author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Huggins, Defendant-Appellant.
    (No. 72-182;
    Third District
    May 14, 1973.
    James Geis, of Defender Project, of Ottawa, for appellant.
    Ronald E. Boyer, State’s Attorney, of Watseka, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Harold Huggins appeals from a judgment and sentence for robbery of 3 to 5 years and a sentence of 3 to 10 years for burglary, with sentences to run consecutively. The judgments and sentences followed the entry of a plea of guilty to a charge of robbery and burglary. A confederate in the crime, George Dewey Gavin, was sentenced to terms of 1 to 3 years for robbery and 1 to 3 years for burglary, with sentences to run concurrently. On appeal in this court, defendant contends j that the court failed to comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, §402) before accepting defendant’s guilty plea, and, j also, that the sentence imposed on defendant was excessive and should be reduced.

It is principally contended that the trial court advised defendant as to the sentence for burglary that “a person convicted of burglary shall be imprisoned in the penitentiary for an indeterminate term of not less than one year.” It is contended that this is not an adequate admonition even though it is expressed in the words of the statute. It was indicated in the Illinois Supreme Court case of People v. Terry, 44 Ill.2d 38, that such an admonition in that case was inadequate. Although we do not believe the rule is a desirable one, this court also concluded in People v. Short, 4 Ill.App.3d 849, 281 N.E,2d 785, that such admonition is inadequate. In neither opinion was the trial court advised as to what should be said with respect to the maximum term, since any number of years could be selected in fixing a sentence, and only the minimum was specifically decreed by statute. We have assumed that the trial court in a case of this type (in the interest of not misleading a defendant into thinking he would receive the minimum sentence or some similar sentence relating to the minimum of one year) could advise defendant that he could be sentenced to a maximum number of years, "such as 10 years or 15 years” or some other number of years as a maximum, which would at least be equal to the maximum actually imposed by the court in the case. If such language was used, there could hardly be a contention that a defendant was misled as to the potential maximum by the recital of the very low minimum which might be involved.

While we are dubious as to the actual misleading character of the admonition in the present case, and believe that in most situations an admonition referring to the sentence in terms of the statutory language should be sufficient, we feel compelled, as a result of People v. Short, 4 Ill.App.3d 849, and People v. Terry, 44 Ill.2d 38, to conclude that such admonition, without specifying any potential maximum, might be misleading and, therefore, not in compliance with Supreme Court Rule 402.

As a consequence, therefore, we conclude that in the instant case, defendant should be permitted to withdraw his plea of guilty, the sentence should be vacated and this cause should be reversed and remanded to the circuit court of Iroquois county with directions to vacate the sentence and judgment imposed as to defendant and to permit defendant to withdraw his plea of guilty and for further proceedings in such court.

This cause will, therefore, be reversed and remanded to the circuit court of Iroquois County as indicated in this opinion.

Reversed and remanded with directions.

STOUDER and DIXON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER Mr. PRESIDING JUSTICE ALLOY

license: Public Domain

text:
    George J. Moniot, Exr. of the Last Will and Testament of George A. Moniot, Deceased, Plaintiff-Appellee, v. The Property Tax Appeal Board et al., Defendants-Appellants.
    (No. 72-244;
    Third District
    May 14, 1973.
    ALLOY, P. J., dissenting.
    William J. Scott, Attorney General, of Chicago, (Bonny Barezky, Assistant Attorney General, of counsel,) for appellants.
    John Berry, of Streator, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, George J. Moniot, Administrator of the estate of George A. Moniot, brought this action in the Circuit Court of La Salle County seeking to vacate a personal property tax assessment of the Board of Review of La Salle County as affirmed by the Property Tax Appeal Board. The trial court decided the issues in favor of the plaintiff in a proceeding brought by the plaintiff under the Administrative Review Act (Ill. Rev. Stat., ch. 110, sec. 264 et seq.).

On August 4, 1969, the Board of Review of La Salle County, Illinois sent a notice to George J. Moniot, Executor of the Estate of George A. Moniot, deceased, that the Board of Review had under consideration, of its own motion, the matter of revising the personal property tax assessment for the year 1969 which held that the estimated Federal Estate Tax shown as a deduction in computing the net credits should not be allowed. No issue relating to this part of the decision of the Board of Review is presented on this appeal because the decision of the trial court made consideration of the propriety of such decision unnecessary.

The Board of Review also assessed a personal property tax with respect to the intangible personal property of the Moniot estate. Subsequently Moniot sought review of the Board of Review’s decision by the State of Illinois Property Tax Appeal Board pursuant to Ill. Rev. Stat. 1969, ch. 120, par. 592.1. A hearing was held by the Property Tax Appeal Board at which evidence was presented in support of and in opposition to the decision of the Board of Review. The Property Tax Appeal Board affirmed the personal property tax assessment and review of the order was sought in the Circuit Court of La Salle County.

Before the La Salle County Board of Review, before the Property Tax Appeal Board and before the Circuit Court of La Salle County, the plaintiff argued that the personal property tax assessment on intangible personal property was a violation of article 9, section 1 of the Illinois Constitution of 1870 and of the 14th Amendment to the Federal Constitution. The order of the circuit court invalidated the assessment of the personal property tax on the intangible personal property of the estate on the grounds that the assessment was unconstitutional and void as discriminatory. Specifically the court held the assessment was in violation of article 9, section 1 of the Constitution of the State of Illinois of 1870 j and Amendment 14 of the Constitution of the United States.

Plaintiff based his constitutional objection to the personal property tax assessment on intangible personal property on his claim that such a tax was assessed only against the estates of deceased persons and not against living persons owning intangible personal property.

Article 9, section 1 of the Constitution of 1870 provides:

“The general assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property — such value to be ascertained by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not otherwise * *

The implementing statute regarding property taxes is Ill. Rev. Stat. 1969, ch. 120, par. 499, which provides in relevant part:

“Property subject to taxation
The property named in this section shall be assessed and taxed except so much thereof as may be, in this act, exempted:
First: All real and personal property in this state.
Second: All moneys, credits, bonds or stocks and other investments, the shares of stock of incorporated companies and association # # »»

There has been some discussion in the briefs of the parties relating to whether or not the trial court has declared a statute of the State unconstitutional. We believe it is unnecessary to discuss this issue since it seems to us beyond a doubt that no part of any statute was held unconstitutional by the trial court. Rather the trial court held that the manner in which the statute was applied was unconstitutionally discriminatory.

On this appeal the appellant argues that the assessment in question was not unconstitutional arguing generally that the failure to assess some property is not a proper cause for invalidating assessments of other property. The appellee in support of the judgment of the trial court, argues that where there is gross discrimination in the assessment of personal property taxes such discrimination constitutes constructive fraud violative of the constitutional requirements of uniformity.

Before discussing the application constitutional principles it will be necessary to summarize the evidence in order to understand the basis of the trial court’s order.

The Board of Review of La Salle County, after giving notice and holding a hearing, made a personal property assessment against the estate of George A. Moniot, deceased, in the amount of $39,620.00 by order entered November 5, 1969. Such property consisted of bank accounts and cash. Such intangible personal property was valued at 55% of its full value, the level at which other personal property was assessed.

The only witnesses testifying before the Property Tax Appeal Board were called by appellee and they were Dale McConville, Supervisor of Tax Assessments for La Salle County and also the Clerk of the La Salle County Board of Review; James Hunter, Deputy County Clerk of La Salle County and Stanley Twait, Chairman of the Board of Review of LaSalle County. The first named witness described the methods of assessing personal property tax in La Salle .County and also furnished a statistical analysis of personal property returns for 1969. The second witness testified concerning records in his office relating to bank deposits and the third witness testified concerning a particular return which he had filed.

The practice of assessing personal property in La Salle County in the year 1969 was for the various township assessors to deliver personal property tax forms to taxpayers throughout the township. The assessor then follows the matter up and retrieves the filled in tax schedules from the taxpayer. Approximately 60,000 personal property tax returns were filed in La Salle County for 1969. No intangible personal property consisting of money, bank accounts, building and loan accounts and credits were included on any of these 60,000 tax returns, except on four returns of individuals and nine returns of corporations. The four individual returns were for $10,000.00, $1300.00, $1300.00 and $800.00 respectively. Each was listed as monies and credits. The $10,000.00 return was actually a conservatorship estate of which Stanley Twait, a member of the Board of Supervisors, and Chairman of the Board of Review at the time of this hearing, was the conservator. Nine tax returns filed by corporations listed intangible personal property consisting of monies and credits totaling $9970.00. The total assessment of intangible personal property of individuals and corporations, other than estates, for the year 1969 was $23,770.00 and was based on personal property schedules filed by thirteen taxpayers (four individuals and nine corporations).

