author: Mr. JUSTICE SEIDENFELD

text:
    Elmer Kraegel et al., Plaintiffs-Appellees, v. The Village of Wood Dale, Defendant-Appellant.
    (No. 71-314;
    Second District
    March 15, 1973.

      Samuel A. LaSusa and Dom J. Rizzi, both of Chicago, for appellant.
    Edward Van de Houten, Jr., of Glen Ellyn, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant, Village of Wood Dale, appeals from a declaratory judgment granting plaintiffs’ proposed use of a 200-unit apartment complex and declaring the village zoning ordinance invalid as applied to plaintiffs’ property. At issue are the number of units plaintiffs may place on their property.

Plaintiffs are owners of vacant property located near the center of the Village of Wood Dale. The property is presently zoned M-l (light manufacturing ). It is in the shape of a trapezoid bordered diagonally on the north by the Chicago, Milwaukee and St. Paul Railroad. North of the railroad tracks is the heavily traveled Irving Park Boulevard along which the land is commercially zoned and used. Along the small side of the trapezoid to the east and the southeast is vacant property zoned R-l (single family residences). Near the center of the southern border of the subject property are single family residences, and to the southwest townhouse zoning. The only access to the property is from the west by Division Street. To the south of Division Street on the western border, the property is zoned R-3 (multiple family residences); and to the north of Division Street on the western border a small vacant parcel is zoned R-l, above which is a commercially zoned and used parcel.

Plaintiffs’ proposed construction consists of five uniform four story buildings with a car-and-a-half parking per unit. The buildings would surround a cul-de-sac along with a recreational building, a pool and deck, with substantial amounts of landscaped green area surrounding the buildings. There would be 200 single and two bedroom apartments, two-thirds of which would be two bedroom.

The zoning ordinance of the Village of Wood Dale proides for R-3 multiple family residence districts with certain area-per-dwelling unit limitations. Under R-3 zoning of the subject property, plaintiffs would be entitled to construct approximately 177 units.

The village zoning ordinance also contains a special use provision under which is the subcategory of “Planned Unit Developments”. Special uses are designated such in the ordinance because their unique character “cannot be properly classified in any particular district or districts without consideration in each case of the impact of those uses upon neighboring lands and upon the public need for the particular use of the particular location.” No special use may be granted by the village unless the proposed use:

“a. is deemed necessary for the public convenience at the location;
b. is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
c. will not cause substantial injury to the value of other property in the neighborhood in which it is located;”
ft ft ft

Allowable special uses include, for example, hospitals and clinics, sanitariums, and libraries.

As part of the Village of Wood Dale’s zoning scheme, planned developments may be characterized as a special type of special use. According to the village ordinance they are “of such substantially different character from other special uses that specific and additional standards” are set out for them. A planned development is defined under Section III of the ordinance as a “lot, parcel or tract of land which is developed as an integrated unit and contains two or more principal buildings”. The ordinance also states that planned developments must be necessary, desirable, and appropriate with respect to tire primary purpose of the development, and not be of such a nature or so located as to exercise a detrimental influence on the surrounding neighborhood. Exceptions to applicable bulk regulations are allowable in the case of a planned development if “the minimum lot-area-per-dwelling-unit requirements of this ordinance would not be decreased by more than 15 percent in any such development containing residential uses 6 * It is conceded that the proposed 200 unit apartment complex does not exceed the R-3 area-per-dwelling unit limitations by more than 15%.

The proceedings below are not entirely free from ambiguity. Plaintiffs initially petitioned the village to rezone the subject property R-3 and apparently also requested planned development status so as to qualify for the 15% “bonus” factor under the planned unit development provisions of the village ordinance. The Plan Commission recommended that the subject property be rezoned R-3, and consistent with R-3 area-per-dwelling unit limitations, that plaintiffs be limited to 170 units. The village counsel refused plaintiffs’ application and the property remained zoned M-l. It is not clear from the record whether the village council’s refusal to rezone to R-3 as recommended by the Plan Commission was due to plaintiffs’ insistence on the bonus units in excess of R-3 limitations.

After denial of their application, plaintiffs brought the present declaratory judgment action. The initial complaint requested the zoning ordinance be declared unconstitutional and invalid as applied to the subject property and requested rezoning to R-3. During the trial, an amended complaint was filed alleging plaintiffs’ proposed construction of the 200-unit complex, and requesting that the proposed use be allowed free from the restrictions of the village’s zoning ordinance. The judgment of the trial court found the zoning ordinance confiscatory without any corresponding benefit to the public and allowed plaintiffs’ specific proposed use. There was no mention either in the original complaint, the amended complaint, or the court’s judgment order of the special use and planned development provisions of the village’s zoning ordinance.

The village concedes that the subject property should be zoned R-3, but contends that the proposed use qualifies neither generally as a special use nor in particular as a planned development under the zoning ordinance. The village argues that the proposed use does not constitute a special use because there is no evidence that the construction of 200 dwelling units on the property, rather than the number of units permitted under an R-3 zoning district, is necessary for the public convenience; and additionally that the public safety and welfare will not be protected by constructing the 200 units because of potential fire-safety problems. The village also argues that the proposed use does not constitute a special use because the apartment complex is not something of unique character but rather something contemplated under the R-3 classification. The village concludes that its refusal to rezone was therefore proper and the trial court’s judgment should be reversed.

Plaintiffs devoted most of their brief to demonstrating from the evidence the invalidity of the village’s zoning ordinance according to the traditional tests enumerated in Hartung v. Village of Skokie (1961), 22 Ill.2d 485, and other cases. Plaintiffs also argue that the special use and planned development standards were met; that the denial of a special use is subject to judicial review on constitutional grounds; and that plaintiffs need not show that their proposed use conforms to the special use provisions of the village’s zoning ordinance. In oral argument counsel for the plaintiffs stated that while the plaintiffs do not have to show compliance with the ordinance standards, the fact that the proposed use does conform to the standards demonstrates the reasonableness of the proposed use.

Although it is undisputed that the existing zoning classification is invalid, the question which was presented to the trial court and which is before this court is the reasonableness of prohibiting the requested use of plaintiffs’ property. In testing the validity of the zoning ordinance in this case, we are only concerned with the validity of the ordinance insofar as it prohibits this proposed use. (Schultz v. Village of Lisle (1972), 53 Ill.2d 39, 42, 289 N.E.2d 614, 616; First Nat. Bk. of Lake Forest v. Vil. of Northbrook (1971), 2 Ill.App.3d 1082.) While the declaratory relief sought a rezoning to R-3, it also sought to void the village ordinance insofar as it prohibited the proposed use of the property for a 200 unit apartment complex. The latter relief was granted, upon which this appeal is taken.

Second, we are not directly concerned whether the village properly or improperly determined that plaintiffs’ proposed use failed to qualify as a special use or planned development. The decision of a municipal zoning authority constitutes a legislative act and ordinarily is subject to review only on constitutional grounds. (Columbus Park Congregation v. Bd. of Appeals, Chicago (1962), 25 Ill.2d 65, 70, 71.) The fact that a special use was denied does not impair plaintiffs’ right to test the effects of the denial by the traditional standards of reasonableness which govern review of zoning ordinances. (Pioneer Trust & Sav. Bk. v. McHenry Cty (1968), 41 Ill.2d 77; Hartung v. Village of Skokie (1961), 22 Ill.2d 485; Elmhurst-Chicago Stone Co. v. County of Kane (1970), 129 Ill.App.2d 190.) The failure to fulfill one or more of the requirements of a special use ordinance will not necessarily justify denial of the proposed use if the prohibition of the proposed use is not required by the public health, safety, morals, or welfare, and if there is no adverse effect on adjacent properties. Pioneer Trust & Sav. Bk. v. McHenry Cty (1968), 41 Ill.2d 77, 81-82, 84-87.

The traditional tests to review zoning determinations are well known. They include such factors as the character of the neighborhood and existing uses and zoning of nearby property; the depreciation of surrounding property values likely to result from the proposed use; the value of the proposed use to plaintiff (hardship) as compared to the gain to the public if the property remains restricted, that is, the basis of the restriction in public health, safety, and welfare, which includes consideration of the care with which the community has undertaken in planning its development. (Pioneer Trust & Sav. Bk. v. McHenry Cty (1968), 41 Ill.2d 77, 85; Hartung v. Village of Skokie (1961), 22 Ill.2d 485, 493-495; Schiffer v. Village of Wilmette (1969), 105 Ill.App.2d 80.) The person attacking the ordinance has the burden of demonstrating its invalidity and must prove by clear and convincing evidence that the zoning ordinance is, as to him, arbitrary and unreasonable and without substantial relation to public health, safety, morals or welfare. Schultz v. Village of Lisle (1972), 53 Ill.2d 39, 42, 289 N.E.2d 614, 616; Hartung v. Village of Skokie (1961), 22 Ill.2d 485.

