rather than to drive off the track, in view of his un controverted testimony that his exit from the trail was blocked by automobile tires along the roadside and his testimony that the vehicle was in danger of stalling if he left it unattended and moved the tires. If reasonable minds may differ as to the inferences and conclusions to be drawn from the facts it is improper to direct a verdict or to enter judgment n.o.v. (Martin v. Hertz Corp. (1982), 104 Ill. App. 3d 592, 597.) We conclude that the trial court did not err in refusing to enter judgment against the defendant as a matter of law.

We conclude, however, that the verdict was against the manifest weight of the evidence and that the trial court erred in refusing to grant plaintiff’s motion for a new trial. The evidentiary standard for granting a new trial is less conclusive than that for directing a verdict or entering judgment n.o.v. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310.) On a motion for a new trial a court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310.

There was uncontroverted evidence that defendant had reason to know that plaintiff would be approaching from the opposite direction if defendant turned his vehicle around. From the record there is also a strong inference that defendant could expect that plaintiff would have no way of knowing that a vehicle would be coming from the opposite direction. Defendant’s own testimony was that a vehicle would follow in the direction set by others on the track to avoid a head-on collision. Defendant’s further testimony that he was moving “slowly” does not adequately explain his failure to warn plaintiff that he was blocking two-thirds of a curve at a point where the view of his presence was completely obstructed. The fact that after he turned his vehicle around defendant continued substantially past the point at which he was able to make entry from the infield onto the track substantially weakens his argument that he was not negligent in any degree in his conduct.

Fishel v. Givens (1977), 47 Ill. App. 3d 512, cited by plaintiff, is of some aid in reaching the conclusion that a new trial is required, although the facts are not identical. In Fishel a party was found negligent as a matter of law when he rounded a blind curve on his minibike in the opposing lane of a private drive and collided with a motor vehicle even in the absence of evidence that his vehicle was out of control. The court noted that the driver of the mini-bike “should have been aware that his actions created a danger, since someone else had the right-of-way. In the instant case, knowledge of the risks and the possible existence of another vehicle with superior rights to use that space, appears to be clear and undisputed evidence of contributory negligence.” 47 Ill. App. 3d 512, 520.

Defendant’s argument that plaintiff was guilty of contributory negligence in rounding the curve at an excessive speed, apparently believing from his own admission in evidence that he thought a cloud of dust ahead of him was another cycle which he wished to race, is of no aid to defendant in the circumstances. Plaintiff’s negligence, even assuming as defendant argues that there would have been room for plaintiff to have gone around the vehicle if he were driving carefully, is not a bar to recovery even if it is greater than that of the defendant where, as here, the jury was properly instructed on the “pure” form of comparative negligence. Alvis v. Ribar (1981), 85 Ill. 2d 1, 27-28.

Since the questions may occur on retrial we will comment briefly on the plaintiff’s claim that the trial court erred in refusing to give three of his tendered instructions, respectively, Illinois Pattern Jury Instruction, Civil, Nos. 12.04, 12.05 (2d ed. 1971) (hereinafter cited as IPI Civil) on the negligence of third persons who are not parties, and the longer version rather than the shorter version of 15.01 defining “proximate cause.” (IPI Civil No. 15.01.) There is no evidence in the present record sufficient to raise an issue as to the possible negligence of defendant’s brother in either the maintenance of the car or in not warning the defendant of the danger. Nor is there any basis for the claim that the owner of the property on which the dirt track was located owed a duty of ordinary care to keep the private premises safe for use by any person using the property as a trespasser or as a licensee for recreational purposes. See HI. Rev. Stat. 1981, ch. 70, pars. 33, 36; Pashinian v. Haritonoff (1980), 81 Ill. 2d 377, 379-81.

Similarly it was not error to refuse the additional language contained in IPI Civil No. 15.01 (“It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury”). We conclude that the instructions given by the trial court properly presented the case and that there was no error in refusing the additional instructions tendered by the plaintiff.

The judgment of the circuit court of Du Page County is therefore reversed and the cause is remanded to the trial court with directions to grant plaintiff’s motion for a new trial consistent with this opinion.

Reversed and remanded.

LINDBERG and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HOPF

license: Public Domain

text:
      In re ESTATE OF SAMUEL J. HUGHLETT, Deceased.—(Michael H. McCoy, Adm’r de bonis non with Will annexed of the Estate of Samuel J. Hughlett, Petitioner-Appellee, v. Dorothy Jane Mattison et al., Respondents-Appellants.)
    Second District
    No. 82—393
    Opinion filed March 8, 1983.

      Peter D. McClanathan and Robert J. Schmelzle, both of Schmelzle, Kroeger, Eckert, Burt & McClanathan, of Freeport, for appellants.
    Nack, Richardson & Kelly, of Galena, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Samuel J. Hughlett died on April 4, 1945, leaving a will that was executed on May 23, 1932. Samuel was survived by his wife, Dorothy W. Hughlett.

Under Samuel’s will, Dorothy was to receive all the income from his estate during her life, with the right to use of the principal if necessary. Upon Dorothy’s death, all remaining property was to pass to Samuel’s surviving children. The will further provided that if no children survived Samuel, half of the property remaining after Dorothy’s death was to pass to her “right heirs *** then living” and the other half was to pass to Samuel’s “right heirs then living.” Samuel left no children surviving.

After Dorothy’s death on December 27, 1980, petitioners Michael H. McCoy and Mark W. McCoy, were appointed administrators de bonis non with the will annexed of Samuel’s estate. Petitioners were nephews of Dorothy. However petitioners sought construction of the will and a determination of the identity of Samuel’s “right heirs.”

Samuel was the son of Thomas and Emma Hughlett. Thomas and Emma had four children other than Samuel, i.e., Frank, Anna, Ethel and Alice. Frank predeceased Samuel. Emma, Ethel and Alice each died after Samuel but before Dorothy. Frank, Anna and Ethel left no children surviving. Alice left no natural children but was survived by an adopted daughter, Nancy B. Tyler. Nancy had been adopted in 1919. The testator and Nancy both lived in Galena.

The defendants contested Nancy’s heirship, alleging that they were Samuel’s “right heirs,” as they are the sole surviving descendants of Samuel’s grandparents. It is not necessary that we trace this genealogy. The trial court construed the term “heirs” in Samuel’s will as referring to “family,” of which Nancy was a part, concluded that Nancy was Samuel’s sole heir and directed distribution of the contested portion of the estate to Nancy. The respondents appeal that determination.

In the interim between 1932, the date of the execution of the will and December 27, 1980, when the life tenant died, certain changes occurred in the law relating to inheritance rights of adopted persons. Though the parties seek to establish rights pursuant to will, reference to inheritance statutes would be appropriate, though not controlling, in construing the term “heirs” in a will. Stites v. Gray (1954), 4 Ill. 2d 510, 123 N.E.2d 483; Dillman v. Dillman (1951), 409 Ill. 494, 100 N.E.2d 567.

At the time of the execution of the will the law provided that for purposes of inheritance an adopted child was considered to be the child of the adoptive parents, except that the adopted child could not take property from the lineal or collateral kindred of the adoptive parents by rights of representation or property expressly limited to the body of the adoptive parent. (111. Rev. Stat. 1931, ch. 4, par. 5.) The law in effect at the death of Samuel was substantially the same. (111. Rev. Stat. 1945, ch. 3, par. 165.) The law in force at the time of the life tenant’s death provided that an adopted child was to be considered a descendant of the adoptive parents for purposes of inheritance from the adoptive parents and from their lineal or collateral kindred. 111. Rev. Stat. 1979, ch. lltWa, par. 2 — 4(a).

Primarily the issue is whether in construing the term “heirs,” the applicable law is that which existed when Dorothy, the life tenant, died or that which was in effect when the will was executed.

A fundamental rule of will construction is that the intention of the testator will govern the distribution of the estate, and this intention is to be given effect unless to do so would violate some settled rule of law or public policy. (Stites v. Gray (1954), 4 Ill. 2d 510, 123 N.E.2d 483.) Insofar as possible a testator’s intent is to be determined from the terms of the instrument itself, and where these terms are clear a court may not consider surrounding circumstances to vary the intention expressed. Ford v. Newman (1979), 77 Ill. 2d 335, 396 N.E.2d 539; Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 163 N.E.2d 523; LeSourd v. Leinweber (1952), 412 Ill. 100, 105 N.E.2d 722; Wielert v. Larson (1980), 84 Ill. App. 3d 151, 404 N.E.2d 1111.

The will in question on its face appears clear and certain in its provision of the remainder interest to Samuel’s “right heirs” upon Dorothy’s death. The issue remains as to whether the adopted child Nancy would be an “heir” contemplated in the provision of this will.