The total personal property assessment for LaSalle County for 1969 was $144,408,320.00.

It is the practice of the Board of Review of La Salle County followed in 1969 to call in all personal representatives of estates being administered in La Salle County where the bond filed is over $5,000.00. Normally no schedule has been filed by any of these personal representatives before they are called in by the Board of Review. The Board of Review goes over the assets of the estate with the attorney or the personal representative and makes an assessment based on the intangible personal property in the estate consisting of bank accounts, building and loan accounts and other debts that would be or may be due to the decedent.

In the year 1969, 304 personal representatives of estates were called before the Board of Review in this manner. As a result of these hearings personal property tax assessments were made against estates of decedents in the year 1969 in the amount of $1,747,580.00. These assessments made against estates of decedents were all based on intangible personal property. Tangible personal properties were not included in making the assessment since tangible personal property was ordinarily included in returns secured by local assessors.

In the year 1969 there were a total of twenty-one banks in La SaUe County, and the total bank accounts were in the amount of $201,678,-888.00. The various banks periodicaUy file statements showing their total deposits in the Office of the County Clerk in order to qualify to receive county monies. The Supervisor of Assessments of La SaUe County was aware of the fact that large amounts of money were on deposit in banks in La Salle County. No attempt was made by the Board of Review to make assessments against owners of intangible property other than estates of decedents.

In insisting the action of the Board of Review in assessing intangible personal property of estates was merely the assessment of omitted property and unaffected by the omission of similar property from like assessments the appellant has called our attention to and relies solely on three cases, Merritt v. Farriss (1859), 22 Ill. 303, Dunham v. City of Chicago (1870), 55 Ill. 357, and People v. Missouri Pacific R.R. Co. (1922), 301 Ill. 541, 134 N.E. 314. Such cases do support the rule that omissions or undervaluations of other property which are merely negligent, inadvertent or a mistake do not and should not invalidate a tax levy or the assessment of property otherwise properly subject to the tax. The language of these cases although beyond the facts described, indicate that an assessment will be unaffected by the corrupt act of a public official regarding other property. The Missouri Pacific case quotes with approval from the two earlier cases and applied the rule where six sections were not included in a school district levy because the sections had been detached from the school district. Such detachment was later determined to be invalid. Thus the non-assessment of the six sections was the result of the mistaken belief that the sections were no longer in the district. However the court in the Missouri Pacific case made observations which presage the direction of decisions affecting problems analogous to the one in the case at bar when it observed.

“Experience teaches us that it is impossible to have the tax laws executed so as to prevent any inequality and injustice, and, where these results have been produced by favoritism or fraud or intentional misconduct, the courts have always granted relief.”

After discussing several cases which afforded relief from the arbitrary result of tax assessments the court in People ex rel. McDonough County Collector v. Schmuhl (1935), 359 Ill. 446, 194 N.E. 731, concluded that where similar property is generally assessed at the level of 37% of its full value, the assessment of property at 100% of its full value constituted an arbitrary intentional violation of the rule of uniformity and a violation of constitutional rights. To the same effect is People v. Commonwealth Edison Co. (1941), 376 Ill. 70, 32 N.E.2d 902, where the court held that the failure of the taxing authority to apply the same rules for depreciation as applied to the property of other corporations was a constitutional violation of the right to have taxes assessed uniformly.

This brings us to the landmark cases of People ex rel. Kohorst v. Gulf Mobile and Ohio R.R. Co. (1961), 22 Ill.2d 104,174 N.E.2d 182, and People ex rel. Hillison v. Chicago Burlington and Quincy R.R. Co. (1961), 22 Ill.2d 88, 174 N.E.2d 175, wherein the court held that the assessment of railroad property at 100% of its full value while other property in the county was assessed at levels of 55% or less constituted such a gross discrimination between the property of tax payers that it could only be considered constructive fraud violative of constitutional rights. The railroad tax cases as well as the earlier cases cited have a common theme. Without charging or accusing individual officers, boards or departments with actual fraud or intentional wrongdoing, general policies which create substantial disparity between similar properties or classes of tax payers are violative of the principle of uniformity. In other words arbitrary discrimination which could not meet the constitutional mandate if incorporated in a statute is no less reprehensible when systematically established by practice, procedure or policy.

Appellant’s only response to the forgoing cases requiring uniformity in the assessment of taxes is to claim that the evidence does not show that the Board of Review knew of individuals other than estates who omitted intangible personal property from their tax assessment schedules. While we do not argue that such an inference may be properly drawn from the evidence such a contention is no refutation of the inescapable conclusions to be drawn from the evidence concerning the policies of the Board of Review. The only possible conclusion that can be drawn from the evidence is that the LaSalle County Board of Review and the taxing officials subject to its jurisdiction had a deliberate and intentional policy of excluding intangible personal property of living persons from taxation and that the same deliberate and intentional policy required taxation of such intangible personal property belonging to estates administered in the county. It is equally clear that if the policies of the La Salle County Board of Review had been incorporated into a statute such discrimination could not stand and in our view the gross discrimination which has resulted from policies not sanctioned by statute are equally violative of article 9, section 1 of the Constitution of 1870 and can not stand.

For the foregoing reasons the judgment of the Circuit Court of La Salle County is affirmed.

Judgment affirmed.

SCOTT, J., concurs.

Mr. PRESIDING JUSTICE ALLOY

dissenting:

I do not agree with the conclusion in the majority opinion that the assessment in the instant case is unconstitutional. It is clear that the Act (Ill. Rev. Stat. 1969, ch. 120, par. 499) itself was not determined to be unconstitutional as indicated in the course of the majority opinion. Also, as indicated in the majority opinion, the evidence in this case does not show that the Board of Review knew of individuals other than estates who omitted intangible personal property from the tax assessment schedules. There is no evidence of discrimination against other persons similarly situated since estates have been uniformly assessed pursuant to procedure outlined in section 589(3). (Ill. Rev. Stat. 1969, ch. 120 § 589(3).) I do not believe that the majority opinion is sustained by the record in the conclusion that the evidence established that the La Salle County Board of Review had a deliberate and intentional policy which showed favoritism, fraud or intentional misconduct. It could be concluded from the record that personal property which is inventoried in estates was clearly available for the local assessor and that a consequent assessment under the Act was made. Nothing similar could be said about living persons or corporations since the record showed that while a total of all deposits in La Salle County was available, there was no fist of individual owners or accounts or the respective amounts which might be taxable. Although a theoretical knowledge may have existed that there were such funds, the Attorney General points out that the La Salle County Board of Review lacked specific information on the ownership of any such funds. This observation is sustained by the record. So far as the record is concerned it appears that where detailed information of the existence of intangible personal property, such as in estates, was available, the Board of Review did not fail to assess such intangible personal property of any person, corporation or estate.

It was directed to our attention on review that the lack of specific knowledge as to other persons and corporations owning intangible personal property created a regrettable situation perhaps where individuals and corporations were apparently able to violate the law without penalty. It was pointed out that this problem was met in the current Illinois Constitution of 1970, in which it is provided that the General Assembly abolish all ad valorem personal property taxes. 1970 Illinois Constitution, Art. IX, § 5(c).

It has been the policy of this State to sustain enactments relating to assessment of property even though the assessing officers have been derelict in making assessments or otherwise operated improperly. (Merritt v. Farriss, 22 Ill. 303, 311-312.) It is pointed out that the officers may be made amenable to the law for misconduct in office but that the assessments if properly made are nevertheless valid, even if other assessments had been improper. (Merritt v. Farriss, 22 Ill. 303; Dunham v. City of Chicago, 55 Ill. 357.) It is clear, therefore, that unless there is a clear discriminatory assessment as against taxpayers, particularly those similarly situated, the circumstance that some other taxpayer may not be assessed at all or not properly assessed, does not relieve an objecting taxpayer of his obligation. Nowhere in the decisions rendered in this State has there been announced a conclusion that a failure to assess certain categories of property not specifically directed to the attention of the assessor, could result in relieving a properly assessed taxpayer of his obligation, for constitutional reasons, as contended in the majority opinion. As a consequence, I do not believe that the judgment of the trial court was proper. As a matter of fact, I believe that the record requires reversal in this cause, and that any other conclusion could lead to serious unanticipated consequences extending far beyond the particular issue involved in the cause before us.

For the reasons stated, I conclude that the judgment of the circuit court of La Salle County should be reversed.


author: Mr. JUSTICE JONES

text:
    William H. Wegener, Plaintiff-Appellant, v. William Anna, Defendant-Appellee.
    (No. 72-169;
    Fifth District
    May 10, 1973.