The application of the traditional tests in large part is comparative. For example, hardship on the plaintiff depends upon what uses the plaintiff’s property is limited if his proposed use is denied. Since the village concedes on appeal that the subject property should be zoned R-3, the true issue becomes the reasonableness of restricting plaintiffs to the 170 or so units contemplated by R-3 area-per-dwelling unit limitations as compared with the 200 units plaintiffs propose to construct. (Cosmopolitan Nat. Bk. of Chicago (1961), 22 Ill.2d 367; First Nat. Bk. of Lake Forest v. Vil. of Northbrook (1971), 2 Ill.App.3d 1082.) The testimony at the trial court will only be considered as it is pertinent to this narrow issue, and not as it relates to the invalidity of the underlying M-l classification of the subject property.

Plaintiff’s first witness was a general contractor and beneficial owner of the subject property. He testified that the buildings would be four stories high and that plaintiffs were encouraged by the village to go high and leave as much green area as possible from the standpoint of esthetic development. He stated the buildings would be structural steel skeletons with masonry exterior and poured concrete floors over bar joists. As to traffic, the witness stated studies indicated that because of proximity to a railroad depot, there would be far less traffic movements generated by the proposed use than normally would be the case. Also the witness pointed out that Wooddale Road (to which Division Street immediately leads) is being enlarged to four lanes. One of the proposed buildings, each of which is 40' high, would be approximately 40' away from an undeveloped piece of property zoned R-l (single family residence).

Mr. Thomas Collins, a real estate broker and appraiser testified that the highest and best use of the subject property is for a high density residential site. The witness noted there were a number of apartments zoned in the village in the past few years, some of which exceeded low-rise proportions, and one which was in excess of 10 stories although surrounded by much open land in the form of a golf course. The subject property was characterized as a unique parcel in the DuPage County area in that few communities in the county have any amount of open land close to the town center available for such a use; and that the subject property was ideally suited for multi-family use. Mr. Collins testified that the traffic generated by the 200 units would not create serious health or safety problems. Concerning access to the subject property, Division Street was classified as multiple family or potential multiple family, and the witness noted that almost every community in DuPage County having any amount of multiple family housing has apartment complexes with access of similar nature as that of the subject property. As to fire hazards because of limited access, he testified that there is plenty of room on the property itself to provide on-site roadways and access ways to Division Street. Mr. Collins said that the density of the subject property, 25 units per acre, is low-density by today’s standards considering the subject property is located in the heart of town across the street from a commuter station to downtown Chicago; and that it is not uncommon for many of the communities such as Elmhurst, Wheaton, Lombard, and several others to have adopted high-density multiple family ordinances where the density has reached 40 units per acre and higher. These towns were said to have reclassified to high-density zoning in the center of town with a view to possible revitalizing the business interests of the town. The witness concluded that the present value of the subject property (zoned M-l) is $160,000, and under the proposed use would be $350,000, and that the proposed use would be a benefit to the community in many ways, including the tax base.

. Another expert for plaintiffs, Mr. Don Neuses, testified the highest and best use of the subject property would be a planned unit development for multiple family residences. His definition of highest and best use included the greatest net return in property value as well as net return to the community and general need in the community for the proposed use. The witness acknowledged there would be an increase in traffic in the area, but the proximity of the railroad depot and local stores would mitigate the amount. Mr. Neuses considered the density of the proposed use of the subject property low, since it is situated close to the main part of town, and pointed out the village of Lombard had recently altered its density in downtown areas to 43 units per acre with unlimited height restrictions. The witness stated the proposed change would not diminish surrounding property values and that even a 4-story 40' high building abutting single family residence property would not result in diminished value if properly planned as in this case. The property was estimated worth $300,000 under the proposed use and only $200,000 under existing zoning.

All of plaintiffs’ expert witnesses testified that the proposed use would not impair air or light to adjacent properties, would not increase fire or other dangers, would not impair the taxable value of land in the community, and would not increase storm-water run-off hazards.

Defendant’s witness, Mr. James Dunn, testified the highest and best use would be multiple family, and by using the village’s standards, R-3 zoning would constitute high density. Because of limited access, the witness stated that the maximum number of units the property can accommodate would be in the neighborhood of 136 units; that based on the witness’s familiarity with density in other towns, 17 units per acre is appropriate. Based on comparative figures from other towns, the value of the property at 136 units would be $272,000 or $2000 per unit. Mr. Dunn testified the 200 units proposed would be an overdevelopment; that too great a density might require additional access, which because of the density and traffic would possibly have a detrimental effect on $60,000 homes to the south; and that there might be a restriction on adequate light, pure air, and safety from the proposed use because of the 200 units in a cul-de-sac street. On cross-examination, the witness admitted the subject property could not be seen from the street on which the $60,000 homes are located; that the one house viewing the subject property from the west is very modest (less than $10,000); and that on adjacent R-3 property the density is 24 units per acre. When pressed on how the figure of 25 units per acre constituted an overdevelopment, the witness stated the figure was based on remaining green area and his experience and familiarity with other village densities. However, the witness noted that Lombard has R-5 zoning, planned development with unlimited density, which was adopted with a view of revitalization of the central shopping area; that a high-rise building in Lombard abuts a residential area; that one of the communities he referred to in basing his 17 units per acre figure has recently adopted a master plan allowing higher densities for high-rise apartments; and that in general the higher the building the greater the green area that could be left for esthetic development.

Defendant’s last witness, Jack Haynes, a fire protection engineer and member of the village fire department, testified that ingress and egress of the proposed use should be improved; that the inability of fire trucks to get to the back of all the buildings to evacuate people from the fourth floor and fight a fire constituted a life-safety hazard, and a fire hazard. The witness also visualized that at 5:00 P.M. due to nearby traffic congestion,' difficulty would be encountered in getting access to the area in case of fire. On cross-examination it was developed that only portions of two of the five buildings could not be reached by fire fighting apparatus which required paved access to evacuate persons in the buildings.

Admittedly the case is a close one because of the presumption of validity accorded to defendant’s zoning ordinance in prohibiting the proposed use (Schultz v. Village of Lisle (1972), 289 N.E.2d 614, 615; Camboni’s, Inc. v. DuPage County (1963), 26 Ill.2d 427, 432) and the narrowness of the issue involved. However, we conclude that the testimony sufficiently supports the trial court’s finding that the prohibition of the proposed use is unreasonable and confiscatory without any corresponding public benefit.

There was little evidence on the hardship plaintiffs would suffer if they were limited to R-3 standards. Accepting Mr. Dunn’s figure of $2000 per unit, plaintiffs would suffer approximately $50,000. On the other hand, there was very little persuasive evidence that indicated plaintiffs proposed use should be prohibited. Plaintiff presented two experts who testified the highest and best use of the property was that proposed. The proposed use was characterized as low-density, although it was repeatedly acknowledged that there is a trend both in the village and other similar communities toward high-rise and high-density structures. Significantly, an adjacent property contains apartments in the same density as that proposed. Further, testimony indicated the proposed use is designed to maximize green area, a factor permitting higher densities.

Mr. Dunn’s testimony that the proposed density of 25 units per acre constituted an overdevelopment was based on limited access, increased traffic, remaining green area, and reference to other communities. His testimony was mitigated by several factors. He spoke largely in possibilities while plaintiffs’ experts were more certain. The proposed use was designed to increase green area. The trend in other communities was toward higher density housing in centrally located areas. The concern for limited access and increased traffic was directly contradicted by plaintiff’s experts who also took into consideration the proximity of local stores and the commuter depot. The possible detriment to the $60,000 homes to the south was apparently based on the assumption that an additional right of way would extend south causing increased traffic to pass by these homes. However, the proposed use contemplates only access to the west along Division Street so that traffic flows would not affect the $60,000 residences.

Jack Haynes’ testimony that the limited access constituted a life-safety hazard must be weighed against the testimony of plaintiffs’ experts that there is no fire hazard and that there is plenty of space for access-area to the buildings for fire fighting apparatus. Also significant is the fact that many apartment complexes in the DuPage area have similar modes of access; that village fire regulations will be complied with; that the buildings are primarily steel and stone; and that the fire trucks can reach all the buildings, and almost all parts of all the buildings.

Not to be overlooked is the fact that the proposed use would have beneficial effects on the community. Testimony indicated the proposed use would have beneficial tax effects, could be helpful in a revitalization of the downtown area, and would be a convenience to commuters.

Finally, we note that the village allows as planned developments densities similar to that proposed. The trial court testimony indicates plaintiffs have made a strong showing that their proposed use fulfills the literal requirements of defendant’s planned development scheme. The proposed use, consisting of five uniform buildings with a swimming pool and recreational building, fits the village definition of planned development as a “tract of land which is developed as an integrated unit and contains two or more principal buildings.” It is clear from the ordinance, that unlike other special uses, planned developments include residential uses and specifically allow exceptions to applicable “residential” bulk regulations. Public convenience is promoted by the proposed use because of its benefit to commuters and possibilities of revitalization to central Wood Dale. The property was characterized as a unique parcel ideally suited for the proposed use, and there was testimony that the highest and best use of the subject property, taldng into consideration the general need and net return to the community, was the use proposed. Plaintiffs’ literal compliance with the special use and planned development provisions of the village ordinance constitutes an additional factor demonstrating the arbitraiy and unreasonable nature of the prohibition of plaintiffs’ proposed use by the village zoning ordinance.

