author: JUSTICE MEJDA

text:
    CHARLES MARVIN et al., Plaintiffs-Appellants, v. THE CHICAGO TRANSIT AUTHORITY, Defendant.—(The City of Chicago, Defendant-Appellee.)
    First District (5th Division)
    No. 81—2172
    Opinion filed February 4, 1983.
    — Rehearing denied March 24, 1983.

      William L. Barr, Jr., of Steinberg, Polacek & Goodman, of Chicago, for appellants.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

This is an appeal from an order striking and dismissing counts V and VI of plaintiffs’ first amended complaint against the defendant municipality. Charles Marvin and Rosemary Marvin sued the Chicago Transit Authority and the city of Chicago (hereinafter City) for personal injuries suffered by Charles Marvin (hereinafter plaintiff) when he was beaten by six youths at a subway platform in Chicago. At the time of the alleged beating, the subway station was patrolled by a Chicago police officer.

The issue presented for review is whether the circuit court erred in granting the City’s motion to be dismissed as a party defendant pursuant to section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1981, ch. 85, par. 4 — 102). On appeal, plaintiff contends that the City’s liability is not limited by this act because: (1) the City assumed the duty of a common carrier by undertaking responsibility for policing the rapid transit system, and (2) the City owed a “special duty” to plaintiff under the specific circumstances of his injury. We affirm the order of the circuit court.

The alleged facts are as follows. On July 9, 1976, plaintiff, a Chicago Sun-Times copy# cutter, left his job at 2:30 a.m. and walked alone to the subway station at Grand Avenue and State Street in the city of Chicago. At the station, he approached the cashier’s window to pay his fare. Six youths had arrived and were arguing with the cashier about the validity of several transfers. These youths were loud and appeared to be intoxicated. The youths were blocking the entrance when plaintiff walked up and told the cashier that he wished to pay his fare. While plaintiff attempted to pay his fare, one youth struck him, swore at him and threatened him. Meanwhile, Harrison Mailey, a Chicago police officer, emerged from another booth and stood three to five feet away. Two of the youths jumped over the turnstile while plaintiff paid his fare. The officer told the youths to use their transfers, saying, “Just get the hell out and go on downstairs.” Before leaving, one of the youths again struck and threatened plaintiff.

The six then went to the right and down the stairs that led to the southbound platform. Plaintiff asked Officer Hailey if he would accompany him to the northbound platform. The policeman declined, telling plaintiff that he was “going to be all right” on the northbound platform because the youths had gone to the southbound one. When plaintiff walked down two flights of stairs to the landing for the northbound trains, he encountered the six youths on the northbound platform, sitting on a bench 10 feet to his right. As a result, the six again attacked and beat him, whereby he sustained severe injuries. During the beating, Office Hailey was upstairs talking to the ticket agent.

Count V of the amended complaint alleges that the City assumed a “special relationship” to passengers when it directed officers of its “Hass Transit Unit” to assume “almost full responsibility for policing the rapid transit system and protecting the riding public.” It also alleges that the City breached its duty when it negligently “directed, permitted or caused” plaintiff to descend without protection into the subway, and when it improperly failed to accompany him onto the platform.

Count VI alleges that the City undertook to perform the duties of a common carrier with regard to providing passenger security, and that it breached such duties by its failure to provide plaintiff with adequate police protection, by its failure to warn him of the possible dangers, and by its failure to provide for his safety under the unique circumstances of the case.

The defendant City moved to strike the complaint and dismiss the case as to its liability on the basis of section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act. Plaintiff then filed a transcript of his own deposition testimony and a memorandum in opposition to the motion. The circuit court ordered that the City be dismissed as a party defendant and that the cause of action continue as to defendant Chicago Transit Authority.

Opinion

It is well settled in Illinois that generally a municipality is not liable for its failure to supply police protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Adamczyk v. Zambelli (1960), 25 Ill. App. 2d 121, 166 N.E.2d 93.) This common law concept of sovereign immunity is expressed in section 4 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1981, ch. 85, par. 4 — 102) which provides: “Neither a local public entity nor a public employee is liable *** for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.” It is also well settled that the duty of the police is to preserve the well-being of the community at large, and that such duty is generally not owed to specific individuals. (Huey; Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 440 N.E.2d 942; Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610.) This rule rests upon public policy considerations and “embodies the conclusion that a police department’s negligence — its oversights, blunders, omissions — is not the proximate or legal cause of harms committed by others.” Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610, 612.

To survive a motion to dismiss, it is not sufficient that a complaint merely allege a duty, but the pleader must allege facts from which the law will raise a duty, and facts must be alleged showing an omission of that duty and resulting injury. (Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 414 N.E.2d 104.) Thus, we must look to the instant complaint to determine if plaintiff has alleged sufficient facts from which the law will raise a duty and which will therefore support the cause of action in view of the tort immunity statute.

In count V of plaintiff’s first amended complaint, plaintiff alleges that the City assumed a “special relationship” to passengers of the rapid transit system by assuming “almost full” responsibility to police its facilities. It is further alleged that the City breached its duty to exercise ordinary care toward plaintiff when it negligently “directed, permitted or caused” plaintiff to descend into the subway without protection, and by its failure to accompany him when it knew or should have known of the danger of injury to him. On appeal, plaintiff contends that this count states a cause of action under the “special duty” exception to the general rule that municipalities are not liable for failure to exercise general police powers.