      Lindauer, Nieman & Lindauer, of Belleville, for appellant.
    Ray Freeark, of Freeark, Gunn and Harvey, of Belleville, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff appeals from the entry of summary judgment in favor of the defendant.

Plaintiff alleges in his complaint that an automobile driven by defendant struck and injured him when he was crossing South Illinois Street in Belleville, Illinois. South Illinois Street is a two-way street which intersects with Washington Street, a one-way street on which traffic travels east. At this particular intersection, no traffic lights faced the plaintiff who was crossing the north-south street going in a westerly direction. As he stood on the curb a car proceeding south on the north and south street stopped at the intersection. In a deposition the plaintiff stated “That appeared to me as though the time to walk.” Plaintiff did not know what the light was, either for pedestrians or automobiles, going in an easterly or westerly direction when he started across. As plaintiff was walking across the street, looking straight ahead, he was struck by a car which he did not see before the impact. The car was proceeding through the intersection going north. There was no evidence before the court on the summary judgment as to whether the plaintiff looked for approaching traffic previous to crossing the highway.

The trial court entered summary judgment in favor of the defendant and against the plaintiff on the basis that the plaintiff was not, as a matter of law, in the exercise of ordinary care.

The plaintiff argues strenuously that there existed a question of fact, and the defendant contends that the evidence before the trial court from the plaintiff’s deposition constituted admissions of contributory negligence as a matter of law.

This is a very close question. As a general proposition, the regulation of traffic by stop and go lights and violations of the regulation of traffic by stop and go lights are statutory matters. The violation of a statute is only a prima facie evidence of negligence, and most of these considerations are matters for determination by the trier of fact. The statute establishing the summary judgment procedure is section 57 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, sec. 57). This statute provides, in part, * * The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” The questions presented here arise •from an extract of the plaintiff’s discovery deposition which was set forth in the motion for summary judgment. The quotations contained in this extract are referred to by the defendant as admissions and in his summary judgment motion defendant says “* # * said admissions constitute contributory negligence on the part of the plaintiff as a matter of law, and would bar his recovery even if the defendant was negligent at the time of the occurrence, a fact which is denied.” There is no question that the answers given by the plaintiff are admissions against his interest. No counter affidavits were filed by the plaintiff. The plaintiff in his complaint has alleged his freedom from contributory negligence and the defendant has denied it.

The motion for summary judgment in this instance raises the question whether the admissions made by the plaintiff show that there is no genuine issue of material fact and that the plaintiff is guilty of contributory negligence as a matter of law.

We are well aware that we have frequently said that contributory negligence is ordinarily a question of fact for the jmy and that it may be, under particular evidence, a matter of law. Since the plaintiff has a constitutional right of trial by jury, summary judgment is not available to the court as a matter of notion or discretion.

From the quotations from plaintiff’s deposition contained in the motion for summary judgment, there are several matters, germane to the issue, which are not covered. We do not know what, if anything, the plaintiff did with respect to maintaining a lookout before he was walking across; we only know that he was looking straight ahead as he walked across. We do not know, nor did the plaintiff, whether the traffic lights were in his favor or against him. The plaintiff did not know what hit him, and therefore we do not know if he was struck by the defendant, where the defendant came from, etc. Presumably, much of this information would be adduced on the trial.

The admissions of the plaintiff occurred during a discovery deposition. There is no burden on the party giving a discovery deposition to produce all the evidence he may have. We do not find any inferences from the evidence included which preclude the question of negligence on lookout or answer as a matter of law the element of a proximate cause of the plaintiff’s injuries. Neither do we commend the plaintiff’s conduct, nor find that his conduct under all the facts (not now known to us) is or is not a question for the jury.

We cannot construct a rule for summary judgments which wifi apply in all cases or at all times. It appears to us that, based upon these fragments of evidence, the trial court did not have before it sufficient information in order to permit the determination that there was no genuine issue as to any material fact or that the defendant was entitled to judgment as a matter of law. On facts consistent with the evidence before the court, it is possible that the plaintiff was crossing with the light, and while his lookout could be improved upon, he might have been struck by the defendant who was proceeding against the light, so that a proximate cause of plaintiff’s injury might have been the conduct of the defendant rather than the plaintiff’s misconduct as a matter of law. We observe in considering the cases which have been decided on this point that the courts have considered the simplicity or complexity of the issues involved. Here the plaintiff’s exercise of care involves many components. In this circumstance, we consider that we are in the position of the blind men of old, each of whom touched only part of the elephant. We believe that there is a triable issue of fact which remains for the trier of fact. It may be that when all of the evidence is in, the conclusion will be one of law, but at this point, the court has only a portion of the issue.

As was said in Di Leo v. U.S. Fidelity & Guaranty Co., 50 Ill.App.2d 183, 200 N.E.2d 405, ‘We believe the determinative question here presented is whether there is a ‘triable issue of fact.’ In a summary judgment proceeding, the. right of the moving party should be free from doubt. If, upon an examination of the pleadings, depositions, and affidavits, it can be fairly said that a material dispute exists as to the facts, a motion for summary judgment should be denied. On the other hand, where the record shows there is no triable issue of fact, a summary judgment will be granted.” In the case involved, we do not find the right of the moving party to be free from doubt. Where such doubt exists, the wiser judicial policy in the present state of the law is to permit the resolution of the dispute by trial rather than by summary judgment.

We do not wish to be understood to rule that in each case there must be a statement that there is no other evidence available in order to permit summary judgment. Each case will have its own merits and facts; here the evidence is incomplete and undeveloped on the point of contributory negligence.

Under our conclusion, we find that the trial court erred in allowing summary judgment. The cause is therefore reversed and remanded to the trial court with instructions to deny the motion for summary judgment and take further steps in accordance with the law.

Judgment reversed and remanded.

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


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rudolph Louis Kessler, Defendant-Appellant.
    (No. 72-39;
    Second District
    May 15, 1973.

      Paul Bradley, of Defender Project, of Elgin, for appellant.

      Philip G. Reinhard, State’s Attorney, of Rockford, (James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Rudolph Louis Kessler, the defendant, was convicted of one count of burglary and two counts of attempt murder after a jury trial. He appeals from the convictions and the concurrent sentences imposed of 2-5 years for burglary and 5-15 on each count of the attempt murder. He claims that the counts of the information charging attempt failed to charge an offense; that he was not proven guilty beyond a reasonable doubt either of burglary or of the attempts; and that trial errors deprived him of a fair trial.

From our review of the record, we first conclude that the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt of burglary, charged on accountability principles as defined in Ill. Rev. Stat. 1971, ch. 38, sec. 5—2(c).

Abney and Mass were the actual perpetrators of the burglary in the course of which the proprietor, Louis Gotti, who came upon them in the building, was shot. Abney and Mass were discovered in the Anchor Tap in Rockford about 1:30 A.M. on March 6, 1971. Mass wounded Gotti in the neck. Mass and Abney then fled and were observed in a 1962 white Chevrolet by a state trooper, Max L. Clevenger, who answered a report of the incident. After a high speed chase, Mass and Abney stopped their car and ran toward a corn field. Clevenger chased them and one of the individuals fired at him several times before being captured. The defendant Kessler then was found in the front seat of the white Chevrolet where he had remained when Abney and Mass ran from the car.

At the scene, tire defendant stated to the officers that he was a hitchhiker and did not know what was going on. However, later defendant gave a voluntary statement which was introduced into evidence, in which he acknowledged that he was not a hitchhiker. He stated that he had been in Chicago the day prior to the burglary to see Mass and was then introduced by Mass to Abney; that he heard Mass ask a third person about getting a pistol, and the response that the individual could not get a pistol but would deliver a sawed-off shotgun to them that evening. Defendant stated that later in the day Mass said he needed a screwdriver and the three of them went to Sears where Mass purchased a small screwdriver and Abney “shoplifted” a larger one. Defendant stated that he heard Mass and Abney discuss disposing of stolen merchandise. He also heard Mass say that he needed $1800 to pay for his car. Defendant said that he told Mass that he once worked at the Anchor Tap in Rockford and had seen the receipts but that they “wouldn’t get $1800 there.”

The three left Chicago at 8:00 P.M., according to defendant’s statement, and arrived in Rockford at approximately 10:30 P.M. After visiting several taverns, Mass said he wanted to go to the Anchor Tap and defendant directed him there. Mass and Abney went inside and had a drink but defendant stayed outside. The three later went to another tavern and returned to the Anchor Tap just after closing. They parked the car and Mass and Abney went around to the back of the building. Defendant stated that he remained in the front seat of the car and that shortly thereafter Mass and Abney jumped back in the car and raced away. Defendant said that he asked to be let out of the car and was refused.