A testator is presumed to have known the law in force when the will was drafted and to have made the will in conformity with that law. (Belfield v. Findlay (1945), 389 Ill. 526, 60 N.E.2d 403; Shortridge v. Sherman (1980), 84 Ill. App. 3d 981, 406 N.E.2d 565, cert. denied sub nom. Shartel v. Blasingham (1981), 450 U.S. 921, 67 L. Ed. 2d 349, 101 S. Ct. 1371.) The state of the law at the time the will was drawn is one of the circumstances that can be considered in determining his intent at that time. Belfield v. Findlay (1945), 389 Ill. 526, 60 N.E.2d 403.

At the time the will was drawn the status of the law was such that an adopted child could not inherit from the lineal or collateral kindred of its adoptive parents. (111. Rev. Stat. 1931, ch. 4, par. 5.) Therefore in a will executed during this period of time any bequest to “children,” “issue” or “descendants” of someone other than the testator was presumed to exclude an adopted child unless the language of the will or the circumstances which surrounded the testator clearly indicated that there was an intent to include the adopted child. Ford v. Newman (1979), 77 Ill. 2d 335, 396 N.E.2d 539; Stewart v. Lafferty (1957), 12 Ill. 2d 224, 145 N.E.2d 640.

The word “heirs” is a technical term with a fixed legal meaning and refers to those persons who would be appointed by law to inherit an estate in the case of intestacy, and when used in a will will be given this legal effect unless the testator uses inconsistent words showing a clear contrary intent, or to do so would defeat the obvious general intention of the testator. (Stites v. Gray (1954), 4 Ill. 2d 510, 123 N.E.2d 483; Harris Trust & Savings Bank v. Jackson (1952), 412 Ill. 261, 106 N.E.2d 188; Le Sourd v. Leinweber (1952), 412 Ill. 100, 105 N.E.2d 722.) Therefore under the prior law the term “heirs” when used in a technical sense did not include adopted persons unless the testator was the adopted parent or the testator showed a clear intent otherwise. (See 111. Rev. Stat. 1931, ch. 4, par.5; Wallace v. No-land (1910), 246 Ill. 535, 92 N.E.956.) “Right heirs” is synonymous with “heirs.”

If we apply the law in existence when the will was executed Nancy B. Tyler would not be included in the class of the testator’s “right heirs” in the absence of a contrary intent apparent from the will. Nothing in the will so indicates. (Ford v. Newman (1979), 77 Ill. 2d 335, 396 N.E.2d 539; Wielert v. Larson (1980), 84 Ill. App. 3d 151, 404 N.E.2d 1111.) To us it appears that there was no ambiguity in the will’s language. The lower court admitted parol evidence to show the family relationship of the testator to Nancy B. Tyler. While the court may consider the circumstances surrounding the testator at the time of the execution of the will if the language of the will is ambiguous (O’Connell v. Gaffney (1962), 23 Ill. 2d 611, 179 N.E.2d 647), where there is no ambiguity, parol evidence is inadmissible to construe the will. (Bullis v. DuPage Trust Co. (1979), 72 Ill. App. 3d 927, 391 N.E.2d 227.) In addition even if the evidence were admissible it was insufficient to show an intent that the testator considered her as an “heir.” The fact that a person had a good relationship with the testator does not necessarily indicate an intent to include the adopted person absent an expression in the will of such an intention or a clear intent to do so. Continental Illinois National Bank & Trust Co. v. Clancy (1959), 18 Ill. 2d 124, 163 N.E.2d 523; Hoog v. Litchfield Bank & Trust Co. (1953), 349 Ill. App. 444, 111 N.E.2d 182.

In order for Nancy B. Tyler to take under this will, it would be necessary for us to construe the term “heir” in accordance with the law which was applicable when the life tenant Dorothy Hughlett died in 1980. By the provisions of section 2 — 4(a) of the Probate Act of 1975 (111. Rev. Stat. 1979, ch. 110Vz, par. 2 — 4(a)), an adopted child is declared to be the descendant of the adoptive parents for purposes of inheritance from the parents’ lineal and collateral kindred. In accordance with section 2 — 4(e) of the Probate Act of 1975 (111. Rev. Stat. 1979, ch. IIOV2, par. 2 — 4(e)), this declaration was for the purpose of determining property rights of a person under an instrument executed after September 1, 1955, and declared that an adoptive child is a natural child unless the contrary intention appears by the terms of the instrument. However, it further provided that that subsection did not apply in determining the taker of property under an instrument executed prior to September 1, 1955 (111. Rev. Stat. 1979, ch. IIOV2, par. 2 — 4(e)). It would appear that this statutory provision would foreclose the argument that the current statutory presumption should apply in the construction of the testator’s will since the will was executed in 1932.

However, petitioners contend that, as long as the identity of Samuel’s “right heirs” can only be determined upon the death of Dorothy in 1980, the law in effect at that time controls. We disagree.

A devise to a testator’s “heirs” of a future interest will be considered to be a devise to those who would be classified as “heirs” as of the time of the testator’s death, unless the testator’s will or circumstances clearly manifest an intent that the class would be determined as though the testator died subsequently. This would be true even though distribution was contingent upon the termination of an intervening life tenancy. Stewart v. Lafferty (1957), 12 Ill. 2d 224, 145 N.E.2d 640; Bergendahl v. Stiers (1956), 8 Ill. 2d 257, 133 N.E.2d 280; Le Sourd v. Leinweber (1952), 412 Ill. 100, 105 N.E.2d 722.

Here, distribution to the class “right heirs” is dependent upon some contingent event, i.e., the death of the testator’s wife Dorothy. Where the distribution is dependent upon the happening of an event then the identity of those contingent remaindermen which make up the class is determined as of the date of the occurrence of the event. (O’Connell v. Gaffney (1962), 23 Ill. 2d 611, 179 N.E.2d 647.) Here the gift to Samuel’s “right heirs” was also contingent upon the death of the testator without children surviving. This contingency was satisfied upon his death. There remains for us the question which law determines who qualifies as a member of the class “right heirs,” that in effect at the execution of the will or that in effect at the date of distribution.

The law in effect at the time the will was executed governs in determining the intention of the testator. The law in effect at the time when rights accrue controls the operative effect of the will and the rights of the parties thereunder. Lydick v. Tate (1942), 380 Ill. 616, 44 N.E.2d 583; Brown v. Leadley (1980), 81 Ill. App. 3d 504, 401 N.E.2d 599.

In the absence of a showing that the testator intended that subsequent law should govern, then it must be determined that there was no intent of the testator that Nancy B. Tyler be a “right heir.” (Neissl v. Hartman (1963), 44 Ill. App. 2d 412, 196 N.E.2d 528; Orme v. Northern Trust Co. (1961), 29 Ill. App. 2d 75, 172 N.E.2d 413, aff’d as modified (1962), 25 Ill. 2d 151, 183 N.E.2d 505, cert. denied sub nom. Von Hardenberg v. Kennedy (1962), 371 U.S. 935, 9 L. Ed. 2d 271, 83 S. Ct. 308.) There is nothing in the will to indicate such an intention and, as we have stated heretofore, the will on its face was not ambiguous. If the testator by the use of the term “right heir” was in effect saying “now let the law take its course,” we still have the status of the law as it is presently provided for; that being that section 2 — 4(e) of the Probate Act of 1975 (111. Rev. Stat. 1979, ch. llO^, par. 2 — 4(e)) provides that the presumption in favor of adopted children inheriting from their adoptive parents’ lineal and collateral kindred does not apply in construing an instrument executed before September 1, 1955.

The fact that Nancy B. Tyler was adopted in 1919 before the will was executed in and of itself would be insufficient to establish a contrary general intent. Cf. Munie v. Gruenewald (1919), 289 Ill. 468, 124 N.E.2d 605 (long-time association with adopted grandchild and clearly expressed conduct toward the child); Stewart v. Lafferty (1957), 12 Ill. 2d 224, 228, 145 N.E.2d 640.