The general requirements of the “special duty” exception, whereby the police owe a special duty to an individual, as contrasted to the public at large, are as follows: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. (Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 407, 440 N.E.2d 942, 947; Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970, 414 N.E.2d 104, 106.) Here, even assuming plaintiffs have satisfied the first three requirements, they have made no allegations which lead to the conclusion that the plaintiff’s injuries occurred while he was under the direct and immediate control of a police officer of the City. The mere disjunctive allegation that the police officer “directed, permitted, or caused” plaintiff to descend to the platform in question does not meet this latter requirement. It is also noted, parenthetically, that any favorable inference from such pleading is betrayed further by plaintiff’s own deposition testimony which clearly demonstrates the absence of such direct and immediate control of him by the police at the time of his unfortunate injury. Accordingly, we must uphold the dismissal of the allegations of count V which assert the City’s negligence based upon the “special duty” exception. Accord, Curtis, but c.f Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, appeal after remand (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829, cert. denied (1971), 403 U.S. 919, 29 L. Ed. 2d 696, 91 S. Ct. 2230, which found a cause of action where the plaintiff was attacked again when he accompanied police officers to identify some persons who had attacked him earlier in the day.

With regard to count VI of plaintiff’s first amended complaint, plaintiff argues that the tort immunity provision is not applicable to the City due to the City’s affirmative undertaking of the protection of fare-paying passengers of the rapid transit system located within its boundaries. It is plaintiff’s contention that the City thereby has assumed a significant aspect of the common law duties of a common carrier. Plaintiff theorizes that the City, by assuming the role of policing the rapid transit stations, became subject to the Metropolitan Transit Authority Act (111. Rev. Stat. 1981, ch. lll2/3, par. 301 et seq.) and thereby is not entitled to immunity under the provision of the Local Governmental and Governmental Employees Tort Immunity Act, which states:

“*** [T]his Act does not apply to any entity organized under or subject to the ‘Metropolitan Transit Authority Act’ ***.” (111. Rev. Stat. 1981, ch. 85, par. 2 — 101(b).)

Finally, plaintiff concludes that the City, through its police officers, was bound to exercise a high degree of care toward him, a passenger of the transit system.

A motion to strike and dismiss admits facts well pleaded, but not conclusions or opinions alleged in the pleadings, such as unsupported conclusions of law, and the motion does not admit any situation which is legally or factually impossible. (E.g., Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429; Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App. 2d 1, 225 N.E.2d 67.) As defined by Illinois courts, a “common carrier” is “one who undertakes for the public to transport from place to place such persons *** as choose to employ him for hire.” (Illinois Highway Transportation Co. v. Hantel (1944), 323 Ill. App. 364, 374, 55 N.E.2d 710, 714.) Plaintiff here has alleged insufficient facts to support the conclusion that the City has undertaken the operation of a common carrier under this definition. Regarding the applicability of the Metropolitan Transit Authority Act, we observe that this act creates the Chicago Transit Authority and it invests no powers and creates no duties or liabilities upon the City of Chicago or its police department. We therefore find nothing in this act which would expand the traditional common law duty of police departments and their officers owed to the public at large. Accordingly, we find this act inapplicable to the existence of any duty owed by the City in the situation at bar.

Next, plaintiff relies upon the general tort principle that liability can arise from the negligent performance of a voluntary undertaking for the protection of third persons. (See generally Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472; Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769; Restatement (Second) of Torts sec. 324A (1966).) While these authorities have held that a duty voluntarily assumed must be performed with “due care” or “ '*** such competence and skill as one possesses’ ” (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 85-86, 199 N.E.2d 769, 774), or with reasonable care (Cross; Pippin), there is no requirement that such duty must encompass a high degree of care as alleged by plaintiff’s complaint.

The existence of a duty ultimately depends upon choice between competing policies. (Prosser, Torts sec. 53 (4th ed. 1971).) Recognizing a duty of the highest degree of care owned generally by police officers to passengers of the Chicago Transit Authority, as urged by plaintiff, would place the police department in the position of virtual insurers of the personal safety of every passenger, certainly an untenable result. As previously stated, the duty of the police is to preserve the well-being of the community at large, and no recovery is permitted for breach of this duty unless the police have assumed a special relationship to a particular person. The plaintiff's allegations in count VI are insufficient to take this case out of the general rule denying liability. We therefore agree with the trial court’s dismissal of this count for failure to state a cause of action against the city of Chicago.

Finally, plaintiff argues that the “dual capacity doctrine” of work-era’ compensation law creates an alternate basis for the imposition of liability upon the City. The doctrine permits recovery by an employee from an employer if the injuries resulted from a breach of a duty of an employer independent from those imposed upon him as an employer. (See generally Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 396 N.E.2d 524; Goetz v. Avildsen Tool & Machines, Inc. (1980), 82 Ill. App. 3d 1054, 403 N.E.2d 555.) This doctrine has no relevance to the case at bar, and we need not discuss its validity under the circumstances herein.

In reviewing the instant dismissal order, we have considered only matters relating to the sufficiency of the complaint., W¿ hold that counts V and VI of the instant amended complaint, standing alone and unaided, fail to demonstrate any possibility of recovery against the city of Chicago.