Cotti testified that he had noticed the white Chevrolet when he passed the tavern after closing and that he let himself and another individual into the tavern through the rear door, discovering Mass and Abney behind the bar. He was then shot and wounded. Although he passed within 15 or 20 feet of the Chevrolet before he went in he did not observe any individual in the car when he looked toward the automobile. He at no time saw defendant in or around the building. He testified that the gun used in the shooting was his own gun taken in the tavern.

Defendant, who did not testify, claims that the evidence fails to contradict his statement that he was not connected with the activities of Mass and Abney and that therefore the State did not prove accountability beyond a reasonable doubt. However, there was evidence from which the jury could reasonably conclude that Mass, Abney and the defendant had agreed to the burglary of the Anchor Tap and that the defendant had assisted in the burglary, even though there was no direct evidence that he acted as a lookout. He was therefore responsible for the acts in furtherance of the plan by Mass and Abney and it was not necessary to prove that Kessler himself had the intent to enter the building. See People v. Nowak (1970), 45 Ill.2d 158, 168; People v. Rybka (1959), 16 Ill.2d 394, 405; People v. Brendeland (1957), 10 Ill.2d 469, 471, 472.

The appeal from the convictions under the two counts of attempt murder presents a different, and we think, a more difficult question. Mass, who did the shooting, clearly had the specific intention to commit the attempt murders. Abney who was inside the tavern with Mass could possibly also have been shown to have shared an intent to kill by aiding and abetting Mass. However, on this record there is no proof of conduct by the defendant Kessler which the jury could consider in connection with other circumstances to reach the conclusion that he assented to the commission of the crimes of attempt murder or was aiding and abetting them. The information under which the defendant was charged alleged that each of the attempts were “with intent to commit the offense of murder * 6 However, consistent with the evidence the entire theory of the State has been that the intent which Mass and Abney possessed must be implied to be the intent of Kessler, presumably since there was no proof that Kessler had such specific intent.

Since defendant Kessler could not be hable under the “felony-murder” doctrine, which we have held does not extend to attempts (see People v. Farnsworth (1973), 10 Ill.App.3d 844, People v. Davis (1972), 6 Ill.App.3d 622, 627-628; see also 1 Wharton, Criminal Law and Procedure (12th ed. 1957), sec. 73, Attempt, pp. 155-6.), the question before us is whether Kessler can be found guilty on accountability principles without proof of his specific intent to commit the attempt murders perpetrated by Mass and Abney.

Section 5—2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5—2) pertinently provides:

“Sec. 5 — 2. A person is legally accountable for the conduct of another when:
* # #
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * *

Under the plain language of the statute, one cannot be held accountable unless found to have the specific intent to commit or aid in the commission of the substantive crime for which he is being held accountable. See Smith-Hurd Annotated, ch. 38, sec. 5—2, Committee Comments; People v. Tillman (1971), 130 Ill.App.2d 743, 750; People v. Brumbeloe (1968), 97 Ill.App.2d 370, 375; People v. Ramirez (1968), 93 Ill.App.2d 404, 410-411.

The Committee Comments and the cited cases address themselves to a question of accountability for a single crime on the part of an alleged accomplice; whereas here we have determined that defendant was accountable for one crime (burglary) and the precise issue then becomes one of determining defendant’s accountability for further crimes (two attempted murders) committed completely outside of defendant’s presence and with no evidence of defendant’s participation or intent to participate in them. Our analysis of the provisions of the Criminal Code requires the conclusion that except in felony-murder cases, the Code does not impose liability on accountability principles for all consequences and further crimes which could flow from participation in the initial criminal venture, absent a specific intent by the accomplice being held accountable to commit, or aid and abet the commission of, such further crimes.

The Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 1—1 et seq.) by its terms is to be construed to “define adequately the act and mental state which constitute each offense, and limit the condemnation of conduct as criminal when it is without fault.” (Par. 1 — 2(b).) The only mental state adequately defined under section 5 — 2(c) and consistent with limiting criminality where it is without fault is that mental state requiring a specific intent to aid the crime for which the person is being held accountable. Section 4 — 9 of the Code excuses proof of a particular mental state described in the Code only if “* * * the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described”. We are unable to find clear evidence of such legislative purpose.

Criminal statutes are to be construed strictly in favor of the accused and nothing is to be taken by intendment or implication against the accused beyond the obvious or literal meaning of such statutes. (People v. Eagle Food Centers, Inc. (1964), 31 Ill.2d 535, 539.) We also bear in mind that section 1 — 3 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 1—3) provides that no conduct constitutes an offense “unless it is described as an offense in this Code or in another statute of this State" * * so that the Code abolishes common law and extra-code principles of accountability. See, e.g., Committee Comments to section 8 — 1, Solicitation, which was, prior to the Code, only a common law offense.

In this case the State has asked that we impute or imply to Kessler the acts of his co-burglars in the attempted murders and their intent to commit them. The State cites People v. Chavis, (1967), 79 Ill.App.2d 10; People v. Novak (1967), 84 Ill.App.2d 276, and relies on the oft-quoted principle that where defendants have a common design to do an. unlawful act, then whatever act any one of them does in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed. The application of this principle is appropriate only where justified by the Code’s statutory language, such as in cases involving felony-murder, where intent to murder need not be shown (e.g., People v. Armstrong (1969), 41 Ill.2d 390; People v. Nowak (1970), 45 Ill.2d 158); in cases where the acts imputed are those which constitute the original crime contemplated by the common design (e.g., People v. Littleton (1969), 113 Ill.App.2d 185; People v. Bristow (1972), 8 Ill.App.3d 805, 810; People v. Harris (1971), 132 Ill.App.2d 801); and in cases involving two related crimes where defendant aided and shared an intent that both be committed. (E.g., People v. Cole (1964), 30 Ill.2d 375; People v. Gant (1970), 121 Ill.App.2d 222; People v. Williams (1968), 104 IIl.App.2d 329.) The application of the “common design” principle is not justified by the language of section 5 — 2 to hold a defendant accountable for crimes committed by an accomphce which the defendant was not shown to have intended. Imputed or implied intent is clearly outside the contemplation of the statute on accountability in the factual situation before us.

Other provisions of the Code also fortify this conclusion. For example, conspiracy (Ill. Rev. Stat. 1971, ch. 38, par. 8—2) has elements similar to accountability to assess responsibility to co-conspirators. (See Pinkerton v. United States (1964), 328 U.S. 640, 647-8.) In construing and explaining liability under the conspiracy statute, the Committee Comments include the language that the agreement of the aHeged co-conspirators must be accomplished with “intent that the offense which is the object of the agreement be committed". (Emphasis added.) It should also be noted that only in very special circumstances and by express provision does the Code impose liabifity for unlawful conduct without requiring a specific intent. E.g., Ill. Rev. Stat. 1971, ch. 38, par. 9—1(a)(3) (felony-murder, which does not include attempts); Ill. Rev. Stat. 1971, ch. 38, par. 9—3 (reckless homicide, which usually involves an intentional violation of another law such as driving while intoxicated); Ill. Rev. Stat. 1971, ch. 38, par. 11—5 (contributing to the sexual delinquency of a child).

Under the Criminal Code the defendant Kessler was not proved guilty beyond a reasonable doubt of the attempt murder charges and the convictions of attempt murders are reversed.

In the view we have taken we do not reach the sufficiency of the indictment nor the question raised by the defendant that the instructions which permitted the jury to find the defendant guilty of attempt murder absent a finding of specific intent to kill constituted reversible error.

Defendant has also complained that the court improperly denied his motion to require police officers to be made available to discuss the case with him and that this constituted prejudicial error. While there was testimony that there was an unwritten policy of the police department that no officer discuss a pending criminal case with anyone but a superior officer or States Attorney, it is clear from the record that the question whether the individual policeman would discuss a case with defense counsel was left to his discretion. The record reveals that defense counsel was given a reasonable opportunity to see the police witnesses and that the department was willing to accommodate him in arranging to see them. No prejudice appears from the record. See People v. Glover (1971), 49 Ill.2d 78, 83.

While Supreme Court Rule 415(a) (Ill. Rev. Stat. 1971, ch. 110A, sec. 415(a)) was not in effect at the time of the trial, it would not have compelled a different result since there is no evidence that the officers were advised not to discuss the case with opposing counsel or to otherwise impede his investigation of the case.

Defendant finally argues that he was denied a fair trial because the prosecutor in closing argument over objection gave erroneous examples of the law of accountability. The objection made by defendant at trial was not to the explanation of the law of accountability, referred to by the prosecutor, but to the fact that he was giving examples. In the context of the argument we do not find that this raises a substantial issue of reversible error.