We conclude that the judgment of trial court was correct in finding defendant’s zoning ordinance invalid as applied in prohibiting plaintiffs proposed use. The judgment below should therefore be affirmed.

Judgment affirmed.

T. MORAN and GUILD, JJ„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    Richard Ray Jackson, d/b/a Little Richard’s Lounge, Plaintiff-Appellant, v. Illinois Liquor Control Commission, Defendant-Appellee.
    (No. 11912;
    Fourth District
    April 19, 1973.
    Aprian & Ross, of East St. Louis, and Conrad Noll, Jr., of Springfield, both for appellant.
    William J. Scott, Attorney General, of Chicago, (Warren K. Smoot, Assistant Attorney General, of counsel,) for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiff-Appellant, Richard Ray Jackson, d/b/a Little Richard’s Lounge, appeals from a judgment of the circuit court affirming an order of the Illinois Liquor Control Commission revoking appellant’s liquor license on the ground that he operated and permitted the premises in question to be used for gambling. The evidence upon which the Commission based its ruling is contained in the testimony of Clarence Luckett, an agent of the Illinois Bureau of Investigation. Appellant’s brief contains a single citation of authority, to-wit: Logan v. Civil Service Com., 3 Ill.2d 81, 119 N.E.2d 754, which is urged in support of the universally recognized proposition that, while the findings of the administrative agency on questions of fact are prima facie correct, they may be reviewed to determine whether they are supported by the evidence and may be set aside if they are against the manifest weight of the evidence. This court, the appellant, and the appellee are in complete accord on the point.

The testimony of appellant’s witnesses and that of Luckett produce contradictions. Appellant argues that the Commission should have believed his witnesses and by the same token should not have believed Luckett. To put it another way, he is unhappy with the manner in which the issue of credibility was resolved. This issue involves nothing more tiran the presence of conflicting testimony and is controlled by Crepps v. Industrial Com., 402 Ill. 606, 85 N.E.2d 5. We affirmed the decision of the circuit court from the bench, during oral argument, and then indicated that a brief opinion would be filed.

Judgment affirmed.

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


author: Mr. JUSTICE THOMAS J. MORAN

text:
    Herbert J. Jackson, Individually and as Trustee Under the Will of Emily M. Jackson, Deceased, et al., Plaintiffs-Appellants, v. The County of Du Page, Defendant-Appellee.
    (No. 71-343;
    Second District
    March 5, 1973.

      Rehearing denied April 24, 1973.

      Edward Van de Houten, Jr., of Glen Ellyn, for appellants.
    William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., and Malcolm F. Smith, Assistant State’s Attorneys, of counsel,) for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiffs, fee owners and contract purchasers of certain property, brought this action for declaratory judgment seeking a determination that the zoning ordinance, classifying their property as a single family residence district, was void. It is then- position that they should be permitted to construct a gasoline service station and convenience food market on the site. It is from an order denying the requested relief that plaintiffs appeal.

Plaintiffs’ property is located on the southwest comer of the intersection of Villa and Fullerton Avenues in Du Page County, with a frontage of 235 feet on Villa and approximately 89 feet on Fullerton. Although this property is unincorporated, the land abutting and adjacent to the south and southwest is within the Village of Addison. Along Villa Avenue, one-half block north of the intersection on the east side of the street, and one block north on the west side of the street, the land is also within the limits of the Village of Addison. The area to the east is unincorporated. Plaintiffs’ property, then, is located on an irregular corridor of unincorporated land which continues westward on Fullerton for approximately two blocks and extends north and south of Fullerton for approximately one to one and one-half blocks.

A Commonwealth Edison right of way (approximately two hundred feet wide) runs in a southwesterly to northeasterly direction in the area in question, diagonally crossing the intersection of Villa and FuUerton. The right of way occupies the northwest corner of the intersection and about half of the northeast corner, and crosses the northwest corner of plaintiffs’ property. Along the right of way are electrical system support towers.

On the east side of Villa Avenue, directly north of the right of way, a large area is occupied by the Addison Sewerage Disposal Plant and Public Works Garage. North of the plant are single family residences, and north of those are the King Arthur Apartments.

Immediately north of the right of way on the west side of ViUa, and stretching west, the land is mostly vacant. Approximately one hundred fifty feet north of the right of way is a two-story, two-family residence next to which is a taxi cab company. The entire area north and northwest, directly across from the Disposal Plant, is developed as single family residences.

East from the subject property, both north and south of Fullerton Avenue, the land is sparsely developed with single family residences and is otherwise vacant except for farming approximately one-fifth mile east on the north side of Fullerton. Small shacks are located on the southeast corner of the intersection.

Adjacent, to the south and southwest of the site, property is developed with single family residences, except for land used as a farm about a block to the south.

With the exception of the Addison Disposal Plant which is zoned as a community business district, all of the Village land described is zoned for residential purposes. All of the County land described is zoned for single family residences.

It is well settled that there is a presumption favoring the validity of a zoning ordinance, and the party attacking its validity has the burden to prove, by clear and convincing evidence, that it is arbitrary and unreasonable. (Urann v. Village of Hinsdale, 30 Ill.2d 170, 174 (1964); La Salle Nat. Bank v. City of Chicago, 4 Ill.2d 253, 256 (1954).) The factors to be considered in a determination of validity have been frequently stated, Tillitson v. City of Urbana, 29 Ill.2d 22, 27 (1963) and Chi. Title & Trust Co. v. Vil. Wilmette, 27 Ill.2d 116, 123-124 (1963), but the most important of these are the uses and zoning of surrounding property. Chi. Title & Trust Co. v. City of Harvey, 30 Ill.2d 237, 239 (1964), Ryan v. City of Elmhurst, 28 Ill.2d 196, 198 (1963).

Plaintiffs maintain that the character of and other uses in the area are incompatible with the single family classification of the site property. The evidence related describes the uses and zoning of land for at least a thousand feet in any direction from the site. In the entire area, the only exception shown to residential zoning is the Addison Disposal Plant which is not under the jurisdiction of the defendant. The only exceptions to residential usage are the electrical right of way (a use exmpted from zoning restrictions), the taxi cab company (a non-conforming use) and a day camp which is across Salt Creek on the eastern edge of the Disposal Plant. While the area contains large tracts of vacant land, most of the occupied land, both Village and County is devoted to and zoned for residential use. Abutting to the south, adjacent (across an alley) to the west and continuing in a south and southwesterly direction from plaintiffs’ property, lots are improved with single family residences. The area north on Villa Avenue and directly to the west of the Disposal Plant is totally built up with homes of “very excellent quality” and, within the described portion of the County, there are scattered single family residences in every direction from the subject property.

While plaintiffs stress the deviations from single family usage, the exceptions are actually few, and the area zoning, except for the Disposal Plant, is consistently residential. Under the facts shown, plaintiffs have failed to prove that the character of the area is incompatible with the residential classification of tire subject property.

Plaintiffs’ argument that the site is undesirable for residential purposes because of its proximity to the electrical right of way and the Disposal Plant loses force in light of other property, either zoned or used residentially, which is even closer to those developments. In view of the extensive areas of undeveloped land in the vicinity of the site and the fact that the electrical right of way completely occupies the northwest corner and a goodly portion of the northeast corner of the intersection, we are not impressed by plaintiffs’ contention that the three other vacant corners of the intersection prove the site is unsuited to residential purposes.

Plaintiffs also point out that the site property has a value of only $6,000 as presently zoned, whereas it is worth $80,000 for the proposed use. However, that fact in itself is insufficient to overcome the presumption of validity of the ordinance. (Reeve v. Village of Glenview, 29 Ill.2d 611, 616 (1963); Hedrich v. Kane County, 117 Ill.App.2d 169,174 (1969).) Although it is asserted that the loss of value should be considered in conjunction with the fact that there would be no detriment to the public welfare by reason of construction of the proposed use, the evidence on that issue was contradictory. There is likewise a conflict in the evidence on the question of whether the proposed use would cause a depreciation of surrounding properties, and what the highest and best use of the site property would be. Where, as here, there is room for a fair difference of opinion as to the reasonableness of the zoning classification in question, the ordinance will not be disturbed. Standard State Bk. v. Vil. Oak Lawn, 29 Ill.2d 465, 471 (1963); Vedovell v. City of Northlake, 22 Ill.2d 611, 614 (1961).

After a consideration of the entire record, we have concluded that there was no error in the trial court’s finding in favor of the validity of the ordinance.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE GUILD Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Smith et al., Defendants-Appellants.
    (Nos. 71-262—71-265 cons.;
    Second District
    January 22, 1973.

      Supplemental opinion upon rehearing filed April 25, 1973.

      Paul Bradley and Ralph Ruebner, both of Defender Project, of Elgin, for appellants.
    William V. Hopf, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendants James Smith and Joseph Carter were jointly tried for the burglary of two buildings known as No. 73 and No. 75 and a constraction trailer in Itasca, Illinois, and for theft of property, both in excess of $150, and theft of property of a value less than $150. They were found guilty of burglary of building No. 73, guilty of burglary of building No. 75, guilty of theft from building No. 75 in excess of $150, and guilty of theft from the trailer. The trial court sentenced Carter to two concurrent terms of 8-10 years in the Illinois State Penitentiary for the burglaries only. The trial court sentenced Smith to two concurrent terms of 5-10 years in the Illinois State Penitentiary for burglary of building No. 73 and building No. 75 only. No sentences were imposed for the thefts.