For the foregoing reasons, the order of the circuit court is affirmed.

Affirmed.

WILSON, P.J., and SULLIVAN, J., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    BANK OF HOMEWOOD, Plaintiff-Appellee, v. LILAS E. SJO, a/k/a Lilas E. Show, Defendant-Appellant.
    First District (1st Division)
    No. 81—2928
    Opinion filed February 28, 1983.
    — Rehearing denied April 11, 1983.

      Robert Marks, of Marks, Marks & Kaplan, of Chicago, for appellant.
    Raymond E. Stachnik and Robert P. Nolan, both of Abramson & Fox, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, Lilas Sjo, appeals from a summary judgment entered against her in the circuit court of Cook County in favor of plaintiff, Bank of Homewood, construing defendant’s written guaranty to extend to a promissory note executed by Ralph Sjo. On appeal, defendant raises the following issues: (1) whether the trial court erred in construing her guaranty to extend to the indebtedness in question; and (2) whether the trial court erred in entering summary judgment in light of ambiguity in the terms of the guaranty.

In 1974, Ralph Sjo, who was also known as Ralph Show, then defendant’s husband, sought to borrow from plaintiff on behalf of Cooper-Hostert, Inc., a Ford agency of which he was principal owner and operator. As part of the loan agreement, plaintiff required a guaranty from defendant. Defendant was secretary of the corporation although she indicated that she knew nothing of the business and did not own any stock. The guaranty document was prepared by plaintiff and signed by defendant on August 1,1974.

The guaranty provided, inter alia, that defendant guaranteed grants of credit up to $125,000 to “Ralph Show, Ralph Sjo and Cooper-Hostert, Inc.” (hereinafter called the Borrower). Defendant’s husband used two different spellings of his name so both were in-eluded on the document.

Affidavits filed by the president of plaintiff bank indicated the following transactions between the bank and Ralph Sjo and Cooper-Hostert, Inc. In August and September of 1974, plaintiff made four loans to Ralph Sjo and Cooper-Hostert, Inc., totalling $110,000. The notes were all due on January 28, 1975. The four notes were renewed by one note due July 28, 1975. That note was renewed by two successive six month notes, the last note being due on July 22, 1976. On September 20, 1976, Ralph Sjo solely executed a note in the sum of $110,000. This note renewed the previous note and was due on November 19, 1976.

According to the affidavit of plaintiff’s president no portion of the $110,000 principal balance has been paid. At the time each successive note was renewed, a new note was executed and the previous note was returned to the borrower stamped paid. Plaintiff admitted at trial that there was no longer any indebtedness against Cooper-Hostert.

On November 3, 1981, the trial court denied defendant’s motion for summary judgment seeking discharge of her guarantor obligation and granted plaintiff’s motion for summary judgment on defendant’s guaranty. Judgment was entered against defendant in the sum of $128,000 comprised of the principal balance of the note plus accrued interest of $15,000 and attorney fees of $3,000.

The first issue raised by defendant is whether the trial court properly construed the guaranty to extend to the indebtedness in question. Defendant argues that the words of her guaranty, when given their usual and customary meaning, clearly limit defendant’s liability to an indebtedness to plaintiff on which both Sjo and CooperHostert are debtors. Defendant relies upon Chicago Land Clearance Com. v. Jones (1957), 13 Ill. App. 2d 554, 558-59, 142 N.E.2d 800, 802-03, to argue that the trial court improperly substituted the word “or” for the word “and” in the guaranty. Defendant argues that the word “and” as used in the guaranty is strictly of a conjunctive nature. Therefore, defendant argues that when the bank rewrote the note to exclude the liability of Cooper-Hostert, defendant’s guaranty no longer applied to the debt.

Plaintiff contends that the trial court properly construed the guaranty by determining the intent of the parties from the entire document rather than from an isolated word. Plaintiff argues that the modification clause in the guaranty indicates that the guaranty was intended to extend to the note in question. The clause provides:

<<*** any anc[ an such collateral and security and guaranties and other obligors, if any, may, from time to time, without notice to or consent of the undersigned, be sold, released *** without in any manner affecting or impairing the liability of the undersigned.”

The guaranty also provided that the defendant guaranteed “any and all existing and future indebtedness and liability of every kind, nature and character (including all renewals, extensions and modifications thereof) from the Borrower to the Bank, howsoever and whensoever created, or arising, or evidenced or acquired.” The uncontradicted affidavit of plaintiff’s president established that the current indebtedness was a renewal of the original obligation. Plaintiff asserts that a note given in renewal, and not in payment, does not extinguish the original obligation. Whirlpool Corp. v. Bank of Naperville (1981), 97 Ill. App. 3d 139, 421 N.E.2d 1078.

Plaintiff also argues that Chicago Land Clearance Com. supports the trial court’s interpretation of the guaranty. In Chicago Land Clearance Com. the court noted that “*** in order to effectuate the intention of the parties to a contract, where the intention is evident, the word ‘and’ may be construed to mean ‘or’ ” (13 Ill. App. 2d 554, 559, 42 N.E.2d 800, 803). Plaintiff contends that the contract when read in its entirety does not require an interpretation of the word “and” to mean that all elements connected by “and” must be considered to be a set for all purposes.