While the case was under advisement the defendant filed a motion for summary modification of sentence. Since the judgments of conviction under the attempt murder charges are reversed, we need consider only the burglary conviction. It is now classified as a class 2 felony (Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 19— 1 (b)), providing for a maximum of 20 years and a minimum of 1 year, unless the court sets a higher minimum under the terms of the Code, limited to one-third of the maximum term. The minimum term of 2 years here is not permitted now when the maximum has been set at 5 years by the court below. Under the circumstances, we modify the burglary sentence, and as modified the minimum sentence shall be not less than 1 year and 8 months and the maximum not more than 5 years. As modified, the conviction for burglary is affirmed and the cause remanded with directions to issue an amended mittimus in compliance with the Code.

Affirmed in part as modified, and remanded for issuance of amended mittimus; reversed in part.

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

       In Farnsworth, we recently noted the incongruity of the Code provisions which may result in a finding of guilt of murder on felony-murder principles under Ill. Rev. Stat. 1971, ch. 38, sec. 9—1(a)(3), without proof of specific intent, if the victim dies; and yet if the victim lives, result in a finding that the perpetrator could not be found guilty of attempt murder without proof of specific intent.

       Intent as used in the accountability statute, is defined in section 4 — 4. It is limited to a conscious objective or purpose to accomplish the desired result. This intent must be found by the trier of facts and cannot be implied as a matter of law. People v. Uselding (1969), 107 Ill.App.2d 305, 309; People v. Lloyd (1922), 304 Ill. 23, 94.

       See n. 2 supra. We add the comment that in our view the Code provision before us substantially departs from prior Illinois law as well as much of the current law in other jurisdictions on the law of acountability. Essentially these cases provide that one who advises or encourages another to do an illegal act is responsible for all the natural and probable consequences which may arise from its perpetration, but that it is otherwise if the principal totally and substantially varies from the terms of the advice and encouragement so as to commit another and distinct crime which is not the natural or probable result of the encouragement. 2 Moore, Illinois Criminal Law and Procedure, Sec. 1103, Accessories (3d ed. 1932), page 769. (See Hamilton v. People (1885), 113 Ill. 34, 37, 38; Lamb v. People (1880), 96 Ill. 73; People v. Basile (1934), 356 Ill. 171; People v. Faught (1931), 343 Ill. 312; White v. People (1891), 139 Ill. 143.) We think this is a more reasonable approach to the law of accountabihty but one which we cannot adopt in contravention of the language in the Code.


author: Mr. JUSTICE ALLOY Mr. PRESIDING JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Dean Hood et al., Defendants-Appellants.
    (No. 71-180;
    Third District
    May 14, 1973.

      STOUDER, P. J., dissenting.
    Franklin S. Wallace, of Rock Island, (Marshall E. Douglas, of counsel,) for appellants.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendants Ronald Dean Hood and David Roseman appeal from an

_— 8 to 25 year sentence imposed by the circuit court of Rock Island County following a jury trial in which defendant Hood was found guilty of rape, indecent liberties with a child and aggravated assault, and Roseman was found guilty of rape and indecent liberties.

On appeal in this court, defendants seek reversal of the convictions and assert as grounds: (1) that there was no preliminary hearing and they were thereby prejudiced; (2) that proof of guilt of the defendants was insufficient as a matter of law; (3) that hearsay statements of the complaining witness were improperly admitted; and (4) that the prosecution brought out prejudicial testimony, made prejudicial statements to the jury, and brought forth rebuttal testimony which was improperly broad because it duplicated the testimony presented by the prosecution in its case in chief. Defendants also ask for a reduction of their sentences on the ground that such sentences are excessive.

Defendants were arrested on November 12, 1970, and were arraigned I on November 13, 1970. The magistrate presiding at the arraignment con- ' tinued the proceeding until November 24, 1970. Defendants contend that the proceeding was continued for the purpose of holding a preliminary hearing at such time. The State, however, says that the matter was continued without mention, at least in the record, of a preliminary hearing. Docket entries on each of the cases indicate simply that the cases were continued to November 24, 1970.

On November 19, 1970, counsel for defendants notified the State’s Attorney that a preliminary hearing would be held on November 24, 1970, at 10:00 A.M. Defense counsel had subpoenaed witnesses to testify at that hearing. On November 24, 1970, the State’s Attorney appeared at the appointed time but he requested and received a continuance. Defendants were present and apparently ready to proceed with the preliminary hearing. They protested the continuance and offered to prove that prior to the scheduled hearing the State’s Attorney had instructed the subpoenaed witnesses not to appear. The court then suggested that his calendar had been pre-empted for November 24, 1970, and, despite defense counsel’s objections, the court then scheduled the preliminary hearing to be held on December 10, 1970. Defense counsel assert that the court was aware that the grand jury would meet prior to such date.

On December 3 and December 7, 1970, defense counsel moved for an immediate, preliminary hearing but the circuit judge denied that motion.

On December 10, 1970, approximately 4 weeks after defendants were arrested, the grand jury returned indictments for the offenses referred to. The State’s Attorney asserted that this eliminated the need for a preliminary hearing. On December 18, 1970, counsel for defendant moved to dismiss the indictments on the ground that defendants had not received a preliminary hearing. This motion was denied. It is contended by defendants on appeal that the deprivation of the preliminary hearing prevented them from ascertaining the existence of a witness who might have testified in the favor of defendants.

In chapter 38, section 109 — 1 of 1969 Illinois Revised Statutes, it is provided that a person arrested shah be taken “without unnecessary delay” before the judge; that the judge, among other duties, shall hold a preliminary hearing, where he has no jurisdiction to try the offense. In section 111 — 2(a) of said chapter, it is expressly provided that if a defendant is charged with the commission of a felony and there is no waiver of prosecution by indictment with a concurrence by the State, a preliminary hearing or examination upon complaint or information shall be conducted in the manner provided by the Act unless defendant waives such hearing or examination or “unless a bill of indictment on the same felony charge is returned in open court prior to such hearing or examination.” (Emphasis added.) It is thus apparent from the language of such section that no preliminary hearing is required if an indictment had been returned.

With a view to “due process” considerations, it is clear that there is no evidence of any overreaching by the State or the trial court or that any adverse evidence was elicited by the State from the defendants during the interval between the time of defendants’ arrest and the return of the indictment. A four-week interval intervened between arrest and indictment. We find nothing in the record to justify the conclusion that there was a violation of the rights of defendants in not conducting a preliminary hearing during such period since a four-week period is not an unreasonable delay under the circumstances as shown in the record.

Defendants contend that Coleman v. Alabama, 399 U.S. 1, and People v. Adams, 46 Ill.2d 220, 263 N.E.2d 490 (affirmed, 406 U.S. 278) establish that a preliminary hearing is a “critical” stage of a criminal prosecution and, therefore, is guaranteed to the accused as a matter of constitutional right. Neither of the cases referred to gives consideration to the question of a preliminary hearing, with respect to whether such hearing is necessarily required. These cases simply support a narrower principle, to the effect that if a preliminary hearing is held, it constitutes a critical stage of a criminal prosecution and that an indigent accused has a constitutional right to have counsel represent him at the hearing. As a matter of fact, in the Adams case, the Illinois Supreme Court, citing section 111 — 2 of chapter 38 of the Illinois Revised Statutes, clearly recognized that a preliminary hearing is “not a required step in the process of prosecution, as a prosecutor may seek an indictment from the grand jury, thereby eliminating the proceeding.” See also: People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276; People v. Gonzales, 125 Ill.App.2d 225, 260 N.E.2d 234.

It is also apparent from the record that no prejudice actuaUy resulted to defendants. Defendants’ only aUegation of such prejudice is that if it had not been for the delay they might have been able to learn of the existence and identity of a girl who purportedly last was present with complaining witness before the occurrence of the rapes and other acts complained of. Shortly after the indictment was returned, this witness left the jurisdiction, and neither the State nor the defendants have been able to locate her. Defendants’ defense was based on an alibi and on allegations likewise that complaining witness was in an inebriated and emotionally overwrought state when she last was observed prior to the alleged attack. Defendants contend that the missing girl could have been a material witness in their favor. The arguments, however, overlook the fact that the State never knew the girl’s identity.

Defendants next contend that there is insufficient proof as a matter of law that defendants were guilty of the charge of rape or indecent liberties. They also argue that the complaining witness’s testimony was erroneously admitted into evidence and that it is hearsay and not an exception to the hearsay rule. They rely on the authority of People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865. We believe, however, that the case of People v. Damen, 28 Ill.2d 464, is a precedent more applicable under the facts of the instant case.