The decisions in In re Estate of Evans (1975), 31 Ill. App. 3d 753, 334 N.E.2d 850, and in Harris Trust & Savings Bank v. Jackson (1952), 412 Ill. 2d 261, 106 N.E.2d 188, would appear to be contra. In both of these cases a widow was determined to be a lawful heir in accordance with subsequent law of intestacy in effect at the date of distribution. We deem it appropriate to state that the scope of In re Estate of Evans and Harris Trust & Savings Bank v. Jackson is limited to their particular factual situations and statutory interpretations. It has been noted that because no two wills are exactly alike, precedence in other will cases is not of compelling importance. (Barnhart v. Barnhart (1953), 415 Ill. 303, 313, 114 N.E.2d 378.) Further, we feel that there is no question as to the legislative intent that section 2 — 4(a) of the Probate Act of 1975 (HI. Rev. Stat. 1979, ch. lltP/a, par. 2 — 4(a)) be applied prospectively and not retroactively. (Orme v. Northern Trust Co. (1961), 29 Ill. App. 2d 75, 172 N.E.2d 413, aff'd as modified (1962), 25 Ill. 2d 151, 183 N.E.2d 505, cert. denied sub nom. Von Hardenberg v. Kennedy (1962), 371 U.S. 935, 9 L. Ed. 2d 271, 83 S. Ct. 308.) It is our ruling that the qualifications of the membership of the class “right heirs” must be determined in accordance with the law in effect at the time of the execution of the will. The law in effect at that time did not contemplate that Nancy B. Tyler would be a member of that class.

The judgment of the circuit court of Jo Daviess County is reversed and the cause is remanded with directions to enter a judgment in accordance with this opinion.

Reversed and remanded with directions.

UNVERZAGT and REINHARD, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFF SMITH, Defendant-Appellant.
    Second District
    No. 81—1026
    Opinion filed March 8, 1983.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

On December 8, 1981, the defendant, Jeff Smith, was arrested, convicted and sentenced in Winnebago County to six months’ imprisonment and a $25 fine for driving while license revoked and speeding. (111. Rev. Stat. 1981, ch. 95x/2, pars. 6 — 303, 11 — 601(b).) The former offense is a Class A misdemeanor, the latter is punishable by a fine.

The defendant was arrested at 1:45 a.m. on December 8 and taken to the Winnebago County Public Safety Building. He appeared before the circuit court later that morning at 10:30 or 11 a.m. At that time he entered a plea of guilty to charges and was sentenced as we have indicated. Later, On December 16, 1981, a motion to withdraw the defendant’s guilty plea pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) was filed on his behalf by counsel. That motion was heard and denied. Counsel for the defendant then filed a motion for reduction of sentence. After a hearing, the defendant’s sentence was modified by the trial court to six months’ periodic imprisonment. The defendant appealed and raises three issues: (1) whether the defendant’s motion to withdraw his guilty plea was improperly denied; (2) whether defendant’s sentence was improperly imposed, and (3) whether a corrected mittimus should be issued.

Defendant asserts the trial court’s acceptance of his guilty plea nine hours after his arrest constituted an egregious violation of his due process rights. Specifically, he asserts the court failed to comply with either the spirit or the letter of Supreme Court Rules 401 and 402 (87 Ill. 2d Rules 401, 402).

He contends there was an ineffective waiver of counsel, and that he was not properly admonished as to the nature of the charges, the minimum possible sentences, or his right to plead not guilty. Further, he asserts his plea was improperly accepted because there was no sufficient factual basis for the plea, and the court made no effort to determine that the plea was voluntarily and understandingly tendered as required by Supreme Court Rule 402(b) (87 Ill. 2d R. 402(b)).

Finally, defendant points to the facts surrounding the proceedings at which his plea was entered merely nine hours after he was arrested. He notes it was his first appearance before the judge. Considering certain comments he made about leaving after the hearing, he asserts it was clear that he did not understand the import of the proceedings which had just occurred.

The State asserts the defendant did validly waive counsel, and that the trial court strictly. admonished him pursuant to Supreme Court Rule 401 (87 Ill. 2d R. 401). Alternatively, the State argues that in light of the defendant’s “legal sophistication” a failure by the court to properly admonish him may be considered harmless. (People v. Jackson (1978), 59 Ill. App. 3d 1004.) Inter alia, the record indicates the defendant served seven days in jail after pleading guilty to driving while intoxicated in June 1980, and was fined after his guilty plea to reckless driving in May 1980.

The State argues the court is not required to explain each element of the offense when informing the defendant of the nature of the charge (People v. Nunn (1975), 29 Ill. App. 3d 399), nor to explain what acts the defendant did to commit the offense (People v. Harden (1967), 38 Ill. 2d 559). In fact, the State argues, it has been held that the mere naming of the offense was sufficient to admonish the defendant as to the nature of the charges. People v. Krantz (1974), 58 Ill. 2d 187.

The State points out that the defendant’s theory that more than the name of the offense is required when the defendant is not represented by counsel is unsupported by authority. Likewise, the State argues Krantz and People v. Baxter (1974), 23 Ill. App. 3d 471, also defeat the defendant’s argument as to the court’s failure to admonish as to the possible “minimum” sentences of probation, conditional discharge, or periodic imprisonment. Also, the failure to inform the defendant of the right to plead not guilty or to persist in a plea is not fatal to the guilty plea. People v. Lumley (1979), 76 Ill. App. 3d 221.

Finally, the State asserts that substantial compliance with Supreme Court Rule 402 is still shown even where the court fails to inquire whether any force or threats had been used against the defendant. People v. Gratton (1974), 19 Ill. App. 3d 503.

We are of the opinion that the defendant’s motion to withdraw his guilty plea was properly denied by the trial court.

At the time the defendant entered his guilty plea the following proceedings took place before the trial court:

“THE CLERK: 81-TR-53870 and 71, Jeff Smith.
THE COURT: Let the record show the Defendant in Court. You are Mr. Smith?
THE DEFENDANT: Yes, sir.
THE COURT: How old are you?
THE DEFENDANT: 19.
THE COURT: You are charged with drivers license revoked and speeding 68 in a 55. The first offense is punishable by a fine up to One Thousand Dollars or imprisonment for up to one year in jail or both. The second offense is punishable by a fine of Twenty-Five Dollars and costs. As to both charges, however, you are presumed innocent. You have a right to a trial before a judge or jury. You have a right to be represented by an attorney. If you are indigent and cannot afford an attorney, you maybe entitled to have one free of charge; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: What do you wish to do today?
THE DEFENDANT: Huh?
THE COURT: What do you wish to do today about these cases?
THE DEFENDANT: I will just plead guilty.
THE COURT: You understand when you plead guilty you give up your right to trial before a judge or jury?
THE DEFENDANT: Yes.
THE COURT: And your right to meet the witnesses in court and make the State prove the charges beyond a reasonable doubt; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand you are giving up your right to an attorney whether you can afford one or not?
THE DEFENDANT: Yes, sir.
THE COURT: The Complaints here alleged that at 1:45 in the morning on December 8th you were driving a Ford on Route 2 in Winnebago County; is that true?
THE DEFENDANT: Yes.
THE COURT: And what was the speed limit along that stretch of highway?
THE DEFENDANT: It is supposed to be 55.
THE COURT: This is a copy of a Waiver of jury and plea of guilty form. Sign that if you will. What is the best estimate of the top speed you were travelling?
THE DEFENDANT: I was doing about 55.
THE COURT: Why are you pleading guilty to speeding?
THE DEFENDANT: Because my speedometer was off.
THE COURT: There is a basis to believe you were over the speed limit for that reason?
THE DEFENDANT: Yes.
THE COURT: Did you have a valid license?
THE DEFENDANT: I didn’t.
THE COURT: What happened to them?
THE DEFENDANT: They were revoked about a year ago.
THE COURT: What was it revoked for?
THE DEFENDANT: Drunk driving.
THE COURT: I will accept your waivers of counsel, waiver of jury trial and pleas of guilty. You are how old?
THE DEFENDANT: Nineteen.
THE COURT: Are you employed?
THE DEFENDANT: No, sir,
THE COURT: When was the last time you were employed?
THE DEFENDANT: I got laid off up in Reedburg, Wisconsin just recently.
THE COURT: How long were you working?
THE DEFENDANT: I worked there for a year.
THE COURT: What were you doing?
THE DEFENDANT: I worked in a foundry as a utility man.
THE COURT: Do you have any checking or savings?
THE DEFENDANT: No.
THE COURT: Own any property?
THE DEFENDANT: I own a truck and that’s about all.
THE COURT: What offenses have you been previously convicted of in your whole life?
THE DEFENDANT: Just mostly drunk driving; two of them.
THE COURT: How many times?
THE DEFENDANT: Two.
THE COURT: How many times have you been convicted of driving while license revoked?
THE DEFENDANT: None.
THE COURT: What about any other license charges?
THE DEFENDANT: No.
THE COURT: The State’s Attorney, Mr. Gemignani, is present. Mr. Gemignani, do you have anything on this?
MR. GEMIGNANI [Assistant State’s Attorney]: Yes, sir. I show in October of ’69 a drinking as a minor.
THE COURT: ’79?
MR. GEMIGNANI: I’m sorry, ’79. January of ’80 a criminal damage to property, fine and costs. May of ’80 a minor drinking, DWI, drag racing plea of guilty to reckless driving, fine and costs One Hundred Dollars and the rest of the charges dismissed. June 2nd, 1980 DWI minor drinking and improper lane usage, no drivers license on person, plea of guilty to DWI, costs and seven days and the rest of the charges were dismissed.
THE COURT: Any recommendations?
MR. GEMIGNANI: Six months.
-THE COURT: Enter a Judgment of Conviction on the charge of drivers license revoked and sentence you to a term of six months imprisonment in the Winnebago County Jail and the court costs in that case for speeding I will enter a Judgment of Conviction and sentence you to Twenty-Five Dollars plus costs. The Defendant is remanded to the County Jail under the mittimus that will issue.”