It is established that guaranty agreements are to be strictly construed in favor of the guarantor and that the guarantor’s liability cannot be extended by construction. (King Korn Stamp Co. v. Guaranty Bank & Trust Co. (1969), 114 Ill. App. 2d 428, 438, 252 N.E.2d 734, 739.) A guaranty contract, however, which is unequivocal in its terms must be interpreted according to the language used, “for it is presumed that the parties meant what their language clearly imports.” National Acceptance Co. of America v. Exchange National Bank (1968), 101 Ill. App. 2d 396, 402, 243 N.E.2d 264, 267.

In Jacobson v. Devon Bank (1976), 39 Ill. App. 3d 1053, 351 N.E.2d 254, the plaintiff sought a declaration that his guaranty was void because after he had informed the bank that he would not renew his guaranty in connection with a proposed extension of the debtor’s obligation, the debtor executed a renewal note. The plaintiff’s guaranty contained a clause stating that his liability would not be impaired by any renewal or extension of the debtor’s obligation. The court held that under the clear and unambiguous language of the guaranty the plaintiff’s liability was not extinguished by renewal of the note.

We are faced with a similarly broad contract of guaranty in the case at bar. Defendant agreed to guaranty all future indebtedness “in-eluding all renewals, extensions and modifications thereof.” In this case, as in Jacobson, “we are obliged to give effect to the clear and unambiguous language which the parties ratified and adopted.” 39 Ill. App. 3d 1053,1056, 351 N.E.2d 254, 256.

We agree with defendant that in certain circumstances the release of one of the co-debtors would release the guarantor. In the present case, however, neither party has sought to make Cooper-Hostert a party for any purpose nor explained the absence of the corporation on the renewal note. Furthermore, defendant has not alleged that she suffered any harm as a result of the bank’s failure to require the corporation to sign the renewal note. A contract should be interpreted as a whole, giving meaning and effect to every provision thereof. (Spircoff v. Spircoff (1979), 74 Ill. App. 3d 119, 127, 392 N.E.2d 363, 369.) In light of the broad modification clause in the guaranty contract in this case, the renewal of the original obligation releasing the corporation did not extinguish defendant’s guaranty.

Defendant also argues that the trial court erred in granting summary judgment since if “and” was not construed as a conjunction an ambiguity existed in the contract requiring the presentation of evidence on the intention of the parties at the time the contract was entered. A motion for summary judgment may be granted when the pleadings, affidavits, depositions and other documents demonstrate that there is no genuine issue of material fact which would warrant trying the case, and the moving party is entitled to judgment as a matter of law. (McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16.) Plaintiff argued that the terms of the contract are not ambiguous when construed as a whole. We agree. Contract language is not rendered ambiguous simply because the parties do not agree on its meaning. (Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 368 N.E.2d 1099.) Under the clear and unambiguous language of the contract, defendant’s guaranty extended to the note at issue. Entry of summary judgment in plaintiff’s favor was proper.

Accordingly, for the reasons stated above, the judgment entered by the circuit court is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER GRIFFIN, Defendant-Appellant.
    First District (1st Division)
    No. 81—157
    Opinion filed December 20, 1982.
    — Rehearing denied March 28, 1983.

      Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard B. Levy, and Daniel Jordan, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Christopher Griffin was found guilty by a jury of four counts of theft and four related counts of conspiracy to commit theft based upon four purchases of luxury items at jewelry and gift stores. Defendant was sentenced to four consecutive terms of five years of the theft and conspiracy convictions. On appeal, defendant raises the following issues: (1) whether the trial court’s comments concerning an agreement between a witness and the State were proper; (2) whether the trial court erred in giving to the jury non-IPI jury instruction; (3) whether remarks made by the prosecution during closing argument constituted error; (4) whether the trial court erred in admitting testimony of a credit card company investigator and a police investigator concerning a prior arrest of defendant; (5) whether the admission of evidence concerning other crimes which defendant committed with a witness was proper; (6) whether other miscellaneous errors warrant reversal and a new trial; (7) whether the double jeopardy clause bars retrial because of alleged prosecutorial or judicial overreaching; and (8) whether it was error to convict defendant of conspiracy to commit. theft where defendant was also convicted of a completed crime.

Since defendant does not contest the sufficiency of the evidence which resulted in his convictions, we need not review the evidence in great detail.

Defendant Christopher Griffin and Dorothy Collins were charged in four indictments with theft and conspiracy to commit theft: (1) of a watch valued at about $2,464 from Lebolt & Co. and/or Telecheck-Chicago Corporation; (2) of a watch valued at about $8,437 from Kay Water Tower Corporation and/or J.B.S. Associates; (3) of a ring at about $2,332 from Rogers Enterprises and/or Telecheck Chicago, Inc; and (4) of luggage and other items from Green’s Luggage and/or Telecredit, Inc. The indictments arose out of incidents which allegedly occurred on Sunday, March 9 and Monday, March 10, 1980. On motion of the State, the four indictments were consolidated for trial.