On the night of September 26, 1970, police officers from the village of Itasca, observed a car parked with its lights out on the lawn of building No. 75 in the Central Manufacturing District. The hood and trunk of the car were open. The officers investigated, finding a passenger in the front seat and a female person standing near the car. Sergeant Andersen noticed one of the individuals was carrying a pipe wrench and saw the pipe wrench placed under the car. When the officers approached the car and looked in on the floor of the back seat area, they observed two pair of channel lock pliers, one construction hard hat and a hacksaw. Upon the officers’ request, the female member of the party opened the trunk and inside the trunk the officers found a large orange metal box with tools inside and two boxes of sprinkler heads. These items were subsequently identified by employees of the Grinnell Company as having been located in the construction trailer-belonging to the Grinnell Company. The pipe wrench was further identified as the property of the Grinnell Company; it had been in building No. 75. Upon investigation of building No. 75 Sergeant Andersen saw three or four orange metal boxes open and also observed numerous wrenches and tools stacked neatly near to an exit door which was close to the car. They further discovered that the window of the trailer was broken and that buildings No. 73 and No. 75 had been entered.

James Smith, one of the defendants, testified on his own behalf. He stated that on the evening of September 26, 1970, Joseph Carter came to him with an infected foot. A girl, known to them only as Pamela, offered to take them to the hospital in a car which belonged either to her or her boy friend. They went to Cook County hospital first and it was overcrowded. They then left for Aurora for another hospital known to Pamela. While proceeding north on Route 53 (which direction would take the defendants away from Aurora) the car overheated and they claimed to have turned around to go back to a gas station they had passed but before they could get there the car stopped entirely. The car was found parked in the Central Manufacturing District about 15 feet from Route 53. They raised the hood and the trunk lid as a disaster signal and Smith removed the radiator cap. Smith, then walked to some bushes, about 10 or 15 feet from the car to urinate and was returning to the car when the police officers arrived. Smith also testified that he looked in the trunk of the car but that there was none of the stolen items in the trunk or back seat of their- car.

At the conclusion of tire trial, the jury found both Smith and Carter guilty of the burglary of buildings No. 73 and No. 75, and the thefts from building No. 75 and the construction trailer. The defendants were found not guilty of theft from building No. 73. This appeal was taken from the judgment on the verdicts.

The defendants claimed that the evidence presented by the State was insufficient to prove the defendants guilty beyond a reasonable doubt. In support of this contention they have cited People v. Magnafichi (1956), 9 Ill.2d 169, 137 N.E.2d 256; People v. Henkel (1965), 60 Ill.App.2d 331, 208 N.E.2d 107; People v. Evans (1962), 24 Ill.2d 11, 179 N.E.2d 657; People v. Malone (1971), 1 Ill.App.3d 860, 275 N.E.2d 236. Each of these cases cited are distinguishable factually from the case before us. Based upon the facts, it is clear that the defendants were present at the scene, the buildings and trailer had been broken into, and they had possession of the stolen items.

Defendants contend that the evidence was insufficient to prove that the passenger Carter was guilty as an accomplice primarily because of his injured foot. It is true that mere presence at the scene of the crime is not sufficient to convict a person as an accessory or accomplice. However, in the instant case the evidence indicates that Carter was not only present at the scene but gave the police officer a registration card with the name on it of “Earl Johnson.” Likewise, the stolen goods were found in the trunk and back seat of the vehicle in which “Earl Johnson” (whose actual name is Joseph Carter) was sitting at the time the stolen goods were placed in the vehicle. The jury was properly instructed that unexplained possession of recently stolen merchandise may give rise to an inference of guilt. (People v. Littleton (1969), 113 Ill.App.2d 185, 252 N.E.2d 77.) The cases cited by defendants are not in point factually.

The defendants next raise the question of the admission of exhibits 11, 12 and 13, which exhibits consisted of tools which ha,d been found stacked near an exit door on the east side of building No. 75 but had not been removed from the building. Defendants cite People v. Fontana (1934), 356 Ill. 461, 190 N.E. 910 as authority. In Fontana the Supreme Court held that burglary tools found near the burglarized safe should not have been admitted in evidence. In that case, the only evidence connecting defendants with the burglary was circumstantial. In the instant case, the defendants were found in possession of various other items taken from the buildings and the trailer, the building had been broken into, and the tools in question had been found stacked near the door obviously for removal thereof. However, the defendants were apprehended prior to the taking of these tools. Additionally, the three exhibits were introduced solely for the purpose of showing intent to commit a theft. It is expressly noted that a five foot pipe wrench in the possession of the defendants had already been taken from building No. 75. In these respects the instant case differs materially from Fontana. The exhibits complained of, being 11,12 and 13, were properly admitted.

The defendants contend that the State failed to disclose to defense counsel information in its possession favorable to the defendants in that the State did not call Pamela, the companion of the defendants at the time of the burglary. In support of this contention they have cited People v. Divito (1966), 66 Ill.App.2d 282, 214 N.E.2d 320. The instant case is distinguishable in that in Divito the witness was a third party and not a friend of the defendant. It would appear that the defendants if they felt Pamela was a material witness, and inasmuch as she was their friend and them companion that evening, would have called her. The attorney for the defendants at no time raised this question or issue in the trial court, except for a question of discovery. It would strongly appear that this witness was within the control of the defense. The fact that the State did not call Pamela, would not necessarily indicate she would have given testimony advantageous to the defendants. Defendants contend it was the obligation of the State to call Pamela, the companion of the defendants, as a witness. We do not agree.

Defendants contend that die State failed to prove the value of the goods stolen exceeded $150 and that the case should be remanded for re-setitencing. No sentence was imposed for the theft by the trial court, tinder the circumstances of this case this court is of the firm opinion where there were two convictions of burglary, the trial court was not influenced in its sentence by whether or not the value of the goods stolen incident to the burglaries, exceeded or was less than $150. There were convictions and sentences for two separate and distinct burglaries. Where the defendant was found guilty of burglary, the trial court was correct in not imposing a sentence for theft from the building burglarized. People v. Brown (1972), 52 Ill.2d 94, 285 N.E.2d 1. People v. Budzynski (1972), 9 Ill.App.3d 24, 291 N.E.2d 676.

' We will not substitute our judgment for that of the jury unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt as to the question of defendants’ guilt. We consider the evidence presented established the guilt of the defendants beyond a reasonable doubt. The judgment entered upon the conviction of theft is reversed and the judgment entered upon the convictions of burglary is affirmed.

Reversed in part and affirmed in part.

SEIDENFELD and T. MORAN, JJ., concur.

SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE GUILD

delivered the supplemental opinion of the court upon rehearing:

Subsequent to the promulgation of the above opinion, the defendants petitioned for rehearing. We allowed the petition.

Defendants contend that the sentencing provisions of the new Unified Code of Corrections effective January 1, 1973, Ill. Rev. Stat. 1972, ch. 38, sec. 1005 — 8—1, are applicable to the sentences imposed herein. Section 1008 — 2—4 of the Unified Code of Corrections provides in substance that if the offense being prosecuted has not reached a final adjudication, the sentences under the Unified Code apply if they are less than under prior law. We have previously held in People v. McCloskey (1971), 2 Ill.App.3d 892, 270 N.E.2d 126; People v. Gargano (1973), (Ill.App.3d), that a case pending upon appeal has not reached final adjudication. (People v. Chupich, 53 Ill.2d 572.) We agree therefore that the new Unified Code of Corrections is applicable in the instant consolidated cases.

Under the new Unified Code, burglary is classified as a class 2 felony. (Ill. Rev. Stat. 1972, ch. 38, sec. 19 — 1.) The sentence that may be imposed under the code for a class 2 felony is an indeterminate sentence set by the court, the minimum term shall be at least one year and the maximum shall not exceed twenty years. Additionally, in a class 2 felony the minimum term shall not exceed one-third of the maximum. Ill. Rev. Stat. 1972, ch. 38, sec. 1005 — 8—1.

The State contends in substance that the sentences imposed herein are not in fact greater than authorized by the new code. In support of this contention, the State insists that inasmuch as a fine of not to exceed $10,000 may now be imposed in a case such as the one before us under the new code; and that upon violation of parole that the defendants could in fact receive a greater sentence upon re-commitment for violation of parole under the provisions of sec. 1003 — 3—9 (a) (3) (i) of the new code, that therefore the new code provisions are not in fact less than the former statutory provisions.

We do not believe that the legislature intended that a possible fine, and a possible violation of parole should be considered in determining which of the penalty provisions were less under the former statute or under the new code. To this court, the actual term of imprisonment is the criterion and that is the basis upon which we shall base our determination. See People v. Gargano, supra; People v. Lobb (1973), 9 Ill. App.3d 650.

The sentences imposed upon Joseph Carter for the two burglaries were 8-10 years. The provisions of the Unified Code of Corrections being applicable and in conformity with sec. 1005 — 8—1 (c) (3) the two sentences for the class 2 felonies are reduced to a minimum of 3 years and 4 months, and the maximum of ten years in each case.