We believe that this record shows the defendant was correctly admonished regarding the nature of the charges and the possible sentences which could be imposed, and the trial court did, in fact, comply with Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)). We also believe that the defendant’s decision to waive counsel was an informed one and that he had an understanding of the consequences of pro se representation.

The defendant argues that he was not properly admonished as to the nature of the charges because the trial judge merely named the two charges. When informing the defendant of the nature of the charge, the court is not required to explain each element of the offense. (People v. Nunn (1975), 29 Ill. App. 3d 399.) Furthermore, the trial judge has no obligation to state to the defendant all of the acts which constitute the offense or to explain what acts the defendant did to commit said offense. (People v. Harden (1967), 38 Ill. 2d 559.) In People v. Krantz (1974), 58 Ill. 2d 187, the supreme court held that the mere naming of the offense was sufficient to admonish one of the nature of the charge.

The defendant next argues that he was inadequately admonished regarding possible sentences because the trial judge did not inform him that probation, conditional discharge or periodic imprisonment were available. The supreme court has specifically rejected this identical argument. See People v. Krantz (1974), 58 Ill. 2d 187.

The defendant argues that he was not admonished of his right to plead not guilty and persist in that plea. We have addressed that issue on two prior occasions and have clearly held that the failure of the trial court to inform the defendant of his right to plead not guilty or to persist in that plea was not fatal to the guilty pleas. People v. Lumley (1979), 76 Ill. App. 3d 221; People v. Pritchett (1974), 23 Ill. App. 3d 1084.

The defendant argues that there was an insufficient factual basis for the plea. A review of the colloquy between the defendant and the court reveals a factual basis for the guilty plea is more than adequate. Such a factual basis consists either of a defendant’s express admission that he committed the offense alleged or a recital to the court of evidence which supports the allegations of the charge. People v. Lundeen (1975), 30 Ill. App. 3d 21.

The defendant next argues that there might have been a viable defense to the charges. In People v. Burgess (1975), 34 Ill. App. 3d 966, we held that the supreme court rule which imposes a duty upon the trial court to determine whether a valid factual basis for the guilty plea exists does not require the trial court to ferret out possible defenses for the defendant. The trial court may accept a guilty plea even when the defendant maintains complete innocence, so long as the plea is voluntary. The defendant argues that the fact that he was not asked whether the plea was the result of threats or force in combination with the fact that the plea was entered nine hours after his arrest demonstrates that his plea was involuntary. However, we have previously stated that a trial judge may be in substantial compliance with Supreme Court Rule 402, despite his failure to inquire about whether any force or threats had been used against the defendant. (People v. Gratton (1974), 19 Ill. App. 3d 503.) We therefore determine that there was no error in the trial court denying the defendant’s motion to vacate his plea.

The defendant next contends that the imposition of a six-month term of periodic imprisonment for the traffic violation of driving while license revoked, given the existence of several mitigating factors, especially the presence of substantial grounds tending to excuse or justify defendant’s conduct, constituted an abuse of discretion. We believe the record fails to show the trial court abused its discretion in imposing the modified sentence of six months’ periodic imprisonment. (People v. Perruquet (1977), 68 Ill. 2d 149.) There is no requirement that the court state the reasons for a misdemeanor sentence on the record (cf. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4— 1(c) (the court shall specify the factors which led it to impose a particular felony sentence (but see People v. Davis (1982), 93 Ill. 2d 155))), and the court is presumed to have considered the mitigating evidence before it unless the record indicates otherwise. (People v. Fugitt (1980), 87 Ill. App. 3d 1044.) In fact, the record shows the court was influenced by the defendant’s mitigation evidence as shown by the court’s modification of the term initially imposed to one which would allow the defendant’s release for employment purposes. We, therefore, reject the defendant’s second ground for reversal.

The third issue raised by the defendant is that the cause should be remanded with directions that a corrected mittimus to the Winnebago County Jail should be issued. The record reflects that on December 8, 1981, the court below sentenced the defendant to a six-month period of imprisonment in the Winnebago County Jail. The mittimus to the county jail reflecting that sentence was thereupon filed with the clerk of the circuit court.

On December 22, the court below allowed the defendant’s motion for a reduction of sentence, in part, and reduced the sentence to a six-month term of periodic imprisonment in the county jail, with the sheriff authorized under local rules and regulations to release the defendant pursuant to the jail’s work release program. However, as the defendant points out no mittimus to the county jail was ever filed in the records of this cause to reflect the modified sentence. Consequently, since we are affirming the judgment and sentence below, this cause must be remanded with directions that a corrected mittimus be issued to reflect the actual sentence in this case. (91 Ill. 2d R. 329; 87 Ill. 2d R. 612(g); People v. Griffin (1977), 56 Ill. App. 3d 255.) Since the defendant has prevailed on one of the issues of this appeal, the State’s request for costs is denied.

Therefore, the judgment of conviction and sentence to a six-month term of periodic imprisonment in the county jail and a fine of $25 is affirmed, but the cause is remanded to the circuit court of Winnebago County with directions that a corrected mittimus be issued to reflect the actual sentence in this cause.

Judgment affirmed; cause remanded with directions.

LINDBERG and VAN DEUSEN, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLARENCE PALMORE, Defendant-Appellant.
    Second District
    No. 82—530
    Opinion filed March 8, 1983.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

In an information filed on May 12, 1982, defendant Clarence Palmore was charged with theft by deception (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(b)(1)) in excess of $150 alleged to have involved the obtaining of $262.51 from the Illinois Department of Public Aid occurring on September 23, 1981. Following a jury trial, the defendant was found guilty on May 24, 1982. At the sentencing hearing held on June 18, 1982, the trial court rejected defendant’s argument that he was entitled to be sentenced under the more lenient misdemeanor penalties for theft because of an amendment to the theft statute effective January 1, 1982, raising the value required for felony penalties to $300. Defendant was then sentenced to six months in the Lake County jail and 30 months’ probation.

The sole issue raised for our review is whether defendant should have been sentenced under the misdemeanor penalties which were applicable after the amendment to the theft statute which increased the value demarcation for felony penalties to $300.

On September 23, 1981, when the theft by deception of $262.51 from the Illinois Department of Public Aid occurred for which defendant was found guilty by the jury, section 16 — 1(e)(3) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)(3)) provided that theft exceeding $150 was a Class 3 felony. However, prior to defendant’s trial and sentence, that section and section 16 — 1(e)(1) were amended, effective January 1, 1982, to provide that theft not exceeding $300 was a Class A misdemeanor, and theft exceeding $300, a Class 3 felony. Defendant contends that when a penalty provision has been amended, a defendant is entitled to elect to be sentenced under either the law in effect at the time of the commission of the offense or, if the punishment is mitigated by a new law in effect at the time of sentencing, under the new law. The State maintains that the legislative change raising the requisite amount which gives rise to a felony theft conviction (from $150 to $300) constitutes a substantive change in the offense itself, not a mere change in sentence, and that prosecution and sentence are properly for the offense in effect at the time of its commission.

Both parties agree that the statute which controls is section 4 of “An Act to revise the law in relation to the construction of the statutes,” which provides as follows:

No new law shall be construed to repeal a former law,. whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.” (111. Rev. Stat. 1981, ch. 1, par. 1103.)

This statute has been interpreted to mean that if any penalty, forfeiture or punishment be mitigated by any provision of a new law, the provision may with the consent of the party affected be applied to any judgment pronounced after the new law takes effect. (People v. Osborn (1983), 111 Ill. App. 3d 1078; People v. Jimerson (1982), 111 Ill. App. 3d 82, 443 N.E.2d 794; People v. Morgan (1981), 93 Ill. App. 3d 12, 416 N.E.2d 740; see People v. Zito (1909), 237 Ill. 434, 439-40, 86 N.E. 1041.) However, there is authority which holds that under the terms of section 4 if an amendment changes the nature of the offense, the former law is not repealed as to offenses arising before the amendment takes effect, and prosecution and sentence under the law in effect at the time of the offense are permitted. People v. Poll (1979), 74 Ill. App. 3d 534, 393 N.E.2d 732, aff’d in part, vacated in part on other grounds (1980), 81 Ill. 2d 286, 408 N.E.2d 212; People v. Gibson (1976), 41 Ill. App. 3d 209, 354 N.E.2d 71.