The chaUenged hearsay statement occurred, following the aUeged attack when the 15-year-old complaining witness went directly to an apartment where her friends were gathered. She was disheveled and distraught and in response to a friend’s question concerning her appearance and what had happened she said, “Oh, you guys, you guys”, and tiren said she could not tell them for fear her assaulters would harm her. She then broke down and started to cry, became hysterical and was unable to speak. She then said she had been raped. This statement and conversation lasted two to three minutes. The complaining witness said on cross-examination that she had been in the presence of her friends for five or ten minutes before she told them what had happened. The court permitted the witnesses to testify that the complainant told them she had been raped but refused to allow them to state the details of her statement.

Statements made by an alleged victim of a rape are controlled by a different evidentiary rule than would apply in other cases. In People v. Vaughn, 390 Ill. 360, where a complaint was made by a prosecutrix in a rape case, the court concluded that even if it was not a part of the so-called res gestae it may be proven by third persons as an exception to the hearsay rule if such complaint was made as soon as practicable and without inconsistent delay. The corroborative statements are deemed to constitute an exception to the hearsay rule and that the purpose of the exception is to permit the complaining witness to dispel the negative inference which could arise if the witnesses were not permitted to state that the complainant told them she had been raped. See People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25.

In the cause before us, the complaining witness was 15 years of age and not a mature adult. The spontaneity of her declaration and its admissibility must be analyzed within the context of her age and of the purpose of the exception. We believe that it was properly admitted as a corroborative statement. (People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25.) The trial judge properly determined within his discretion that in the circumstances of the case before us with a complainant of tender age who had been hysterical and apparently unable to speak before she made her statement, that the statement was properly corroborative and sufficiently spontaneous and, therefore, admissible at least as a corroborating statement. In any event, it would not have constituted harmful error here because the complainant herself was present in court and was subjected to cross-examination and testified that she made the statement. (People v. Smith, 25 Ill.2d 219, 184 N.E.2d 841.) Even in absence of the challenged statement, sufficient corroboration existed from complainant’s physical appearance when she returned to the apartment and further from the testimony of another witness that she accompanied plaintiff to her home following the attack and personally saw complainant’s underpants which were “stiff and everything.” We see no reversible error in the procedure. The testimony alone of the complainant would be sufficient if her testimony is clear and convincing. People v. Vaughn, 390 in. 360.

It is asserted by defendants that the complainant’s testimony was unbelievable as a matter of law. They contend that although the complainant testified she was a virgin prior to the assault there was no evidence of vaginal bleeding following the attack. They also argue there was no evidence of seminal stains on the rear seat of the automobile where the attack allegedly took place. No authority is cited in support of the contention relating to vaginal bleeding and since the implications of such lack of bleeding are not so universally known that we might take judicial notice of them, we will not presume to alter the jury’s implicit determination that lack of bleeding did not make complainant’s testimony unbelievable. The testimony as to lack of seminal stains on a portion of the rear seat of the automobile was testimony which was for the jury to weigh in determining the guilt or innocence of defendants. Similar testimony with respect to whether the underpants were placed in the hamper or discarded was also a matter for the jury to weigh in determining guilt or innocence. We also conclude that the fact that no medical evidence was presented to show that complaining witness had been raped does not cast reasonable doubt as a matter of law upon the testimony of complainant. Since defendants brought this matter to the attention of the jury at the trial, it, also, was for the jury to consider in weighing the guilt or innocence of defendants.

Defendants also complain they were prejudiced by improper remarks made by the prosecutor and by the court’s reception- of rebuttal testimony on behalf of the State which covered matters already presented in its case in chief. Defendants complained specifically of the use of the words “mug shot” in reference to a photograph of one defendant and of the use by the prosecutor of the words “rape partners” or “cohorts” in reference to the defendants. From our review of the record it is apparent that such references were more inadvertent and isolated than studied or repetitive. The words “mug shot” were spoken by the complaining witness and not the prosecutor. We, therefore, find no basis for concluding that such language constituted reversible error. The repetition in rebuttal of a portion of matters shown in the case in chief is permissible in the discretion of the court if the rebuttal evidence tends to explain, repel, contradict, or disprove the defense. (People v, Daugherty, 43 Ill.2d 251, 253 N.E.2d 389.) We do not find that there was any abuse of discretion in this regard which would justify reversal in this cause.

The final request made by defendants is that their sentences be reduced because they are excessive. The court sentenced each defendant to serve a term of imprisonment of not less than 8 nor more than 25 years for the offenses of rape. While it is clear that defendants were properly convicted of the offense of rape, the facts and circumstances in the case lead us to the conclusion that the sentences should be modified. Although this circumstance does not excuse the subsequent conduct of defendants, the record shows that the complaining witness entered the automobile occupied by defendants voluntarily. We particularly note from the record that mitigating evidence was presented on behalf of each defendant. It is shown that Hood is not only married and the father of three children, including a child who is blind and mentally retarded, all of whom he had been supporting, but he also helped, as well, to support the children pf his widowed mother-in-law. Neither Hood nor Roseman had a record of any serious prior conviction. Roseman had supported, as best he could, his wife and her children by a prior marriage. He had saved a child from drowning and on another occasion had prevented a disaster in a boating accident.

The Illinois Supreme Court in the case of People v. Chupich, 53 Ill.2d 572, established that a case has not been finally adjudicated until the last direct appeal has been decided or when the time for filing such appeal has run. Under the IHinois Code of Corrections, chapter 38, § 1008 — 2—4, it is specified that if the offense being prosecuted has not reached “a final adjudication” then for the purpose of sentencing, the sentences under the Code of Corrections apply if they are less than under the prior law. In view of the Chupich precedent and the language of the Code of Corrections, we have determined that the modification of sentence in this cause should follow recommendations contained in the Code of Corrections. The sentences imposed upon defendants in this cause, therefore, are modified to sentences of not less than 4 years nor more than 12 years (plus 5 years of parole).

We, therefore, affirm the convictions and modify the sentences of both defendants in this cause to a term of not less than 4 years nor more than

12 years (plus 5 years parole).

Affirmed and sentences modified.

SCOTT, J., concurs.

Mr. PRESIDING JUSTICE STOUDER

dissenting:

I disagree with the majority of the court: I believe the trial court’s action regarding the preliminary hearing was erroneous, prejudicial and constituted reversible error. Furthermore, I am not satisfied the evidence is sufficient to establish the guilt of the defendants beyond a reasonable doubt.

With respect to the preliminary hearing, it seems to me that the issue presented on this appeal has a somewhat different dimension than that discussed in the majority opinion. The basic issue presented by this appeal is whether the defendants were entitled to a preliminary hearing and if so whether the action of the prosecution and trial court erroneously prevented the defendants from having such a hearing.

The defendants first appeared in court on November 13, 1970, having been arrested pursuant to complaint filed November 10, 1970. According to the docket entry, the court explained their rights and continued the case until November 24. Whether defendants were advised on Novmber

13 of their right to have a preliminary hearing or whether the case was continued for that purpose does not appear of record and in any event is immaterial to the issue raised on this appeal.

However, what transpired on November 24 is of critical importance in considering the merits of defendants’ claims. It is undisputed that notice of motion to hold preliminary hearing on November 24, 1970, the date to which the cause had been continued, was served on the State’s Attorney on November 19, 1970. The remaining essential facts are disclosed by the colloquy between defense counsel, judge and assistant State’s Attorney on the morning of November 24. A motion was filed by the assistant State’s Attorney for continuance on the morning of November 24. It appears from the statements of the assistant State’s Attorney that prior arrangements for the continuance may have been made between court and assistant State’s Attorney without notice to defense counsel. Although there was some vague references by the assistant State’s Attorney to other cases as a basis for his request for a continuance, it appears that such cases had been “scratched off” the calendar. The trial judge did not at any time indicate that a hearing could not be conveniently held on November 24 and even refused to consider the possibility of holding a hearing earlier than December 10, 1970, the date being selected over the objction of defense counsel. In arguing that the preliminary hearing should be held on November 24, Wallace, an attorney for one of the defendants, insisted, “The State’s Attorney’s Office refused to give a preliminary hearing. They do all sorts of maneuvering to do away with a preliminary hearing. The law I feel in this case is being openly flaunted by the State’s Attorney’s office.” Later he declared, “In regard to procedure. In Rock Island County you can’t get a preliminary hearing.”

In their argument during the November 24th hearing, in their December 3 motion for immediate preliminary hearing, and, in their motion of December 18 to dismiss the indictment, the defendants alleged and such allegation was never denied, that preliminary hearings were not held in Rock Island County, because according to the view of the State’s Attorney, approved by the courts, preliminary hearings were not considered critical stages in the criminal prosecution and hence not required. It was also undenied that continuances were granted which had the effect and purpose of scheduling hearings beyond when the case was expected to have been presented to the grand jury. Indeed, in its brief, the only position taken upon this issue by the State is that the court is not required to afford a defendant a preliminary hearing. According to the State, since a hearing is not required it is immaterial whether the defendant is prevented from having such a hearing either by continuances or otherwise.