Likewise, the two concurrent sentences of 5-10 years imposed upon James Smith for burglaries are reduced to a minimum of 3 years and 4 months, and the maximum of 10 years.

Under the authority of Supreme Court Rule 615, (Ill. Rev. Stat. 1971, ch. 110 — A, sec. 615,) the sentences are so modified. Convictions affirmed. Sentences modified upon rehearing.

SEIDENFELD and MORAN, JJ., concur.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    Bath, Inc., et al., Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 11658;
    Fourth District
    March 27, 1973.

      Lloyd F. Latendresse, of Decatur, for petitioners.
    William J. Scott, Attorney General, of Springfield, (Larry R. Eaton, Special Assistant Attorney General, of counsel,) for respondents.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

Bath, Inc., as owner and lessor of a certain landfill in Macon County, Illinois, and John H. Walker and John L. Walker, lessees of the landfill, were found to be in violation of certain rules and regulations relating to landfills. A fine of $2000 was imposed upon the owner corporation. A petition for variance submitted to the Pollution Control Board was denied by the Board in the consolidated enforcement and variance hearing. The appealed order of the Pollution Control Board also required that Bath, Inc., and Walker cease and desist from violations of the rules and regulations and specifically that: (a) Refuse shall be spread and compacted as rapidly as it is admitted to the site; (b) Refuse shall be covered daily as required by the Rules; (c) Cinders shall not be used as cover material; (d) Salvaging shall be carried out in a sanitary manner, salvaged materials being removed from the site daily or properly stored as required by the Rules; and (e) Underground burning shall not be permitted.

Upon this appeal from the order of the Board, the petitioners contend that the statute under which the rules were adopted is invalid as an unlawful delegation of legislative power. The findings of the Pollution Control Board are alleged to be against the manifest weight of the evidence, and, finally, the rules are said to be violative of due process and that they bear no reasonable relationship to any valid end to be accomplished.

We affirm the order of the Pollution Control Board in its entirety.

The rules that petitioners were found to have violated were adopted in 1966 by the Department of Public Health pursuant to the provisions of Illinois Revised Statutes 1967, ch. 111%, pars. 471-476. That statute, the Illinois Refuse Disposal Law, provided that the Department of Public Health should supervise the operation and maintenance of refuse disposal sites and facilities and that it should prescribe rules and regulations with reference to the operation of said sites and defined the terms used in the Act. So far as is here concerned, the rules under review relate to spreading and compacting, cover, salvage operations, and prohibited activities, specifically, burning except in an approved incinerator.

The rules as adopted by the Department of Public Health in 1966 were filed with the Secretary of State upon their adoption. Upon the enactment of the Environmental Protection Act in 1970, the former Illinois Refuse Disposal Law was repealed. By the terms of the Environmental Protection Act, and specificaHy section 1049 (c), as a transitional measure, the legislature provided that the rules of the Department of Public Health on subjects embraced in the Illinois Refuse Disposal Law would remain in effect until action of the Pollution Control Board repealing, altering, or replacing such rules. See Ill. Rev. Stat. 1970, ch. 111%, par. 1049(c).

We find no merit in the contention of the petitioners that the rules are invalid by reason of want of legislative standards in the statutory provision authorizing the promulgation of rules. We deem it unnecessary to discuss such issue at length for the reason that the legislature in 1970 took cognizance of the rules and by the referred-to section of the Environmental Protection Act indicated legislative approval of those rules. The argument of the petitioners that the delegation of authority to make rules was an abdication of legislative responsibüity and an unlawful delegation can hardly be persuasive under such circumstance.

We are in agreement with the observations of the court set forth in Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292 N.E.2d 540:

“By reason of the increasing complexity of society and the burdens on all branches of government, courts and legislatures afike in the past 50 years have come to recognize that the delegation of functions to boards, commissions and agencies, is becoming more and more essential to efficient government. Speaking in Reif v. Barrett, 355 Ill. 104, 132, the Illinois Supreme Court has said:
Where the legislative body has the power to enact a law as a necessary adjunct to such power it has the legal right to adopt a procedure for the administration of such law. It may do this through commissions, or through boards, and it may grant to such administrative bodies certain authority and certain powers in keeping with the spirit of the act for the practical application and operation of the law.’
Although the essentially legislative and judicial powers cannot be delegated, we believe it implicit in the authorities that where direct or immediate judicial action is inexpedient or impractical, quasi-judicial functions may be conferred upon and exercised by an administrative agency, provided the laws conferring such powers are complete in their content; are designed to serve a general pubfic purpose; are such as to require a consistent and immediate administration; and further provided that aH administrative actions are subject to judicial review. See: Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907; Reif v. Barrett, 355 Ill. 104; Department of Finance v. Cohen, 369 Ill. 510; McRae v. Robbins (Fla.), 9 So.2d 284; 1 Davis, Administrative Law Treatise, sec. 2.10.”

We turn next to the issue of whether the findings of the Pollution Control Board as to specific violations are contrary to the manifest weight of the evidence. The record before us in this case amply demonstrates that the operation of a landfill was contrary to the rules and regulations. We find those rules and regulations to be valid. Indeed, without reciting the evidence, we note that many of the findings of the Pollution Control Board are based upon the testimony of the petitioners themselves to the effect that their operations were not in compliance with the rules. Such testimony is argumentative in nature in that the petitioners assert that the rules are undesirable, unreasonable or that they have a better notion as to what the rules should be. The photographic evidence in this record establishes the existence of the referred-to violations beyond any controversy.

On the issue of the finding as to the existence of underground burning, the petitioners assert that neither they or other witnesses knew the cause of the underground burning, and implicit in their argument is that a violation cannot be predicated upon the existence of burning in the absence of a finding that the petitioners by their affirmative act caused, or intended, the burning. This argument is not persuasive. The rule prohibits binning except in an approved incinerator and the balance of the rules relate to a handling of the refuse in the landfill so as to eliminate burning; It is not an element of a violation of the rule that the burning was knowing or intentional. We hold that knowledge, intent or scienter is not an element of the case to be established by the Environmental Protection Agency at the hearing before the Pollution Control Board upon the issue of burning. In this connection, see 46 A.L.R.3d 758, and the cases there collected.

No issue is presented that the fine imposed was made to apply only to the corporate defendant.

The order of the Pollution Control Board is affirmed.

Affirmed.

SMITH and SIMKINS, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Gregurich, Defendant-Appellant.
    (No. 11699;
    Fourth District
    March 27, 1973.
    John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Ronald L. Carpel, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

A jury found defendant guilty of aggravated battery upon a police officer. (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(b) (6).) Sentence of two to four years was imposed.

Upon appeal it is urged that the court erred in giving the State’s instruction, IPI, Criminal No. 24.10 and 4.05, and that the court erred in refusing to grant a mistrial.

It is not contended that the evidence was not sufficient to support the jmy’s verdict, and we do not set forth the evidence in detail. Eight police officers and deputy sheriffs testified in behalf of the prosecution, while the defendant and five companions testified for the defense. Defendant’s brother was acquitted upon the joint trial of a charge of aggravated battery upon a police officer occurring at the same time and place.

Upon the issue of the denial of a mistrial, the record shows that one Holsapple testified that he was a deputy sheriff who was directed to the scene. Upon arrival he reported to the city police officer in command and learned that two males and one female were in the “paddy wagon”, and he was directed to assist in placing the female in a squad car for transportation. He testified that he heard banging and obscenities shouted from the wagon but did not know the persons confined there. He, with other officers, removed the female. Holsapple was then asked what happened next and stated:

“Well, one of the two boys who I seen in the inside of the paddy wagon yelled at me and said, ‘Holsapple, you [obscenity omitted 1, I guess you are going to send me back to the penitentiary for ten years again.’ ”

Defendant’s retained counsel requested the court for a recess. Thereafter, he advised the court that he believed that the answer was not responsive:

“[B]ut, we are going to waive the right to make a motion for mistrial because we feel that the total case should be aired in front of this jury.”

Counsel then had a further discussion with his clients and withdrew his waiver of a motion for a mistrial. No further motion directed to the testimony was made. The State’s Attorney suggested that the court instruct the jury to' disregard the answer. Ultimately, defense counsel asked the court not to instruct the jury to disregard the answer for he “[I]ntend[ed] to cross-examine about it.” His cross-examination of Hols-apple was in detail as to whether the witness had talked with defendant while the latter was in jail, and whether the witness knew that defendant was going to testify in his own defense.

Among the witnesses called by defendant were Debbie Hise and Andrew Riley. On direct examination each testified to the circumstances where defendant had been asked for identification by a police' officer (not Holsapple), and each testified to defendant’s reply to the effect that he only had 60 days left and why couldn’t they give him a break. Defendant testified to making the same statement, and he also testified on direct examination to his being on parole and that he had been discharged from parole pending this trial.

Upon motion for a new trial, the court noted that defendant had testified in his own behalf and that the record of defendant’s conviction would be admissible for impeachment, although it apparently was not proven by the record of his conviction.