Several recent appellate court decisions have addressed the question of the change in the theft statute or of a similar change in the criminal damage to property statute (111. Rev. Stat. 1981, ch. 38, par. 21 — 1), also effective January 1, 1982, which raised the amount of value of property damage to $300 in order to make the offense a felony. The most recent case from the Appellate Court, Third District, holds that the change in the criminal damage to property statute has resulted in a lesser penalty rather than in an element of the offense being altered. (People v. Osborn (1983), 111 Ill. App. 3d 1078; but see People v. Jimerson (1982), 111 Ill. App. 3d 82, 443 N.E.2d 794.) Thus, in Osborn the court determined the misdemeanor penalty, under the statute as amended, was applicable where the value of the property damaged was less than $300. However, the Appellate Court, Fourth District, has held, in a different factual context, that the amendment to the criminal damage to property statute which raised the threshold value of property damage from $150 to $300 needed to make the offense a felony, was not to be given retroactive application under section 4 where it would prevent a conviction for armed violence based on the underlying felony offense of criminal damage to property exceeding $150 as the statute provided at the time of the commission of the offense. People v. Primmer (1983), 111 Ill. App. 3d 1046.

In Primmer, the appellate court relied on People v. Bilderback (1956), 9 Ill. 2d 175, 137 N.E.2d 389, in concluding that section 4 did not operate to give retroactive application to the amendment, for to do so would negate the prior law and prevent a conviction for armed violence which must be predicated upon the commission of a felony while armed with a dangerous weapon. We do not believe that the decisions in Primmer and Osborn conflict since retroactive application of the amendment in Primmer would operate to repeal the former law and prevent conviction of the offense charged in direct contradiction of the express terms of the first sentence of section 4. On the other hand, under the facts in Osborn, the amendment was held to affect only the punishment and was interpreted by that court, applying the second sentence in section 4, to be a change in the sentence rather than in the elements of the offense, and, therefore, with the consent of the defendant, the amendment could be applied to a judgment pronounced after the new law had taken effect. The amendment under the facts in Osborn did not have the effect of repealing the former law and preventing prosecution for the crime.

The offense of theft is set forth in the disjunctive in section 16 — 1, subsections (a) through (d). An element of each form of theft delineated therein is control over property. Property is defined in section 15 — 1 to mean “anything of value.” To prove a violation of section 16 — 1(b)(1), the offense charged here, the prosecution must show that an accused knowingly obtained by deception control over the property of the owner with the intent to deprive the owner permanently of the use or benefit of the property. (People v. Gordon (1976), 64 Ill. 2d 166, 170, 355 N.E.2d 3; People v. Mays (1980), 80 Ill. App. 3d 340, 343, 399 N.E.2d 718.) It is only in subsection (e), which is the sentence provision of section 16 — 1, that theft of property not exceeding $300 is prescribed as a Class A misdemeanor, and if exceeding $300, a felony. See Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e).

It has been generally stated that when the place of punishment, and its duration, depend upon the value of the property stolen, that value is a material element of the offense which must be specifically found by the jury and incorporated in its verdict. (People v. Harden (1969), 42 Ill. 2d 301, 306, 247 N.E.2d 404.) Notwithstanding this authority, it also has been held that the allegation of the precise value is not essential to the sufficiency of the indictment if the indictment shows that a thing of value was stolen. (People v. Whitlow (1980), 86 Ill. App. 3d 858, 873, 411 N.E.2d 1354; People v. Brouilette (1968), 92 Ill. App. 2d 168, 236 N.E.2d 12; People v. Kelly (1965), 66 Ill. App. 2d 204, 210, 214 N.E.2d 290.) The particular value of the property relates only to the nature and extent of the penalty which may be imposed. (People v. Brouilette.) Recently, our supreme court has held that where a prior conviction for theft elevates the degree of the offense from a misdemeanor to a felony, it is not necessary that the prior conviction be alleged in the information and proved at trial. (People v. Hayes (1981), 87 Ill. 2d 95, 98, 429 N.E.2d 490.) What was necessary in Hayes in order to invoke the enhanced penalty provision for a subsequent conviction was notice to the accused, an opportunity to refute the allegation of a prior conviction, and proof beyond a reasonable doubt of the prior conviction to the court. 87 Ill. 2d 95, 98, 429 N.E.2d 490.

While the issues raised in these cases relate to the sufficiency of the charge and the sufficiency of the evidence, we believe the cases also illustrate that the value demarcation and the prior theft conviction provision contained in the sentence subsection of the theft statute pertain to the punishment which can be imposed rather than to an essential element of the offense. See also People v. Swinson (1950), 406 Ill. 233, 236-37, 92 N.E.2d 758; People v. Harwell (1947), 398 Ill. 369, 372-73, 75 N.E.2d 889.

We conclude that the amendment raising the value demarcation in order for the theft to be a felony has the effect of mitigating the punishment for theft, and under section 4 of “An Act to revise the law in relation to the construction of the statutes,” the amendment may, by the consent of the defendant, be applied to his sentence which was pronounced after the new law took effect. People v. Osborn (1983), 111 Ill. App. 3d 1078.

In the case before us defendant, who was sentenced to 30 months probation and six months in jail, has requested only that we either vacate the probation sentence imposed and remand for imposition of a term of probation not to exceed one year, or that we reduce the sentence of probation to a term not in excess of one year. Pursuant to Supreme Court Rule 615(b) (87 Ill. 2d R. 615(b)), we reduce the term of probation to one year.

Affirmed as modified.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE NASH

text:
    FAIRWAYS OF COUNTRY LAKES TOWNHOUSE ASSOCIATION et al., Plaintiffs-Appellants, v. SHENANDOAH DEVELOPMENT CORPORATION et al., Defendants-Appellees.
    Second District
    No. 82—602
    Opinion filed April 8, 1983.
    — Rehearing denied May 9, 1983.
    Robert L. Marsh, of Wheaton, for appellants.
    Kenneth L. Popejoy, of Huck & Walsh, of Wheaton, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiffs, Fairways of Country Lakes Townhouse Association and Fairway of Country Lakes Homeowners Association, appeal from a summary judgment entered in favor of defendants, Shenandoah Development Corporation and Parkway Bank and Trust Company, and the denial of a summary judgment sought by plaintiffs. The parties do not dispute the facts giving rise to this litigation, but only their legal effect.

In 1974, developers known as the Richards Group, who are not parties to this action, owned a tract of land in Du Page County which, for clarity, will be discussed as two separate parcels, the Fairway and the Greens. The Richards Group constructed a townhome development on the Fairway, the present owners of which are members of plaintiff associations. After construction, the Richards Group recorded two declarations (hereinafter called Fairway Declarations) which, as amended, provided for the formation of the plaintiff associations for the purpose of maintaining the townhomes on the Fairway as well as maintaining and operating the amenities thereto, including the swimming pool, clubhouse and tennis courts.

As relevant, the two Fairway Declarations contained substantially similar provisions. Their preamble provided, in part:

NOW, THEREFORE, the Developer hereby declares that only the real property described in Exhibit ‘B’, which is attached hereto and made a part of the Declaration (hereinafter referred to as the ‘Premises’) and such additions thereto as may hereafter be made pursuant to paragraph 5.01, is and shall be transferred, held, sold, conveyed and accepted subject to this Declaration of Covenants, Conditions, Restrictions and Easements.
The Developer does hereby further declare that the following rights, easements, covenants, restrictions, conditions, burdens, uses, privileges, charges and liens shall: (1) exist at all times hereafter among all parties having or acquiring any right, title or interest in any portion of the Premises; (2) be binding upon and inure to the benefit of each Owner (as further defined in paragraph 1.05); and (3) run with the land subjected to this Declaration, to be held, sold and conveyed subject thereto.” (Emphasis added.)

Exhibit “B” described the land comprising only the Fairway portions of the tract and did not include the Greens. However, paragraph 5.01 of the Fairway Declarations permitted the addition of other property in the tract providing, in part:

“*** [t]he Developer may, at its sole discretion, from time to time hereafter add additional portions of the Proposed Development Area to the Premises or the Common Area and improve the same respectively with Dwelling Units or Community Facilities. Developer is not obligated in any manner pursuant to this Declaration to annex any properties from the Proposed Development Area, and said decision to annex shall be at its sole discretion.
* * *
Where the Developer elects to annex additional properties from the Proposed Development Area to the Premises or Common Area, said annexation shall be consummated by the recording of a Supplementary Declaration. Said Supplementary Declaration shall contain, but not be limited to, the legal description of the property which is to be annexed to the Premises or Common Area.” (Emphasis added.)