The major thrust of the majority opinion is that the delay of about one month was “reasonable” yet nowhere in its brief does the State even mention the term “reasonable” or claim that the court’s action was in any way governed by or based upon any rule of reasonableness.

Although this problem may have constitutional overtones, the principal issue involves the application of parts of section 109, chapter 38, Ill. Rev. Stat. 1969. By the terms of Section 109 — 1(a), a person arrested “* * * shall be taken without unnecessary delay before, the nearest and most accessible judge * # According to Section 109 — 1(b),

“The judge shall:
(1) Inform the defendant of the charge against him and shall provide him with a copy of the charge.
(2) Advise the defendant of his right to counsel and if indigent shall appoint a public defender or licensed attorney at law of this State to represent him in accordance with the provisions of Section 113 — 3 of this Code.
(3) Hold a preliminary hearing in those cases where the judge is without jurisdiction to try the offense; and
(4) Admit the defendant to bail in accordance with the provisions of Article 110 of this Code.”

It should be observed that the language of the statute is mandatory and the duties which the court “shall” perform are clearly specified. That the statute imposes a duty to hold a preliminary hearing, just as it requires the court to advise the defendant of the charges, his rights and the appointment of counsel for him if indigent, is, I believe, inescapable from the language of the statute itself.

Contrary to the assertion of the prosecution, such cases as People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490; People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527; and People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276, do not affect the duty to hold the preliminary hearing provided in Section 109— 1(b)(3) nor do they hold either directly or by necessary implication that the defendant is not entitled to a preliminary hearing. In observing as does the Adams case, that a preliminary hearing is “not a required step in the process of prosecution, as a prosecutor may seek an indictment from the grand jury, thereby eliminating the proceeding”, the court is merely observing that a prior charge, arrest and preliminary hearing are not conditions precedent to the return of an indictment. In other words the prosecution is not “required” to first arrest a person accused of a crime before presenting the case to the grand jury and seeking an indictment. However, in the large majority of cases, the person accused of crime is first arrested and charged before an indictment is sought and under such circumstances section 109 — 1(b)(3) and 109 — 3 are applicable. In so far as the determination of whether probable cause exists for believing a criminal offense has been committed and believing that the person accused thereof committed such offense, one of the principal purposes of a preliminary hearing is to prevent the unjustified detention of a person charged with a criminal offense.

The majority of the court and I reached the same conclusion regarding the duty imposed by statute to hold a preliminary hearing as soon as reasonably practicable and without unreasonable delay and to that extent I concur in the observations in the majority opinion. However, by emphasizing a quotation selected from Adams, it appears that the majority has not unconditionally approved or applied the statutory duty and seems to suggest that perhaps the diligence to be exercised is somewhat lessened when the procedure is characterized as “not required” in another frame of reference, i.e., whether the right of representation should be given retro-active effect.

Discussing the scope, function and importance of a preliminary hearing and in particular the lawyer’s relation thereto, the court in People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, quotes the following with approval from the case of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387,

“First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case, that may lead tire magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and malee possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.”

In addition, section 109 — 3 describes other functions of the preliminary hearing, including the perpetuation of testimony for either the prosecution or the defense and means to secure the attendance of witnesses for the prosecution or defense at any future trial.

While it may be a primary function of a preliminary hearing to determine whether the defendant should be further held to answer the charges, the incidental effects are significant and offer additional justification for requiring the trial court to provide such a hearing, at least when there is reasonable opportunity to do so prior to indictment. The Illinois Constitution of 1970 in article 1, section 7 (not in effect at the time of preliminary hearing conducted in this case) provides that a preliminary hearing shall be held promptly, thereby reinforcing the pre-existing statutory duty.

Since neither the prosecution nor the trial court believed the defendants to be entitled to a preliminary hearing without unreasonable delay, I do not see how it can be said that the facts reasonably justified the court’s action or that the court acted reasonably in accord with the statutory mandate. Even if this aspect of the trial court’s action is ignored, the record reveals an absence of any justification for not holding the preliminary hearing on November 24 and an absence of any facts warranting the conclusion that a continuance of nearly two weeks and a half was reasonable. A delay of nearly a month while the defendants were in jail is, I believe, an unreasonable delay in providing a preliminary hearing in the absence of a showing of any justification, reason or excuse therefore. Under the Federal statutes, 18 U.S.C. § 3060(c), the defendant is entitled to such a preliminary examination within 10 days from the date of the complaint. (United States v. Brumley, 466 F.2d 911.) While the Federal statute is not applicable to this case and does not purport to be an interpretation of the Illinois statute, nevertheless the shortness of the period provided in the Federal statute is instructive.

This brings me to the question of prejudice which may have resulted from the court’s error in not affording defendants a preliminary hearing within a reasonable time. The defendants have charged that if the preliminary hearing had been held and they had learned from the prosecutrix of the existence of a girl named “Candy” who was with the prosecutrix at sometime prior to her entry into the car of her alleged attackers, they might have been able to locate Candy and she might have been helpful as a defense witness. It also appears from the testimony of the prosecutrix and her two girl-friends that Candy was with the prosecutrix in Carlos’ apartment and left with her for the dance. Candy and the prosecutrix were picked up by a friend of Candy’s on the way and proceeded to the place of the dance. Candy left and the prosecutrix stayed about 10 minutes according to her testimony, but apparently saw no one at the dance that she knew. Candy seems to be the only witness able to describe what may have happened after the prosecutrix left Carlos’ apartment and left the dance. The procedure of the court which prevented the defendants from learning of Candy did constitute prejudice. If neither the assistant State’s Attorney nor the prosecutrix knew Candy or knew of her whereabouts at time of trial, such circumstances warrant the conclusion that earlier knowledge of her existence which might have been disclosed at a preliminary hearing would substantially increase the likelihood that she could have been located by the defendants. Furthermore, since she was one of the last persons to have seen the prosecutrix as the latter was leaving the dance, her testimony had the potential of having some bearing on the incident. Whether her testimony would have benefited the defendants or for that matter would have aided the prosecution cannot be ascertained, but it is the inability to ascertain the nature of her potential testimony which constitutes an element of the prejudice resulting from the failure to hold the preliminary hearing.

I believe the defendants were substantially prejudiced by the improper action of the prosecution and the trial court, and since such prejudice cannot be eliminated by a remand, I believe the only alternative should be a reversal of the convictions.

In believing as I do that the evidence is not satisfactory for justifying a conclusion that the defendants were guilty beyond a reasonable doubt, I am primarily concerned with the unsatisfactory nature of the evidence proffered as corroborating evidence that an offense occurred. In People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865, the court observed:

“The case of People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25, discusses in detail the background and reasons for the admissibility of declarations of a complainant as an exception to the hearsay rule either as spontaneous or unreflecting statements, or, in rape cases, as corroborative statements admitted to foreclose the assumption that a failure to speak out would in effect be evidence of the fact that nothing violent occurred. We held that to be admitted as a spontaneous statement it must not have been made as a result of questions, that to be admitted as corroborative it must have been made without inconsistent or unexplained delay and also not as a result of questions. In Damen the victim had been brutally assaulted and raped, but in her resistance she had succeeded in asking the telephone operator to call the police before the defendant had torn the phone from the wall and beat her over the head with it. When the police arrived and noted the shambles in the apartment and the bleeding and beaten victim they asked, ‘What happened?’ We held her response to be a spontaneous declaration and that under the circumstances the single question, ‘What happened?’ was insufficient to destroy its spontaneity.
In the case before us the girl did not immediately make any explanation or complaint to the fireman. The fireman asked if he could help her. She said she wanted to use the phone. Even in answer to his second question as to whether anything was wrong she still indicated nothing that could be deemed as uncontrolled and spontaneous utterance of outraged feelings as required by Damen.”

The trial court ruled that the statements of the prosecutrix to her girlfriends, Marcia Knapp and Sue Hobbs, were spontaneous declarations in accord with the rule as applied in People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25, rather than impermissible hearsay as the rule was applied in People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865. An examination of the record persuades me that the alleged statements of the prosecutrix were even less spontaneous in the case at bar then those in the Taylor case.