Defendant’s conviction was not remote in time within the rule of People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695. Defendant relies upon People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805; People v. Meid, 130 Ill.App.2d 482, 264 N.E.2d 209, and People v. Gleason, 36 Ill.App.2d 15, 183 N.E.2d 523. In each case the State’s witnesses testified to the acts of a defendant which would constitute a criminal offense but for which defendant had not been convicted, and so far as shown in the opinions, with which he had not been charged. In Cage, defendant was charged with murder during the robbery of a candy store. The prosecution called witnesses who testified to the defendant having robbed four candy stores following the date of the murder. The Supreme Court concluded that the trial court should have striken or excluded the testimony. Here, retained counsel chose to request that the court not admonish the jury to disregard the statement, and we find no other motion to strike or exclude. The defense testimony, itself, made apparent to the jury the status of his parole. Defendant does not contend that he was forced to introduce evidence because of the Holsapple statement, and the record suggests that the defendant sought to suggest to the jury that the police were “out to get him”. We find no reversible error.

The defense tendered and the court gave an instruction in the language of IPI, Criminal No. 24.06 (Ill. Rev. Stat. 1969, ch. 38, par. 7 — 1):

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against the imminent use of unlawful force.”

The prosecution tendered and the court gave IPI, Criminal No. 24.10 in the language:

“A person is not justified in the use of force if he is committing a forcible felony.”,

and a further instruction in the language of IPI, Criminal No. 4.05:

“When I use the words 'forcible felony’ I mean Aggravated Battery.”

Defendant urges here that the instruction in the language of IPI, Criminal No. 24.10 suggests that defendant was committing a forcible felony other than the battery at issue, and that the evidence does not show there was any other felony being committed by defendant.

The instruction, IPI, Criminal No. 24.10 is keyed to Ill. Rev. Stat. 1969, ch. 38, par. 7 — 4(a). The Committee Comments to the statute notes that ch. 38, pars. 7 — 1, 7 — 2 and 7 — 3 state the terms of the justifiable use of force in defense of one’s person or property, but that par. 7 — 4(a) limits such right and that:

“In general, he has no right of defense if he is attempting or committing a forcible felony. * * **.”

The instructions taken as a series correctly advised the jury of the right of self-defense and the limitations upon such right.

Defendant relies upon People v. McCauley, 2 Ill.App.3d 734, 277 N.E.2d 541. There defendant was charged with aggravated battery upon a police officer. The court gave instructions concerning the use of force by police where there was a resisting of arrest or attempt to escape. The court there held that the instructions referred to two crimes which had not been charged against the defendant and were, therefore, prejudicial. The facts of this case do not come within the rule stated in McCauley.

The Code of Corrections effective January 1, 1973, governs the terms of a sentence imposed in cases upon review. People v. Mize, 9 Ill.App.3d 647, N.E.2d; People v. Lobb, 9 Ill.App.3d 650; People v. Bailey, 1 Ill. App.3d 161, 273 N.E.2d 74.

Aggravated battery is a Class 3 felony. (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 12 — 4(d).) The minimum sentence for a Class 3 felony shall not exceed one-third of the maximum. (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1005 — 8—1(c)(4).) Upon the direction of the Code of Corrections and under the authority of Supreme Court Rule 615, the minimum sentence is modified, and as modified, the minimum sentence shall be not less than one year and four months, and the maximum sentence shall not be more than four years.

With the sentence thus modified, the conviction is affirmed and the cause is remanded to the Circuit Court of Macon County, with directions to issue an amended mittimus reflecting such modication.

Conviction affirmed, sentence modified, cause remanded with directions.

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


author: Mr. PRESIDING JUSTICE SMITH

text:
    Walter Wong, Plaintiff-Appellant, v. Gary W. Richards et al., Defendants-Appellees.
    (No. 11791;
    Fourth District
    March 27, 1973.

      Drach, Terrell & Deffenbaugh, of Springfield, for appellant.
    Griffin, Winning, Lindner, Newkirk & Cohen, and Gillespie, Burke and Gillespie, both of Springfield, (Alfred F. Newkirk, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The circuit court of Sangamon County entered judgments on jury verdicts finding the defendant Richards not guilty of negligence and the defendant Reynolds guilty of negligence and assessing plaintiffs damages for personal injuries in the sum of $5,000. There is clearly no issue of contributory negligence in this case and as to Richards the only issue on plaintiff’s appeal is that the trial court erred in refusing to direct a verdict in favor of plaintiff and against Richards.

As to Reynolds, the issues are that (1) the damages awarded are grossly inadequate, (2) that an instruction given to the jury stating that failure to exercise ordinary care to obtain proper medical treatment could be considered by the jury, and that any damages resulting from a failure to exercise such care could not be recovered, and (3) that the court erred in refusing plaintiff the right to examine an impartial medical witness as to the circumstances under which he examined the plaintiff and in refusing to call said witness as a court’s witness. Plaintiff requests that the case be reversed and remanded on the issue of damages only.

The plaintiff was driving south on U.S. Route 66, a four-lane highway with a painted median line, in the west southbound lane crossing the Lake Springfield bridge and approaching a curve south of the south end of the bridge. At that point there were two southbound lanes and two northbound lanes. The defendants Reynolds and Richards were driving north and coming around the curve. Richards was in the west northbound lane, Reynolds was either attempting to pass Richards on the right by cutting into the east northbound lane or as Reynolds testified, he was merely attempting to return to the right northbound lane from the left one. In the process of changing lanes, his car skidded so that his left front hit Richards’ right front door. Reynolds did not recall this. At about that point they were apparently driving between 40 to 45 mph and it is evident that Reynolds must have been driving slightly faster than Richards. On the day after the accident, Reynolds gave a statement that he was in a 45 mph zone and going 65 mph. Richards testified that the impact required him to swerve and that he had to turn to the left in order to avoid a head-on collision with the car in the southbound lane. He likewise testified that when he was struck by Reynolds “I lost my car — lost control of it and it swerved to the west and into the southbound lanes”. He testified also that he elected to turn into the southbound lanes rather than to go into Reynolds and that had he headed straight into the southbound lanes he would have had a head-on collision instead of getting hit in the rear end.

In this state of the record, it seems to be reasonably self-evident that the trial court did not err in denying the plaintiffs motion to direct a verdict for the plaintiff as to defendant Richards on the question of liability. In Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, the Supreme Court stated at p. 510 that “* * # [Vjerdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Under the circumstances with which he was confronted, Richards’ decision to make a sharp left turn into the southbound lane in order to avoid being hit in a head-on collision cannot be held to be negligence as a matter of law. Under the evidence it was the impact of Reynolds’ car which forced him into the southbound lanes or an instinctive move to avoid Reynolds. The reasonableness of Richards’ conduct after being confronted with the situation shown in this record is either not negligence as a matter of law or presents a jury question. As a jury question, the jury has made that determination and it is not against the manifest weight of the evidence. Richards’ conduct must be judged not in the light of what later events revealed might or could have been a better or a safer course of conduct, but against the standard of how a reasonable person would have reacted under the circumstances of the same sudden alarm. In our judgment that principle applies here. (Maddox v. Grisham, 124 Ill.App.2d 421, 260 N.E.2d 336; Hulsebus v. Russian, 118 Ill.App.2d 174, 254 N.E.2d 184; Wolfe v. Whipple, 112 Ill.App.2d 255, 251 N.E.2d 77.) The trial court did not err in denying the motion for new trial as to Richards and in entering a judgment against the plaintiff as to Richards upon the jury’s verdict.

In his notice of appeal, the plaintiff requests that as to Reynolds the court affirm the judgment on the question of liability and remand to the circuit court for a new trial on the question of damages alone. Reynolds counters with the proposition that that request for relief is not before us because of the provision of Ill. Rev. Stat. 1969, ch. 110, par. 68.1(2). That statute states that the post-trial motion must contain the points relied upon ® * * and must state the relief desired, as for example entry of a judgment, the granting of a new trial or other appropriate relief * * * a party may not urge as error on review of the ruling on his post-trial motion any points, grounds or relief not particularly specified in the motion. Reynolds’ position is untenable. Before plaintiff’s motion for new trial was passed upon, he moved to amend the motion for new trial to request a new trial on damages only. The defendant objected and the court denied the motion to amend on the grounds that it was filed too late. All parties moved for directed verdicts at the close of all of the evidence, and in that motion the plaintiff requested that a verdict be directed in favor of the plaintiff and the issue of damages only be submitted to the jury. All motions for directed verdicts were denied. In his motion for new trial the refusal of the trial court to direct a verdict and submit the issue to the jury on issue of damages is incorporated. In Kelly v. Fletcher-Merna Co-op Grain Co., 29 Ill.App.2d 419, 173 N.E.2d 855, our predecessors discussed an analogous situation and stated at p. 428:

“Plaintiff also contends that defendant waived its right to appeal by his failure to specifically raise the question of assumed risk in its post trial motion. We cannot agree. Defendant moved for a directed verdict at the close of plaintiff’s evidence and the close of all evidence and tendered appropriate instructions; it subsequently incorporated each motion in its post trial motion. By so doing, defendant preserved this vital question for the court on appeal.”

We are persuaded that this same view should and does apply here and that the issue of a remand for a trial on the question of damages alone is properly before us.