For purposes of the Fairway Declarations, the “Developer” was defined as follows:

“THE RICHARDS GROUP OF ILLINOIS, INC., a Delaware corporation, and its successors and assigns, or CHICAGO TITLE AND TRUST COMPANY, not personally but as Trustee under Trust Agreement dated June 12, 1973, and known as Trust No. 62371.” (Emphasis added.)

After formation of the plaintiff associations and prior to any annexation of additional property to the Fairway Declarations, the Richards Group conveyed title to the remaining portion of the tract, the Greens, to Naper Venture, also a nonparty, which in turn, conveyed title to defendants. The defendants thereupon developed the Greens with townhomes similar to those constructed by the Richards Group on the Fairway. In June 1981, the defendants recorded a declaration (hereinafter called Greens Declaration) which established the Greens of Country Lakes Homeowners Association with stated purposes similar to those of plaintiff associations. The Greens Declaration contained almost identical language as the Fairway Declarations except that it applied only to the Greens portion of the tract and did not purport to reserve to its developer (Shenandoah Development Corp.) any right to annex additional property to the declaration.

Notwithstanding the foregoing, on January 11, 1982, defendants, as developers of the Greens, recorded a “Supplemental Declaration” which purported to annex the Greens property to the Fairway Declarations as provided therein. Plaintiffs objected and commenced this litigation seeking a declaratory judgment that the Supplemental Declaration was void and of no effect. The parties filed cross-motions for summary judgment supported by affidavits and, after argument, the trial court found: (1) that the developer’s right to annex property to the Fairway Declarations ran with the land to defendants; (2) that the defendants were developers within the meaning of the Fairway Declarations; (3) that the Greens Declaration was valid but did not constitute an annexation of the land to the Fairway Declarations; and (4) that the Supplemental Declaration was a valid annexation of the Greens to the Fairway Declarations and therefore nullified the Greens Declaration to the extent that the prior document created a separate homeowners association. On this basis, the court denied plaintiffs’ motion and entered summary judgment for the defendants.

On appeal, plaintiffs contend: (1) that the right to annex additional property to the Fairway Declarations did not run with the land but rather was an unexercised personal right of the original developer, the Richards Group; (2) that the defendants are not successors or assigns of the Richards Group for the purpose of exercising the annexation rights contained in the Fairway Declarations; (3) that the filing of the Greens Declaration bars defendants from filing the Supplemental Declaration through the doctrines of laches and estoppel; and (4) the trial court improperly considered portions of certain affidavits offered in support of defendants’ motion for summary judgment.

Initially, we consider whether the provisions of the Fairway Declarations which allowed the initial developer to annex additional land are covenants which run with the land to its successors in title or were personal rights of the original developer. Generally, covenants will be strictly construed so that they will not extend beyond that which is expressly stipulated and all doubts must be resolved in favor of the free use of property and against restrictions. (Gatton v. Page (1976), 44 Ill. App. 3d 559, 562, 358 N.E.2d 685, 687; Kessler v. Palmeri (1972), 3 Ill. App. 3d 901, 904-05, 278 N.E.2d 813, 816.) The paramount rule for construction of a covenant is to give effect to the actual intent of the parties as of the time the covenant was made as understood from the whole document construed under the circumstances surrounding its execution. (Kessler v. Palmeri (1972), 3 Ill. App. 3d 901, 904-05, 278 N.E.2d 813, 816; see also Southern Advertising Co. v. Sherman (1957), 43 Tenn. App. 323, 308 S.W.2d 491; Carranor Woods Property Owners’ Association v. Driscoll (1957), 106 Ohio App. 95, 153 N.E.2d 681.) In the present case, however we are not dealing with a covenant per se, but rather, with a reservation of a right to bring additional property within the terms of the covenants contained in the Fairway Declarations.

This court has considered analogous provisions which provided for the Unilateral modification or revocation of restrictive covenants already imposed upon land by a developer. In those situations, we held that such reserved powers to modify or revoke restrictive covenants contained in a deed are personal covenants which can be exercised only by the one who imposed the restrictions, particularly where the power can be exercised without the consent of the property owner. (Orchard Brook Home Association, Inc. v. Joseph Keim Land Development Corp. (1978), 66 Ill. App. 3d 227, 231, 382 N.E.2d 818, 821; Fox Lake Hills Property Owners Association v. Fox Lake Hills, Inc. (1970), 120 Ill. App. 2d 139, 145, 256 N.E.2d 496, 499.) In these cases it was determined that once the title to the property passed from the hands of the one holding such a reservation of rights, the power can no longer be exercised by him or any other person notwithstanding that the declaration provided that all covenants were to run with the land. See also Richmond v. Pennscott Builders, Inc. (1964), 43 Misc. 2d 602, 251 N.Y.S.2d 845; Packanack Lake Country Club & Community Association v. Alexander D. Doig Development Co. (1962), 72 N.J. Super. 360, 178 A.2d 243; Annot., 4 A.L.R.3d 570 (1965, 1982 Supp.).

We see no basis for interpreting the provisions of the Fairway Declarations differently and consider that the disputed provisions established a personal right to be exercised only by the original developer. The Fairway Declarations applied only to the Fairway property and thus impliedly excluded the Greens property. Although the original developer reserved the right to bring the Greens property within the terms of the Fairway Declarations, it did not do so, and, at the time the Greens property was transferred to defendants, no restrictions or covenants applied to that property through operation of the Fairway Declarations. Under these circumstances, we cannot say that any rights or obligations under the Fairway Declarations ran with the title to the Greens Property as such an interpretation would extend the terms of the declaration beyond its express scope. (Kessler v. Palmeri (1972), 3 Ill. App. 3d 901, 278 N.E.2d 813.) Accordingly, the trial court erred in finding that the reservation of rights ran with the land.

Defendants alternately contend that they, as “successors and assign” of the Richards Group, are the “developers” as defined in the Fairway Declarations thus capable of exercising the annexation rights provided therein. We do not agree. Generally, the purchase of one corporation’s property by another does not subject the purchasing corporation to the liabilities of the seller nor does it entitle it to exerelse the seller’s rights unrelated to the property. (Johnson v. Marshall & Huschart Machinery Co. (1978), 66 Ill. App. 3d 766, 768, 384 N.E.2d 141, 143, appeal denied (1979), 74 Ill. 2d 586; Buis v. Peabody Coal Co. (1963), 41 Ill. App. 2d 317, 322, 190 N.E.2d 507, 510.) Such rights only accrue where there has been a consolidation or merger of the corporation or the purchasing corporation is merely a continuation of the seller. (Johnson v. Marshall & Huschart Machinery Co. (1978), 66 Ill. App. 3d 766, 768, 384 N.E.2d 141, 143, appeal denied (1979), 74 Ill. 2d 586.) Such is not the case here. The record reflects that the defendants merely purchased title to the Greens property from Naper Venture, who purchased it from the Richards Group. There has been no merger of the corporations nor are defendants the continuation of any prior titleholder. The fact that defendants are willing to voluntarily assume the obligations imposed by the Fairway Declarations does not give them the legal right to exercise rights contained therein. Defendants’ argument, taken to its logical conclusion, would permit any number of persons who may have acquired portions of the Greens property, instead of the one corporation here, to separately choose to exercise the rights of the developer and annex his property on a piecemeal basis. Such an intention cannot be found within the Fairway Declarations, and we may not supply it. (Orchard Brook Home Association, Inc. v. Joseph Keim Land Development Corp. (1978), 66 Ill. App. 3d 227, 231-32, 382 N.E.2d 818, 821.) Accordingly, the finding of the trial court that the defendants were developers within the meaning of the Fairway Declarations was error.

In view of these conclusions plaintiff’s further arguments need not be considered.

For these reasons, the judgment of the circuit court of Du Page County is reversed and the cause remanded with directions that summary judgment in favor of plaintiffs be entered.

Reversed and remanded.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE MILLER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DOUGLAS CHRISTENSEN, Defendant-Appellee.
    Fourth District
    No. 4—82—0248
    Opinion filed April 6, 1983.
    Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of Springfield, for the People.
    Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

The defendant was brought to Illinois from a Federal prison in Texas, where he was serving a 12-year sentence, to stand trial on a 15-count indictment. Because an important witness had disappeared in the meantime, however, the State nol-prossed the indictment and returned the defendant to Federal custody. When the witness was found, the State obtained a new indictment charging the same offenses as before and brought the defendant to Illinois again; both times the State used the Agreement on Detainers (111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a)) to compel the defendant’s presence. Finding that the defendant had been in custody more than 120 days, a violation of section 103 — 5 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 103 — 5), and that he was returned to Federal custody without having been tried on the first indictment, a violation of article IV(e) of the Agreement (111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. IV(e)), the trial court discharged the defendant and dismissed the charges with prejudice. The State appeals, and we reverse and remand.