This case had been tried before and resulted in a mistrial because of a deadlocked jury. During the first trial the prosecutrix and her two girlfriends, Knapp and Hobbs, had testified so that both the prosecution and defense knew in some detail the nature of the testimony which each of the three witnesses might offer. Rather than caHing the prosecutrix as the first witness,, the prosecution called Marcia Knapp as the first witness. She testified to the three girls getting together earlier in the evening, their going to the apartment of Carlos Olivera, the departure of the prosecutrix in the direction of the dance, the return of the prosecutrix to the apartment building and especially she described what took place and what she said after the prosecutrix returned to the apartment.

According to Knapp, the prosecutrix went up the stairs to the second floor apartment of Carlos Olivera, knocked on the door, asked for Carlos but was told by Chot, his brother, that he didn’t know where Carlos was. As the prosecutrix was going back down the stairs, the witness and her companion, Sue Hobbs, called to the prosecutrix to come into the first floor vacant apartment where the girls were. When the witness first saw the prosecutrix in front of the downstairs apartment door, the prosecutrix said, “Oh you guys, you guys”. At this juncture defense counsel objected to the statement of the prosecutrix or any other statements because hearsay and inadmissible and at the same time requested a hearing on the matter outside the presence of the jury which was held. After a preliminary discussion between court and counsel this witness was questioned outside the presence of the jury with particular regard to other statements which the prosecution proposed to elicit from the witness. The objections of the defendants were overruled, the court holding, after considering both the Taylor and Damen cases, that the statements of the prosecutrix were spontaneous.

When the witness resumed her testimony after the jury was recaHed, she testified that after the prosecutrix had made the statement, “Oh you guys, you guys”, that “Sue Hobbs asked her what was wrong and she said, ’Oh, you guys, you guys’ And Sue goes, ‘What?’ and she goes, ‘I can’t teU you or they will kill me,’ Sue goes — Sue said, Who wiU kill you.’ and she says, ‘I can’t teH.’ And then — ”

“STATE: Slow down and talk louder.
A. Then she just broke down, she cried and acted hysterical and she turned toward the waH and she just cried, she couldn’t stop and then she started breathing real hard and she couldn’t stop and she couldn’t talk.
* # *
A. And then she just turned toward the wall and couldn’t talk and just couldn’t stop crying and we finally got her to say something and she told us that she had been raped and we asked her who it was and she said that she had never seen them before * # # ”

Sue Hobbs was called next by the prosecution and her testimony confirmed generally the events which had taken place earlier in the evening including her testimony regarding the return of the prosecutrix to the apartment at about 11:45. She confirmed that the prosecutrix had gone to the second floor apartment and had asked for Carlos and when they (witness and Marcia Knapp) heard the voice of the prosecutrix they called to her. According to this witness, as the prosecutrix was coming down the stairs she said, “Oh you guys, you guys” and repeated the same as she entered the first floor apartment. According to this witness, “She said — I go, ‘What’s wrong?’ and she said, 1 can’t tell you,’ and I go, ‘Why?’ and she goes ‘Because.’ and I go, ‘Why?’ and she goes — she just goes, ‘Oh, you guys, you guys.’ and we go, ‘What’s wrong?’ and she goes, T can’t tell you or they will kill me.’ and we were all looking at her real funny cause we didn’t know what was going on or anything and she broke down and started crying and we kept asking her what was wrong and she wouldn’t tell us and then finally she — .”

According to the testimony of both Knapp and Hobbs the prosecutrix looked pale, her eye shadow was smeared and her shirt was described as wrinkled with the tail pulled out. According to the witnesses she looked as if she might have been crying but otherwise there was nothing unusual about her appearance.

According to the testimony of Debbie Loding, the prosecutrix, concerning what transpired after she returned to the apartment building, she indicated that she ran up to the second floor apartment, knocked, asked for Carlos and was told by Chot he was not there. Hobbs called to her from the downstairs apartment and according to the witness,

“* * * And I was just starting to turn around and Sue opened the door downstairs and she goes, ‘Loding’. And I was scared and I turned around and I just stood there and she goes, ‘Come on in here.’ and I goes downstairs and I couldn’t speak to them.
Q. Why not?
MR. DOUGLAS: I will object to that, Your Honor.
Q. Did you try to say something to them?
A. Well, I couldn’t—
MR. DOUGLAS: Objection, leading.
BY THE COURT: Sustained.
Q. What happened then?
A. Sue kept asking me what was wrong, everybody kept saying, ‘What happened?’
* # #
MR. COLLINSON: Your Honor, for the record, we would object to any conversations that took place between herself and the other persons as being hearsay.
ft ft ft
BY THE COURT: Overruled.
STATE: Go ahead and say what happened.
A. I couldn’t tell them.
MR. DOUGLAS: Objection to the reason, the testimony is before the Court and that is that she said she could not talk.
BY THE COURT: Overruled.
A. I told them I couldn’t tell them because if I told on them they said they would kill me if I did. * * *”
On cross-examination of prosecutrix she was asked;
“Q. Then just as you turned around you were able to look down the stairs and see Sue Hobbs?
A. Well, she — she—well, I wasn’t turned around when she yelled at me, she was talking to me and then I turned around and saw her.
Q. And you were downstairs about five (5) to ten (10) minutes before you said anything about what happened, isn’t that correct?
A. Yes.
Q. And this was only after they asked you a number of times, What happened, what happened?’
A. Yes.”

In the testimony of the prosecutrix and in particular her cross-examination, it can be seen that a period of time elapsed even after the prosecutrix went downstairs and also that many questions were asked. The order of calling the witnesses tended to minimize both the time lag and the questioning which took place and the defendants objection included the failure to present a proper foundation, i.e., the prosecutrix’s own testimony in order to establish the time and chronological relationship between the claimed offense and the events which took place in the apartment. The court ruled that such a foundation was unnecessary but permitted the testimony of the first witness on the basis that the prosecutrix would substantiate the sequence, thereby making the testimony of the first and second witnesses corroborative of a spontaneous declaration. We agree with die trial court that the order of calling witnesses was within the discretion of the prosecution and that the testimony of die prosecutrix was not required before other evidence was presented. However, it is also clear that the order of presenting the witnesses tended to obscure the issue to some extent and once having agreed to admit the evidence of the other witnesses the court could thereafter hardly refuse to receive the testimony of the prosecutrix since a contrary ruling at this stage would have necessitated a second mistrial.

From the foregoing testimony the only reasonable conclusion to be drawn therefrom is that the complaint of rape was elicited, even viewing the evidence most favorably to the prosecution, after numerous questions, a substantial lapse of time, after other opportunities to register her complaint and where the circumstances disclosed opportunity for reflection and action no longer motivated or controlled by prior events.

There is another aspect of this case which disturbs me. I think there is another essential condition which must be shown before an otherwise inadmissible hearsay declaration can have the force of a spontaneous utterance justifying its admission as substantial probative evidence. The rule justifying spontaneous utterances is based on our belief that reliability and veracity are assured by the continuing influence of the prior events. Implicit in the rule is that reliability and veracity are equally dependant upon the circumstances surrounding the complaint or spontaneous declaration, including the actions and conduct of the witnesses based on their response to the complaint. In other words, if the witnesses to the claimed spontaneous utterance do not act or react in a manner consistent with the claim of rape which they are called upon to corroborate, it appears to me that such testimony no longer has any legal effect as corroboration and is insufficient to justify admission of hearsay testimony under the spontaneous utterance rule. In this case initially we have the scene of the declaration as a vacant apartment in which two girlfriends of the prosecutrix have been spending time with their boyfriends. After the claimed declaration is made what do the parties do? The prosecutrix and her two girlfriends go to the home of the prosecutrix but even though her mother was awake nothing whatsover is said about the affair. In fact nothing is said by the prosecutrix or her two girlfriends until Monday evening, three days after the incident occurred, at which time prosecutrix reported the incident to her parents. Even then contact with the police was not made by the prosecutrix or her girlfriends until the following day. Such conduct is, in my opinion, wholly lacking in any basis for importing trust or veracity to the hearsay declarations of the prosecutrix.

Laboratory technicians examined the back seat of the car belonging to Hood, as weU as samples of hair, but were unable to find any evidence corroborating the presence of the prosecutrix in the car or corroborating the fact that intercourse may have taken place on the back seat. Such testimony might be regarded as negative corroboration in the sense the absence of any such evidence, where the same should have been expected, tends to refute the contrary claim of the prosecutrix.

Thus, I believe the purported corroborating testimony of the prosecutrix and her two friends is not a spontaneous utterance within the rule of Taylor. The reasons for applying the rule against such hearsay are even more cogent when the purported corroborating evidence viewed as a whole is inconsistent with and fails to afford any underlying reasons for imputing truthfulness and veracity to such evidence. Since in my view the alleged corroborating evidence was erroneously admitted by the trial court, it seems to me that the evidence is insufficient to warrant the defendants conviction for rape and should be reversed.