The record reveals that co-indictee Dorothy Collins and Elizabeth Campbell pleaded guilty to certain offenses, agreed to testify for the prosecution and agreed to make some restitution in exchange for the State’s recommendation to the court that the women be given probation and work release. Prior to trial, a motion in limine was made by defendant. This motion sought to preclude the State from introducing evidence of other crimes allegedly committed by defendant which were charged in other indictments. The court ruled that only those indictments in which it was charged that defendant was accompanied by a female would be admissible.

At trial, the State offered the testimony of George Dilley, an investigator with Visa Card Services, First National Bank of Chicago. Dilley stated that in February 1980 he became concerned with defendant Christopher Griffin and that he had occasion in his professional capacity to know defendant. After the court sustained objections to subsequent questions by the State, the State informed the court that it was offering Dilley’s testimony to show that Dilley went to the Chicago Police Department with a credit card application submitted by defendant and this would show why the State’s next witness, Investigator James Kehoe of the Chicago Police Department, was able to obtain an arrest warrant for defendant in March 1980 on charges other than those for which defendant was on trial in the instant case. The State maintained that its investigation following the March 1980 arrest uncovered evidence which resulted in the indictment in the instant case. Dilley continued his testimony and stated that on March 31, 1980, he was responsible for the issuance of an arrest warrant for defendant.

Investigator Kehoe testified that he arrested defendant on March 31 and recounted the circumstances of the arrest to the jury. Kehoe also stated that he arrested a James Buck who gave his name as “James Roosevelt” in connection with a fraudulent credit card application allegedly made by Buck. In addition to the two men, Kehoe took Elizabeth Campbell, who was also present at the time of the arrests, to police headquarters. According to Kehoe defendant was given his Miranda warnings at the time of the arrest and prior to any subsequent interrogation. Over objection of defendant, Kehoe testified about a conversation which he had with defendant which the State argued was a declaration against penal interest. According to Kehoe, defendant stated that he saw nothing wrong with using the name “Dr. Christopher Griffin” on credit card applications and that everyone lies on credit card applications and he also lied. Kehoe stated that as a result of a conversation with Campbell which was held in the presence of an assistant State’s Attorney, he was able to obtain a search warrant for Griffin’s McClurg Court apartment. As a result of that search, Kehoe stated that he found documents with the name “Dorothy Collins” and that through an investigation, he learned that Collins had a prior arrest record for theft. The court then instructed the prosecution to connect the March arrest with the indictment for the crimes for which defendant was on trial in the instant ease. Subsequently, Kehoe testified that as a result of his investigation of Dorothy Collins and defendant, defendant was indicted in May 1980 for the crimes herein and that Kehoe arrested defendant pursuant to a warrant.

Dorothy Collins testified to the circumstances surrounding her arrest and her plea agreement with the State. She described her first meeting with defendant and the circumstances of their relationship. Collins also testified about opening a checking account at a Chicago bank with defendant. Collins stated that defendant took her to Le-bolt’s Jewelry at Water Tower Place where a watch was purchased. Collins wrote a check in the amount of $2,464 at defendant’s direction. Lebolt’s utilized Telecheck, which was a check guarantee service. According to Collins, she did not have sufficient funds in her account to cover the purchase. Collins testified to a similar occurrence at Henry Kay Jewelers at Water Tower Place involving the purchase of a watch for $8,437. Henry Kay used J.B.S. Associates for check guarantees. Both of the foregoing occurred on Sunday, March 9, 1980, and, in both instances, payment on the checks was stopped.

Following the Henry Kay transaction, defendant and Collins went to Green’s Luggage at Water Tower Place. According to Collins, James Buck waited outside the store. Merchandise was selected by defendant and Collins was directed to write a check for the purchase. A salesperson requested check approval from Telecredit and was informed that the check approval was limited to $600. Defendant then returned some of the merchandise and Collins wrote a check for $562.86. Defendant gave the purchased goods to Buck. A photograph of Buck was shown to the jury.

The final incident occurred the following day on Monday, March 10. Collins accompanied defendant and James Buck to Holland Jewelers in North Riverside where defendant selected a ring. Collins brought the wrong checkbook. Griffin threatened Collins. They returned to the store in the evening with the correct checkbook and at defendant’s direction, Collins entered the store alone to make the purchase. After writing the check for $2,332, a clerk then called its check insurance company for approval. The clerk informed Collins that the store would not accept the check. Griffin then entered the store and after a telephone call to the vice-president by the store’s assistant manager, the check was accepted. Again, Collins stopped payment on the check.

The foregoing incidents were corroborated by the testimony of various individuals, including salespersons from the various establishments. The parties also stipulated that if representatives from the various check guarantors were called to testify, they would testify that payments were made on account of the checks on which payment was stopped. In closing argument, counsel for defendant argued that the items were purchased by Collins as gifts for defendant.

Defendant was found guilty by the jury of four counts of theft and four counts of conspiracy to commit theft. The court sentenced defendant to four terms of five years on each of the four indictments for theft and conspiracy, which terms were to be served consecutively. Defendant appeals.