The defendant was indicted by a Woodford County grand jury July 24, 1980, in cause No. 80-CF-80 on 10 counts of murder, two counts of involuntary manslaughter, two counts of aggravated battery, and one count of concealment of a homicidal death, all stemming from the death of Walter Gardner on December 14, 1979. The prosecutor filed a detainer against the defendant at a Federal prison in Texas where the defendant was serving a sentence on an unrelated Federal charge. The State obtained custody of the defendant under the Agreement on Detainers, which both the United States and Illinois have adopted. The defendant was received in Woodford County October 19, 1980. On December 19, 1980, defendant was granted a continuance and the trial was continued to February 17, 1981, when the State was granted a continuance because an important witness could not be found; the trial was rescheduled for April 6,1981.

The defendant was never tried on the indictment in 80-CF-80. On March 17, 1981, the State nol-prossed the indictment because the witness still could not be found. The prosecutor explained:

“Then I would move at this time to dismiss the case and make it perfectly clear on the record that it would be the People’s intention to renew charges that are the substance of this case. If it is in another file or indictment, so be it, but it would be the People’s intention to renew those charges if the witness *** becomes available.”

The trial judge dismissed the indictment and signed what was designated a “Nolle Pros Order”; he also signed an order remanding the defendant to Federal custody.

The defendant was indicted in the present case, cause No. 81-CF-83, October 29, 1981. Once again the defendant was charged with 10 counts of murder, two counts of involuntary manslaughter, two counts of aggravated battery, and one count of concealment of a homicidal death, all stemming from the death of Walter Gardner December 14, 1979. As before, the State obtained custody of the defendant under the Agreement on Detainers, and he was brought to Illinois April 9, 1982. The trial court heard the defendant’s motion to dismiss on April 16, 1982. Agreeing with the defendant that both the speedy-trial provisions of section 103 — 5 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 103 — 5) and the Agreement on Detainers had been violated, the trial court dismissed the charges.

I

The speedy-trial provision of section 103 — 5(a) applies only to persons “in custody in this State” (111. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)); thus, the time when the defendant was not in Illinois does not count toward the 120-day period allowed by that section. The record shows that in cause No. 80-CF-80 and in cause No. 81-CF-83, taken together, the defendant was in custody in Illinois fewer than 120 days, after deducting the delay chargeable to him by his motion for a continuance in cause No. 80-CF-80. Thus, even if the two indictments are considered a continuing prosecution, which would require that the speedy-trial clock be tolled and then resumed rather than begun anew (People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951), the defendant’s right under section 103 — 5(a) to a speedy trial was not violated.

II

The trial court also found that article IV(e) of the Agreement on Detainers (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. IV(e)) barred prosecuting the defendant in 81-CF-83. That provision says:

“If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of "any further force or effect, and the court shall enter an order dismissing the same with prejudice.”

Article V(e) says:

“At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.” (111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. V(e).)

The trial court believed that the indictment in 80-CF-80 should have been dismissed with prejudice because the defendant was not tried on it before being returned to Federal custody.

We conclude that article IV(e) does not bar prosecuting the defendant. The decision to nol-pros a charge is within the prosecutor’s discretion, and a trial court may not deny the motion in normal circumstances. (People ex rel. Castle v. Daniels (1956), 8 Ill. 2d 43, 132 N.E.2d 507; Sanders.) In this case, the prosecutor was without a witness and did not know when he would be found; the record contains no evidence or sign that the prosecutor made the motion to harass the defendant or to evade any of the applicable speedy-trial provisions.

The nol pros of the indictment meant that the defendant was not then facing any charges in Illinois. Thus, after the defendant was returned to Federal custody, the trial court could not enter the order contemplated by article IV(e) — a dismissal of the indictment with prejudice. No indictment existed, so none could be dismissed. The defendant was then charged in a new indictment, 81-CF-83. Although based on the same offenses as the indictment in 80-CF-80, 81-CF-83 was a new case. Accepting the defendant’s argument that article IV(e) requires dismissal of the charges with prejudice would limit the prosecutor’s discretion in deciding to nol-pros charges; the Agreement on Detainers was not designed with that purpose in mind. The Agreement provides a procedure that Illinois may use to prosecute persons who are in the prisons of States that have adopted it. The Federal government has adopted the Agreement (18 U.S.C. app., at 1395 (1976)) and is defined as a “state” (111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. 11(a)).

Article I of the Agreement on Detainers says in part:

“The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints.” (111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. I.)

The Agreement is also intended to provide “cooperative procedures” for the orderly transfer and trial of prisoner-defendants. 111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. I.

Nol-prossing the indictment in 80-CF-80 and bringing the defendant back to Illinois a second time under a different indictment, 81-CF-83, has not frustrated the purposes expressed in article I of the Agreement. When the defendant was returned to Federal prison in Texas after the nol pros, the charges were no longer outstanding; although the prosecutor explained that he had had difficulty in convincing the warden in the Federal prison that the detainer had been recalled, the detainer was not then “based on untried indictments, informations or complaints” (111. Rev. Stat. 1981, ch. 38, par. 1003— 8 — 9(a), art. I).

Article IV(e) of the Agreement and a corresponding provision in article 111(d) (111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. 111(d)) deter authorities from shuttling prisoner-defendants between the sending State — the original place of imprisonment — and the receiving State — the State where the defendant is to be tried. Once the first indictment was nol-prossed, the State no longer had the authority to require the defendant to remain in Illinois; the record does not show any outstanding charges against the defendant at that time. Furthermore, although the prosecutor expected that the defendant would be indicted again for the same offenses, he did not know when that would happen; besides being unlawful, keeping the defendant in Illinois during that time would have interfered with his “programs of prisoner treatment and rehabilitation” (111. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a), art. I) in the Federal prison in Texas (People v. Dye (1977), 69 Ill. 2d 298, 371 N.E.2d 630; Neville v. Friedman (1977), 67 Ill. 2d 488, 367 N.E.2d 1341).

In Neville, the defendant was brought to Sangamon County, where several indictments against him were pending, from a Federal prison in Terre Haute, Indiana; custody of the defendant was obtained under the Agreement on Detainers. The trial court granted defense counsel’s motion for a continuance and continued the matters for 21k months, when a new trial date would be scheduled. The defendant was then returned to the Federal prison in the meantime; he later moved to dismiss the indictments, relying on article IV(e) of the Agreement on Detainers. The circuit court denied the motion and the supreme court granted the defendant leave to file in that court an original action for a writ of prohibition. Carefully considering the purposes of the Agreement on Detainers, the supreme court denied the petition. The court said:

“It seems entirely clear to us that petitioner’s continued detention in the Sangamon County jail for an additional period of 2% or more months would [have] substantially interfere^] with the Federal prisoner-treatment and rehabilitation programs which were employed at Terre Haute. Such interference is not in the best interests of petitioner, for whose benefit the programs are designed, nor of a society interested in the rehabilitation of its offending members. By contrast, we can discern no useful purpose to be accomplished by holding petitioner in the Sangamon County jail during that period, and he does not argue that any exists.” 67 Ill. 2d 488, 493-94, 367 N.E.2d 1341.

Our decision here similarly carries out rather than frustrates the purposes of the Agreement on Detainers. Having concluded that neither section 103 — 5 of the Code of Criminal Procedure of 1963 (HI. Rev. Stat. 1981, ch. 38, par. 103 — 5) nor the Agreement on Detainers (HI. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9(a)) has been violated, we reverse the decision of the trial court and remand the case for further proceedings.

Reversed and remanded.

WEBBER, P.J., and MILLS, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL J. RATHGEB, Defendant-Appellant.—(Carlos Johnson, Defendant.)
    Fourth District
    No. 4—82—0490
    Opinion filed April 6, 1983.

      S. John Muller, of Charleston, for appellant.
    Nancy Owen, State’s Attorney, of Charleston (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

After a trial by jury in the circuit court of Coles County, defendant was convicted on April 13, 1982, of the offenses of home invasion, burglary, aggravated battery and battery. On July 7, 1982, he was sentenced to concurrent sentences of 10 years, three years, two years, and 364 days, respectively. He appeals, contending the court erred (1) in denying his motion to suppress his confession, (2) in refusing to hear his oral motion, made at trial, to suppress illegally obtained evidence, (3) in failing to remove from the jury a juror who failed, at voir dire, to disclose a part-time job he held, (4) in denying his request for a mistrial, and (5) in permitting the prosecutor to give an improper explanation of the defense of involuntary intoxication during closing argument. He also asserts: (1) The convictions for burglary and aggravated battery could not stand if the home invasion judgment stands; (2) the statutory provision for home invasion is unconstitutional; and (3) the court erred in denying defendant’s motion for a directed verdict at the close of the State’s case.