Plaintiff also complains of the giving of IPI Instruction No. 33.01, which states: “In fixing the amount of money which will reasonably and fairly compensate the plaintiff, you are to consider that an injured person must exercise ordinary care to obtain medical treatment, and that damages resulting from the failure to exercise such care cannot be recovered.” Objection to this instruction was predicated upon two propositions, that is, (1) that there is no evidence establishing the initial fact as to his negligence in securing medical attention and (2) that there is no evidence in the record separating damages resulting from any failure on his part to exercise due care in obtaining medical attention and the damages sustained from the particular injury. This court has had occasion to discuss this situation. In Shore v. Turman, 63 Ill.App.2d 315, 210 N.E.2d 232, we stated at p. 321: “* * * [T]he lifeblood of a legal theory is facts and if there are no facts supporting the theory, it is error to instruct on that theory”. This view was followed in Schomer v. Madigan, 120 Ill.App.2d 107, 255 N.E.2d 620. In the latter case, we considered an instruction which permitted the jury to consider whether or not the plaintiff did or did not avail herself of the use of seatbelts and the extent if any such fact had on the extent of her injury or damages. We stated in that case that there was no basis upon which damages resulting from her injury could be distinguished from damages resulting from the failure to use seatbelts. Such being the case, there as here the instruction is completely defused and should not have been given. There, as here, we cannot say that the instruction here given did not affect the jury’s verdict on the amount of damages. This is particularly true where the issue is the adequacy of the damage awarded by the jury, and the evidence is a complete vacuum as to the damages, if any, attributable to any failure to exercise due care in seeking medical aid.

The plaintiff submitted to an examination by an impartial medical expert pursuant to the provisions of Supreme Court Rule 215(d). (Ill. Rev. Stat. 1969, ch. 110A, par. 215.) The doctor filed his report as required by the rule and plaintiff called him as a witness. Plaintiff asked the court that he be allowed to show to the jury that the witness was testifying as an impartial medical expert and not as the plaintiff’s treating physician. The court refused to allow the plaintiff to give this information to the jury and refused to call the impartial medical examiner as a court’s witness. It is the plaintiff’s contention here that since he could not show this underlying background and the interest or lack of interest on the part of the impartial medical examiner, it was prejudicial to his case and this prejudice is reflected in the award made by the jury. It would ■unduly extend this opinion to discuss the divergent views throughout the United States as to whether or not this background should or should not be shown. Adequate references are in the comments to the rule above cited. In the present case it should be noted that the testimony of the doctor so called was essentially and fundamentally identical to the testimony of plaintiffs own doctor. Just how this background information of the doctor would either add to or detract from his opinion or add to or detract from the weight of his opinion is perhaps purely illusory. It is apparently the plaintiffs point of view that this information would in effect add much weight to the testimony of the doctor and thus be in effect a jury swaying finality on the weight of such testimony before that jury. This position is neither the theory nor the philosophy of the impartial medical examiner. The rule is primarily designed to aid in a pretrial settlement of the case and to provide as near as human agencies can an impartial diagnosis and prognosis of injuries. Medicine as well as law has its exponents as to cause and effect in given cases and experts can be honestly found on each side. In the case at bar, that examiner testified fundamentally and basically as did the plaintiffs treating physician. Under such circumstances, the trial court properly excluded the origin of the impartial medical examiner.

Accordingly, the judgment of the trial court in favor of the defendant Richards and against the plaintiff is affirmed. The judgment of the trial court on the issue of liability in favor of the plaintiff and against the defendant Reynolds is affirmed and this cause is remanded to the trial court for a new trial on the issue of damages only. While we are reluctant to reverse a case on an instruction issue alone, we cannot say that the amount of the verdict was not affected by permitting the jury to consider elements on that question without any evidentiary support. Such an instruction should not be given and it is error to do so.

Judgments affirmed and the cause remanded to the Circuit Court for a new trial on the issue of damages only.

TRAPP and SIMKINS, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. James Albert Kennedy, Defendant-Appellant.
    (No. 11853;
    Fourth District
    March 27, 1973.

      Roger W. Thompson, Public Defender, of Lincoln, for appellant.
    Gary L. Hinman, State’s Attorney, of Lincoln, (John A. Beyer, Assistant State’s Attorney, and Bruce Brown, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeal his conviction of robbery following a bench trial. Sentence of one to three years was imposed. The issue made upon appeal is that defendant was not guilty of robbery because the force was used after he had obtained possession of the money.

There is no issue concerning the facts. One Welch was alone as an attendant of a service station when defendant walked in in such manner as to indicate that he was drunk. While defendant was in the restroom, Welch took some coins from the safe, closing its door but not locking it, and went outside the office to put change into a vending machine. This chore takes between one to two minutes. Defendant stood in the door of the station and told Welch that a friend needed help with his car. Welch did not leave the station. When Welch finished his work at the vending machine, he reentered the office to find defendant kneeling in front of the safe with the door open. Defendant closed the safe door and walked into the adjoining garage. Welch opened the door, saw that rolls of coins were missing and immediately followed defendant into the garage portion of the building where he demanded the return of the money. Upon immediate repetition of the demand, defendant struck Welch with a soft drink bottle knocking him down and defendant escaped.

Ill. Rev. Stat. 1969, ch. 38, par. 18 — 1, defines robbery as the taking of property from the person or presence of another by the use of force, or threat of imminent use thereof.

Defendant argues that the money was taken out of the presence of Welch and “had to have occurred without Welch’s knowledge”, and that the taking was accomplished before the use of force. In substance, he contends that the use of force was to effect his escape rather than to obtain the loot. Defendant relies essentially upon People v. Jones, 290 Ill. 603, 125 N.E. 256 and People v. O’Connor, 310 Ill. 403, 141 N.E. 748. Such cases essentially consider robbery in terms of force in taking from the person. In O’Connor, the intoxicated victim was apparently struck by an automobile and as he lay in the street, his wallet was snatched from his pocket. The court there found the victim’s testimony incredible as to his hearing voices threatening to kill him. There was no other evidence of a forceful taking. In Jones, the intoxicated victim’s pocket was picked by one of those carrying him. As the victim sat on the ground, he accused defendant of taking his wallet, and thereupon was struck. There was no evidence that the victim was seeking to obtain or regain his wallet. The opinion in Jones did not refer to People v. Ryan, 239 Ill. 410, 88 N.E. 170 and People v. Campbell, 234 Ill. 391, 84 N.E. 1035, which described robbery in terms of a struggle of the owner to keep possession of the property, and the overcoming of the power of the owner to retain the property.

The statute in its present form embodies the offense as described in People v. Braverman, 340 Ill. 525, 173 N.E. 55. There the manager of a drug store was compelled to open the safe and then locked in a back room. Money was taken from the safe. Defendant contended that there was a failure to prove that the money was taken from the person by force. The court held, however, that it was not necessary that the property be in the immediate presence of the custodian. The court said:

“The requirement was that the property should be in the possession or under the control of the individual robbed in such a way or to such an extent that violence or putting in fear was the means used by the robber to take it.”

The issue in this case is controlled by People v. Chambliss, 69 Ill.App. 2d 459, 217 N.E.2d 422; People v. Brown, 76 Ill.App.2d 362, 222 N.E.2d 227, and People v. Heller, 131 Ill.App.2d 799, 267 N.E.2d 685. In Chambliss, the victim’s wallet was snatched from his rear pocket as he left the tavern. He started to pursue the defendant but an accomplice threw him to the ground so that his leg was broken. It was contended that there was no use of force to sustain a charge of robbery. The court cited Ryan and Campbell and noted the victim’s lawful right to recover the snatched wallet. In Brown, the victim was asleep and his wallet was filched. He awoke and was struck as he reached for his property. Again, it was contended that there was no robbery as force was used after defendant had obtained the wallet. That opinion concluded that the series of events instituted but a single incident making up the offense of robbery. The record is clear that force was used to complete the taking of the money from the possession and custody of its custodian, and was a means used to accomplish such taking. In People v. Heller, 131 Ill.App. 2d 799, 267 N.E.2d 685, it was concluded that while the taking may be without force, the offense is robbery if the departure with the property is accomplished by the use of force.

The judgment is affirmed.

Affirmed.

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


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    The People of the State of Illinois, Plaintiff-Appellee, v. Terry Lynn Reeves, Defendant-Appellant.
    (No. 11909;
    Fourth District
    March 27, 1973.
    Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (James R. Coryell, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant pleaded guilty to theft of property over $150, and in a negotiated plea probation was denied and the defendant sentenced from one to four years in the penitentiary. In this court, he states that the guilty plea admonitions by the court were not properly given because (1) he was not fully advised of the consequences and (2) there was an insufficient record on the factual basis for the plea. He likewise states as error that the court abused its discretion in refusing to admit the defendant to probation. The errors assigned are without substance in this record and the judgment of the trial court is accordingly affirmed.

The plea negotiated was that the defendant would ask for probation, then the People would concur in whatever recommendation the probation officer made and should that recommendation be a denial of probation and followed by the court, then the People would recommend a minimum sentence of one and a maximum sentence of four years. In response to a question by the court, the defendant himself stated that he was asking the court “to go along” with the negotiated bargain. That bargain was carried out.