Defendant first contends that the trial court’s comments to the jury about a plea bargain agreement between Dorothy Collins and the State was improper. During cross-examination of Collins concerning the agreement the court stated that “any and all agreements that this defendant — or this witness may have made has no bearing upon the charges pending on the defendant before the Bar.” After the court sustained an objection a question as to whether Collins was to receive probation, the court indicated to the jury that the agreement between Collins and the State is a suggestion to the court and that the court is not bound by any agreement and will make its own determination. According to defendant, the court’s comments restricted his right to effective cross-examination of witnesses. (See Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105; People v. Phillips (1981), 95 Ill. App. 3d 1013, 420 N.E.2d 837.) Defendant argues that the court’s comments diminished the impact of the State’s recommendations concerning Collins and that, as a result, Collins testimony was more credible. Defendant also suggests that the credibility of Elizabeth Campbell may have also been enhanced because of the court’s comments to the jury during Collins’ testimony.

The exposure of a witness’ motivation in testifying is a proper function of a defendant’s right to cross-examine. (Davis v. Alaska; People v. Thompson (1979), 75 Ill. App. 3d 901, 394 N.E.2d 422.) In reviewing the comments of the court, it appears that the court was merely attempting to clarify any confusion which may have resulted from defense counsel’s cross-examination of Collins. Unlike Davis v. Alaska and other cases cited by defendant, defendant herein was not precluded from cross-examination of a witness to disclose any possible motivation. The record reveals that defendant had adequate opportunity to cross-examine Collins concerning motivation. Any suggestion that the testimony of Elizabeth Collins was similarly affected because of the court’s comments is also rejected for the foregoing reasons. Compare People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708.

Defendant next contends that the trial court erred in giving to the jury a modified accomplice instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (1968) (hereinafter cited as IPI Criminal)), and in giving the jury a Federal instruction on aiding and abetting (E. Devitt & C. Blackmar, Federal Jury Practice and Instructions, No. 12.03 (3d ed. 1977)). IPI Criminal No. 3.17 was modified by the addition of the following sentence to the end of the instruction: “Material corroboration or direct contradiction of an accomplice’s testimony is entitled to great weight.” Defendant argues that by the addition of this sentence, “direct contradiction” is required before the jury may reject an accomplice’s testimony. As to the Federal instruction, defendant argues that a non-IPI instruction should only be given where the IPI instruction is inadequate. People v. Pates (1980), 80 Ill. App. 3d 1062, 400 N.E.2d 553, aff’d (1981), 84 Ill. 2d 82, 417 N.E.2d 618.

The final sentence of the modified IPI accomplice instruction is quoted from People v. Mentola (1971), 47 Ill. 2d 579, 583, 268 N.E.2d 8, 10. It merely informs the jury the weight to be assigned to testimony which materially corroborates or directly contradicts an accomplice’s testimony. It does not, as defendant suggests, require direct contradiction of an accomplice’s testimony in order for the jury to reject the testimony. Accordingly, we reject defendant’s arguments concerning the modified IPI instruction. As to defendant’s objection to the Federal instruction on aiding and abetting, the court read to the jury IPI Criminal No. 5.03, which deals with accountability. In this instruction, the words “aid” and “abet” are used. The Illinois Pattern Jury Instructions do not provide definitions for the two terms. The court may, in its discretion, give a non-IPI instruction where IPI instructions do not deal with a subject. (See People v. Blackwell (1979), 76 Ill. App. 3d 371, 394 N.E.2d 1329.) Under the circumstances of this case, we cannot say that the trial court abused its discretion in giving the Federal instruction on aiding and abetting since it defined those two terms for the jury as the terms were used in IPI Criminal No. 5.03.

Defendant next argues that error occurred during the State’s closing argument in which the prosecutor referred to a photograph of James Buck, who, Dorothy Collins testified, was present with Collins and defendant at various times. In referring to the Rogers Enterprises theft, the prosecutor stated that defendant threatened Collins and then directed Buck to enter the store. The prosecutor stated: “[T]ake a look at James Buck. That picture of him. And it will tell you what kind of man Mr. Griffin. Take a look at that young fellow. We have heard a lot of words about child, and adolescent, and take a ' look at James Buck’s picture. He should be out studying geography or political science, or something. He’s getting a course in the criminal justice system.” Defendant’s objection to the foregoing was sustained. Defendant argues that the statement to the jury is similar to telling the jury “you can tell a lot about the defendants by their friends” which was held to be error in People v. Carter (1979), 73 Ill. App. 3d 406, 392 N.E.2d 188. Defendant also argues that in People v. Hawkins (1972), 4 Ill. App. 3d 471, 281 N.E.2d 72, the court held that it was “plain error” where mug shots were introduced. In addition, defendant contends that it was error, despite defendant’s lack of objection, when the prosecutor stated: “Mr. Griffin thinks, if he’s so smart, he can make a sham out of this trial. He thinks he can con you ladies and gentlemen” because there was no conduct by defendant during trial which showed that defendant attempted to make a “sham” out of the trial or that he attempted to “con” the jury. Defendant also objects to the prosecution’s reference to the jury instructions to which he heretofore objected.

After the comment by the State during closing argument, the court promptly sustained defendant’s objection. Any prejudice which may have resulted from the comments was greatly diminished by the court’s sustaining of the objection. (See People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) In People v. Carter, cited by defendant, this court reversed defendant’s conviction on other grounds and commented that reference to defendant’s friends was improper because it attempted to persuade the jury to convict the defendant because of his associations and not because of the evidence. The comments made by the State in the instant case do not appear to be of the nature as those in Carter. In addition, Carter involved an attack on the credibility of defendant’s alibi witness. Finally, the prosecutor requested that the jury keep in mind the instruction dealing with an accomplice’s testimony. Since defense counsel failed to object to this comment, any error is deemed to be waived. See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.