Evidence was presented at trial of two occurrences in the late evening of September 11, 1981, in Charleston. The first incident occurred when two males entered the residence of an 80-year old woman, Ruby Dow, and began beating her on her face and chest. Mrs. Dow suffered multiple bruises and lacerations, a fractured nose and a fracture of one of her forearm bones as a result of the beating. The intruders requested money and thoroughly ransacked the Dow residence. The second incident occurred at a duplex where Mitchell Powell resided. At approximately 11:45 p.m., a black male burst in the front door of the residence, grabbed a purse which belonged to Powell’s wife and ran away with it. Powell gave chase and caught the culprit in his backyard. The burglar was then joined, by a companion, and the two hit Powell repeatedly for 30 to 40 seconds. They then abruptly stopped the beating and ran off. Powell was unable to provide an accurate description of either of the above individuals, although he told the investigating officer that they were both black males. Several items taken from the Dow residence were discovered behind the other duplex of the building in which Powell resided.

The brunt of the evidence against the defendant was his confession.

The evidence presented at the hearing on defendant’s motion to suppress his confession showed that he and another suspect were brought to the Charleston Police Station at about 12:16 a.m. on September 12, 1981. They were then taken to the booking room where defendant stayed for about 15 minutes. During this time, the other suspect escaped. Defendant was then handcuffed to the vertical bars of a railing in a stairwell. By sliding his locked hands up or down the railing, defendant was able to sit down or, probably, stand up. The staircase was not used much at night, and defendant was fairly isolated from others in the police station. At approximately 1 a.m., defendant was moved to a command room. Because defendant had some abrasions and bruises on his body, medical personnel of an ambulance unit were summoned. They examined defendant and stated an opinion that any injuries he had were superficial. Defendant apparently declined further medical attention.

The evidence at the hearing indicated that after the medical examination, defendant executed a written waiver of Miranda rights. Defendant stated he did not remember signing it, and said he could not have read it because he did not have his glasses with him. He then made an oral statement in which he denied participation in any burglaries or break-ins. The making of the statement took approximately 30 minutes. The conversation ended when the defendant refused to talk further with the interviewing officer. Defendant was then returned to the stairwell and again handcuffed to the railing. Subsequently, defendant was returned to the briefing room and permitted to make a phone call to his roommate. An officer who was present testified that during the telephone call, defendant told the roommate he wondered if he should go ahead and tell everything he knew to the police. After completing the telephone call, defendant told the officer he would like to talk to the officer. A detective was summoned so that the statement defendant was to make could be recorded. At about 2:30 a.m., defendant made a statement confessing his guilt at both residences. The statement was repeated for taping. Prior to making the statement, defendant was not readvised of his Miranda rights, but, according to the officer, defendant had before him the rights form he had previously signed. In the statement, defendant responded in the affirmative to a question as to whether he understood his rights. Defendant testified that he was frightened while chained to the railing and was not certain that he would not have to stay there until he gave a second statement.

The evidence was in sharp dispute as to defendant’s state of sobriety during the course of the evening. An acquaintance of defendant testified that defendant was very much under the influence of alcohol and marijuana that evening. Another acquaintance testified that for the same reason, defendant “was not himself” that day. Defendant testified that he was “bombed.” However, in his taped statement, he said he might be “a little tipsy” but knew exactly what he was doing in confessing. The three law enforcement officers who were with defendant that evening all testified to opinions that defendant was not under the influence of alcohol at the time. Only one officer testified that defendant was under the influence of marijuana, and that officer described the influence as being minimal.

Defendant maintains his confession should have been suppressed, because it was not shown to be voluntary. The State had the burden of proving its voluntariness by a preponderance of the evidence. (People v. Jackson (1968), 41 Ill. 2d 102, 242 N.E.2d 160.) Defendant bases his claim that voluntariness was not proved upon (1) his isolation at the police station after refusing to confess, (2) the pain he suffered at the time because of his injuries, (3) his inexperience with police procedures, and (4) he was under the influence of drugs and alcohol. The latter three contentions can be disposed of summarily. His injuries were shown to be superficial, and there was no evidence he complained of pain. Although he may not have been experienced with police procedures, he was a college student and nothing in his statements indicated confusion. The trial court could properly have believed the officer’s conclusion that defendant had no substantial impairment because of his ingestion of alcohol or marijuana.

Defendant’s contentions concerning his being handcuffed to the railings are of more concern. Handcuffing has been held to be insufficient, of itself, to require suppression of a confession obtained during its existence. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 431 N.E.2d 1154; People v. Caldwell (1967), 79 Ill. App. 2d 273, 224 N.E.2d 634.) In those cases there was no indication that the defendant had refused to talk and then changed his mind as here. Nevertheless, the trial court could properly have determined here that the confession did not result from the handcuffing. The testimony that defendant asked a friend whether he should tell the full story indicated that defendant was making a rational determination as to whether to confess and was not being coerced into doing so.

The trial court’s determination that the confession was voluntary was not contrary to the manifest weight of the evidence.

We also hold that the trial court did not err in refusing to hear defendant’s motion to suppress evidence obtained from defendant after his arrest. The motion was based on a contention that his arrest was without probable cause and illegal. Section 114 — 12 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1981, ch. 38, par. 114 — 12) requires such a motion be made before trial “unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.” The defense maintains that it learned only at trial that the police report that went out after the crimes had been committed stated that both suspects were black. As defendant was white, he maintains that this evidence was highly probative that the arresting officer lacked probable cause to arrest him. However, the testimony at preliminary hearing clearly conveyed to the defense the general circumstances under which the arrest was made, and the police report did not add a great deal to that. The trial court was not in error in ruling the motion to have been untimely.

A juror, during voir dire, stated that his employment was with a firm supplying business forms but, apparently inadvertently, failed to state that he was a part-time bartender at the Moose Club, one day a week. The defense maintains it would not have accepted the juror if it had known of his bartending activities, because the evidence showed that defendant, although under age, had consumed alcoholic beverages at three taverns prior to the offenses. The juror stated that he had no prejudices concerning the use of alcohol. The mere suspicion that inaccurate information given by a juror may cover up a bias is insufficient to require the setting aside of a verdict. (People v. White (1980), 88 Ill. App. 3d 788, 410 N.E.2d 1082.) No error resulted from the foregoing.

A physician testified as to the injuries received by one of the victims and briefly showed the jury a photograph of the victim taken the morning after the crimes which depicted the injuries to her face. Although the photograph was not admitted into evidence, it was not unduly gruesome and tended to show the extent of injuries suffered by the victim. The trial court properly denied a motion for a mistrial based upon the episode.

The prosecutor, during closing argument stated hypothetical examples of what constitutes a degree of voluntary intoxication sufficient to negate the mental state necessary to commit a crime. These hypotheticals were accurate in their depiction of the law and were proper argument. (People v. Schreiber (1982), 104 Ill. App. 3d 618, 432 N.E.2d 1316.) No error resulted.

Neither burglary, aggravated battery, nor home invasion are included offenses of the other either by definition or as charged. Burglary occurs when an unauthorized entry is made with the intent to commit a felony or theft. (111. Rev. Stat. 1981, ch. 38, par. 19 — 1(a).) Home invasion requires no specific intent at the time of unauthorized entry but requires injury to a person after the entry. (111. Rev. Stat. 1981, ch. 38, par. 12 — 11(a)(2).) Battery can be an included offense of home invasion, but here the aggravated battery charged was based upon the battery being against a victim 60 years of age or older. (111. Rev. Stat. 1981, ch. 38, par. 12 — 4(b)(10).) Neither by the statutory provision for home invasion nor as charged was the victim required to be 60 years of age or older. Evidence was introduced that the defendant struck Mrs. Dow more than once. None of the offenses were carved from the same physical act. (See People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) None of the convictions need be set aside because of the existence of other convictions.

Defendant maintains that the designation of home invasion as a Class X felony is unconstitutional, because it violates the separation of powers in limiting the sentencing discretion of judges. Any statutory classification of an offense for sentencing purposes does this. Clearly, no violation of the separation of powers results.

Finally, defendant maintains a directed verdict should have been granted the defendant at the close of the State’s case because the State failed to prove that defendant was not a police officer acting in the line of duty as required by section 12 — 11(a) of the Criminal Code of 1961 in defining the offense of home invasion. The evidence of admissions by defendant show that even if he had been a police officer, he was not acting in the line of duty. (See People v. Davis (1982), 106 Ill. App. 3d 260, 435 N.E.2d 838.) We affirm.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.