As to the consequences of his plea, the court advised the defendant that in this crime the sentence was one to ten, “one” meaning the least that you could be sentenced for and “ten” years the longest that you could be sentenced for. When announcing the agreement between the parties as to the plea, the State’s attorney stated “* * * [W]e have agreed to recommend a minimum of one and a maximum of four years”. Defendant’s suggestion that the word “one” might mean one day or one month and therefore that the defendant was not fully advised of the consequences of his plea is not only grammatically an incorrect statement of what was said but is purely semantical sophistry entitled to neither merit nor weight.

As to the factual basis for the plea tire State’s attorney at the court’s request stated that the defendant exerted unauthorized control over a 1966 Chevrolet pickup track belonging to Robert Hays, bearing license plate No. 25872B and vehicle identification No. 246410259, that the truck was taken from behind the residence in the city of Decatur, Illinois, by the defendant and another individual, that the track failed to function and was abandoned by the defendant. The State’s attorney further stated: “We have in our possession a statement by him, written, and a report of an oral statement, both — in which both he admits to the allegations in the indictment”. Defense counsel said he had nothing to supplement the statement of facts. The court then stated that since the value of the truck was of importance in determining the crime, what would the evidence show its value to be. The State’s attorney stated that it was in excess of $150 in value and the defense counsel said, “Yes, Your Honor, I checked on that”. The court then asked the defendant: “* # # [A] re you personally asking the court to go along with the deal, this negotiation?” Defendant answered: “Yes, sir”. The court: “And Mr. Stone [defense counsel] is not forcing you in any way to accept this deal, right?” The defendant: “No, sir, he isn’t”. Once again it is perfectly clear from this record that there was a factual basis established for the plea as contemplated by Ill. Rev. Stat. 1971, ch. 110A, par. 402.

The probation officer recommended that probation be denied. Testimony was taken and the 74-year-old grandmother and a brother of the defendant testified. The brother was on probation for Grand Theft and had as a juvenile several felony convictions by his own testimony. The defendant was in his custody on parole from the Illinois Youth Commission and within two weeks had committed this particular crime. This witness testified that he hadn’t been strict enough on the defendant. The grandmother likewise had taken care of a couple of other boys and stated that since the defendant was 14 years old she had had difficulties with him. In 1966, he was placed with the grandmother. Three months later he violated his probation and was placed with a brother. About a year later, he violated this probation. About nine months later, he again was guilty of violation and was placed in juvenile detention for two weeks. He was placed with his sister and brother-in-law in Walnut Ridge, Arkansas, on three different occasions and returned to Illinois. In 1968, he was committed to the Illinois Youth Commission. Two months later, he was transferred to Ft. Massac, State Boys Camp in Metropolis. One month later, he ran away from camp and was returned to the Reception and Diagnostic Center in Joliet, Illinois. One month later, he was again paroled. Two months later he violated parole and was returned to the Reception Center. Nine days later, he was transferred to the Illinois Industrial School for Boys, Sheridan, Illinois. Later he was paroled. About a year and a half later, there was a violation of parole through car theft and he was returned to the Reception Center in Joliet. Six weeks later, he was transferred back to Illinois Industrial School for Boys. Six months later, he was paroled to his brother in Decatur and within two weeks had committed the present crime. In the face of this record, the expression by the grandmother and the brother, and by the defendant himself that he had learned his lesson is entitled to little weight. Previous supervision has failed and there is nothing in his conduct to support a belief that further probation would be successful. The trial court stated that under these facts and circumstances probation and supervision has proven worthless. This record supports that conclusion and certainly does not justify us in concluding that there was any abuse of discretion in denying probation.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Judgment affirmed.

TRAPP and SIMKINS, JJ., concur.


text:
    Oral Bethard, Petitioner-Appellant, v. Loyd Mink, Respondent-Appellee.
    (No. 11612;
    Fourth District
    April 2, 1973.
    John F. Adams, of Goehl & Adams, of Quincy, for appellant.
    Brice Irving, of Grigsby & Irving, of Pittsfield, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Upon hearing, the trial court found that petitioner had failed to prove that the ballots had been properly preserved and safeguarded and dismissed the petition to contest the election of County Treasurer. Petitioner appeals.

Petitioner sought a recount of the votes as shown by the ballots in three precincts known as Barry II, Kinderhook I and Pittsfield IV. Lightle, County Clerk, testified that on November 3, 1970, the night of the election, the ballots from the first precincts were brought to his office commencing at 9:00 P.M., that the ballots were being received all night and the final ballots were received about 8:00 A.M., November 4th. From time to time, usually after records from three precincts had accumulated, they were carried from the Clerk’s office on the first floor, to a room in the basement. Lightle had a heart condition and one Strothers helped him, the Clerk carrying part of the ballots and Strothers carrying part of them. He also testified that he carried the ballots part of the time, and Strothers carried the ballots part of the time.

The ballots were placed in an inner room for which there is a key, but which was unlocked until the last records were in on November 4th. The outer room is a room used by the Supervisor of Assessments. Also, on the basement floor is a men’s rest room, a Civil Defense room, a boiler room and a room used by the Treasurer. A person going to the rest room could open a door to the part of the basement in which the ballots were stored, the door to the men’s rest room being directly opposite the door to the room into which the ballots were being carried.

There were people coming into and going out of the courthouse all night. The Clerk estimated that between 200 and 300 people were in and out of his office during this election. The door to the inner room was locked after the last ballots were brought in, and the ballots were kept locked in there until November 14th, when there was a discovery proceeding.

At the time of the discovery proceeding the Clerk brought the ballots from eight precincts up from the basement, untied the bags and unwrapped the ballots. The seal used in addition to the string was scotch tape. After the discovery, the Clerk rewrapped, retied and resealed the ballots from these precincts. He stated that after they were retied one could not tell the difference in their appearance, and their appearance when delivered to him on election night.

After discovery proceedings, the ballots from the eight precincts and also from the other 27 precincts were taken to a vault in the County Clerk’s office on the first floor of the courthouse and were kept there until the trial. The key to this vault was delivered to the present Clerk by his predecessor. The vault door was unlocked during business hours because documentary stamps and other records are kept in the vault. All of the Clerk’s employees have access to the vault. Between the election and the time of the trial several offices in the courthouse were broken into, but the manner of entering had not been discovered. There is no evidence that the County Clerk’s office had been broken into. The Clerk found the door to his office unlocked, but he was satisfied the new janitor left it unlocked.

The Clerk testified that the bags containing the ballots gave no appearance of having been tampered with, that he has received no reports of tampering with the ballots, that there were no reports of anyone entering the room where the ballots were stored on the night of the election, and no reports of anyone disturbing the ballots while they were in the vault in the Clerk’s office after the discovery proceeding.

While the statute provides that the precinct judges of the election shall elect two judges (one from each of the major political parties) to return the ballots to the Clerk (Ill. Rev. Stat. 1969, ch. 46, par. 17 — 20), the ballots of two of the precincts sought to be recounted were not guarded in the manner provided by the statute. The ballots from Pittsfield precinct IV were delivered by Harold Hayden, a Republican Judge, who was alone at the time of the delivery about 8:00 A.M. November 4th. The ballots from precinct Barry II were delivered to the Clerk by Thorton Reeves, a Republican Judge, and Oral Bethard, the petitioner.

The trial judge, by stipulation of counsel, viewed the route which the Clerk and Strothers followed in carrying the ballots from the Clerk’s office to the storage place in the basement, the proximity of the rooms involved and their accessibility to the general public.

Counsel do not disagree upon the applicable rules. The returns of the judges are prima facie evidence of the result of an election but the ballots are original evidence, and if they have been preserved in the manner prescribed by statute, are better evidence of the result of the election. The Supreme Court, in Bullman v. Cooper, 362 Ill. 469, on 473, 200 N.E. 173, said:

“If it clearly appears that the ballots are in the same condition when offered on the hearing as when they were counted by the judges of election, the re-count made by the court must prevail, and any discrepancies in the votes certified will be attributed to the errors of the election officers. (Bolton v. Whalen, 350 Ill. 50). Conversely, if the evidence shows that the ballots were exposed to the reach of unauthorized persons, and the returns are not discredited, the ballots will not be regarded as better evidence of the result of the election. * *

The burden is upon the contestant to establish that the ballots are in the same condition as when counted by the judges, and that no actual evidence of tampering with the ballots is required if the ballots were actually exposed to the reach of unauthorized persons. Here, the ballots were not properly preserved in two of the three precincts in question in their transportation from the polling place to the Clerk’s office. Additionally, the complete exposure for unstated periods of time during the eleven hour interval between the receipt of the first and last ballots when hundreds of persons were in and out of the courthouse is clearly an exposure to the reach of unauthorized persons. The manner of sealing the bags was by no means foolproof, and the testimony was that it would take about five minutes to open a bag.

The test appears to be exposure to tampering rather than evidence of actual tampering. We find that the evidence supports the trial court’s finding of exposure to tampering.

The judgment of the trial court is affirmed.

Affirmed.

SMITH, P. J., and SIMKINS, J., concur.