Defendant next maintains that it was error to permit George Dilley of Visa Card Services and Investigator James Kehoe of the Chicago Police Department to testify about a prior arrest of defendant. Defendant contends that it is error to permit testimony concerning other arrests or crimes to be admitted. See People v. Hoffman (1948), 399 Ill. 57, 77 N.E.2d 195.

As a general rule, evidence of other crimes is inadmissible except to show, for example, motive, intent, knowledge or identity of a defendant. (People v. Cage (1966), 34 Ill. 2d 530, 216 N.E.2d 805.) In the instant case, the testimony of Kehoe and Dilley was proper since it related to the identification and arrest of defendant. (See People v. McShan (1975), 32 Ill. App. 3d 1068, 337 N.E.2d 263.) In addition, the testimony may be properly admitted as evidence of defendant’s modus operandi. (See People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Accordingly, we hold that there was no error in permitting the two witnesses to testify about a prior arrest of defendant.

Defendant next argues that error occurred through the introduction of an “excessive amount of other crimes” testimony of Elizabeth Campbell and other witnesses. As we previously indicated, testimony of other crimes is admissible only in limited instances. In the instant case, the jury was instructed that the other crimes evidence was to be considered for the limited purpose of showing defendant’s “identification, motive, intent, design or knowledge.” Defendant does not suggest that this evidence was admitted to establish a propensity for committing crimes, nor does it appear that the State introduced the evidence to show any propensity to commit crimes. (See People v. Dewey (1969), 42 Ill. 2d 148, 246 N.E.2d 232.) Under the circumstances of this case, there was no error in admitting the other crimes testimony for a limited purpose of showing defendant’s “identification, motive, intent, design or knowledge.” See People v. McDonald.

Defendant next urges that miscellaneous other errors at trial denied defendant his right to a fair trial. According to defendant, these miscellaneous other errors arose during the State’s opening statement and at other times during trial. The State argues, and we agree, that defendant has failed to preserve these miscellaneous errors for review because he did not include the same in his post-trial motion. People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070; People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Defendant argues that he was improperly convicted of both theft and conspiracy to commit theft and that the conspiracy convictions must be vacated. Defendant also argues that, four consecutive five-year sentences are excessive and improper under the facts of this case. He also maintains that he is entitled to a new sentencing hearing because the court could have considered the improper conspiracy convictions at the time defendant was sentenced. See People v. Filker (1981), 101 Ill. App. 3d 228, 427 N.E.2d 1311.

Initially, we note that the State has correctly conceded that the four conspiracy convictions must be vacated because it was improper for defendant to be convicted of both the inchoate offense and the principal offense. (People v. Walker (1981), 84 Ill. 2d 512, 419 N.E.2d 1167.) Defendant also requests that his sentences be altered to concurrent terms, rather than consecutive terms, of imprisonment. In People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884, the supreme court reaffirmed its “long-standing rule that absent an abuse of discretion by the trial court a sentence may not be altered’ upon review.” (See People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) It therefore is necessary to determine whether defendant’s sentence was an abuse of discretion.

Section 5 — 8—4(a) of the Unified Code of Corrections provides that the court shall determine at the time of sentencing for multiple offenses whether the sentences are to run concurrently or consecutively. (111. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(a).) Subsection (b) of section 5 — 8—4 provides that:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” (111. Rev. Stat. 1979, ch. 38, par. 1005-8-4(b).)

In construing the requirements of section 5 — 8—4(b), the supreme court stated that the record must show that the sentencing court is of the opinion that a consecutive sentence is necessary for the protection of the public. (People v. Pittman (1982), 93 Ill. 2d 169.) At the sentencing hearing, the court stated:

“[Defendant is] certainly a young man, but in a short period of life, adulthood, he has been able to circumvent the law. He has used people. He has taken advantage of people. He has used cunningly his abilities and they are of great abilities. I have seen a lot of people up here before me, but I would indicate that Mr. Griffin is an intelligent individual who fully is well aware of what he is doing. This is not a situation of an eighteen year old boy just out of the farm who is not aware of what he’s doing. That he’s only doing this because it’s a lark or because of the great need or desire or need because of funds or what have you. This man is a cunning man. He has used his wits. He has used his charm and he has abused the general public by using these matters. Certainly this is not a crime of passion. This is not a violent crime, but his conduct is such that as far as this Court is concerned, it can very well be construed as coming within the realm of taking advantage of people and using people for his own benefit and his own needs and desires, whatever they may be.”

After the court sentenced defendant to four consecutive five-year terms, the court stated:

“Now, the question of consecutive terms is to be imposed on this matter and was considered by this Court, but since all of the matters that were tried together although notwithstanding one jury heard it, it is the opinion of this Court that each matter could be tried separately and a verdict could be reached separately.”

Counsel for defendant stated that he thought that the sentence was wrong and that there was no justification for imposing a 20-year sentence for theft where a 20-year sentence is also the minimum sentence for murder.

As indicated in People v. Meints (1976), 41 Ill. App. 3d 215, 221, 355 N.E.2d 125, 130, Standard 3.4 of the American Bar Association Project on Minimum Standards for Criminal Justice stated that consecutive sentences are rarely appropriate. In People v. Zadel (1979), 69 Ill. App. 3d 681, 387 N.E.2d 1092, the court reiterated that consecutive sentences should be imposed sparingly. In appropriate circumstances, Illinois appellate courts have reduced a defendant’s sentence from consecutive terms to concurrent terms. In People v. Perry (1976), 38 Ill. App. 3d 81, 347 N.E.2d 340, defendant was convicted of unlawful use of weapons and unlawful possession of a firearm for failing to possess a firearm owner’s identification card. The court considered the nature and circumstances of the offenses and the history and character of defendant and, in concluding that defendant’s sentences should run concurrently, rather than consecutively, stated: “[W]e fail to see how the imposition of consecutive sentences would protect the public from further criminal conduct by the defendant.” (38 Ill. App. 3d 81, 87, 347 N.E.2d 340, 345.) In People v. Pace (1975), 34 Ill. App. 3d 440, 339 N.E.2d 785, defendant was convicted of attempt murder and aggravated battery. The court stated that although it considered the crimes to be brutal, consecutive sentences were not required to protect the public from further criminal conduct by the defendant. Similarly, in People v. Reno (1974), 17 Ill, App. 3d 348, 308 N.E.2d 3, the. defendant was- sentenced to consecutive terms for rape and aggravated battery. The court concluded that the record did not support the imposition of consecutive terms as being necessary for the protection of the public and reduced defendant’s sentences to concurrent, rather than consecutive, terms;

In light of the (1) nature and circumstances of the offenses herein and (2) the history and character of defendant, we cannot say that the basis for the imposition of consecutive sentences has been adequately set forth in the record so as to indicate that such a sentence is necessary to protect the public from further criminal conduct by defendant. The crimes herein were nonviolent and did not involve the use of a weapon. Additionally the offenses involved consensual transactions with four retail establishments. The presentence investigation report disclosed that, at the time of sentencing, defendant was 21 years of age and that he had completed 120 college credit hours- in-computer science. At the time of his arrest in May 1980, defendant was on parole for a violation of the Federal Firearms Act which involved submitting false information on an application for a firearm-permit. The record also revealed that defendant had been employed as a tailor from February 1979 until his arrest in May 1980.

In People v. DeSimone (1982), 108 Ill. App. 3d 1015, 439 N.E.2d 1311, the Second District of this court upheld the imposition of consecutive sentences as being necessary to protect the public from further criminal conduct by defendant. In that case, defendant was convicted of an exceptionally brutal attempt murder and armed robbery. In addition, defendant DeSimone’s past criminal record included a prior murder conviction. It is apparent that the elements warranting consecutive sentences in DeSimone are not present in the instant case.

We conclude that there are insufficient factors in the record, as required by the statute, to show that consecutive terms are necessary to protect the public from future criminal conduct by defendant and that consecutive terms for the four convictions was an abuse of discretion. Therefore, defendant’s sentences are modified and reduced to concurrent terms of imprisonment in accordance with section 5 — 8— 4(b).

As to defendant’s contention that he is entitled to a new sentencing hearing, the record does not indicate that the court considered the improper conspiracy convictions despite the fact that the mittimus re-fleeted that defendant was sentenced on both theft and conspiracy. See People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5.

As to defendant’s allegations of prosecutorial or judicial overreaching, the record is without support for this contention. Defendant also raises a new issue in his reply brief claiming reversible error was committed in the consolidation of the four indictments into one trial, which issue we shall not consider because the issue was not properly preserved for review. People v. Calhoun (1970), 46 Ill. 2d 60, 263 N.E.2d 69.

In addition, we have before us a motion by attorneys Joseph Ettinger and Ettinger & Schoenfield, Ltd., for an order exonerating the defendant’s appeal bond. This court has previously entered an order allowing said motion; however, the defendant has filed before us a motion to vacate the within order and said attorneys have filed a lengthy and detailed series of objections to said motion to vacate and defendant has filed a response to said motion to vacate. We find that these matters present complicated factual issues which should not be determined by this court on the basis of the affidavits alone. Consequently, our former order allowing exoneration of the bail bond as moved by attorneys Joseph Ettinger and Ettinger & Schoenfield is hereby vacated and the entire matter of the exoneration of the bail bond, and all objections thereto, and the disposition thereof, is remanded to the trial court for hearing and disposition with the direction that the trial court hear all necessary evidence and proceed to determine a proper and legal disposition of the bail funds.

Accordingly, the judgment of the circuit court of Cook County is affirmed in part, the conspiracy convictions are vacated and the sentences are modified and reduced to concurrent, rather than consecutive, terms. This cause is remanded to the trial court for the issuance of a corrected mittimus in accordance with this opinion and for disposition of the matter concerning the exoneration of the bail bond.

Affirmed in part; vacated in part; sentences reduced and remanded; motion remanded with directions.

GOLDBERG and McGLOON, JJ., concur.


author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES LAVAS, Defendant-Appellant.
    First District (1st Division)
    No. 81—1181
    Opinion filed February 7, 1983.
    — Rehearing denied March 28, 1983.
    James J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and Larry J. Crown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a jury trial, James Lavas (defendant) was convicted of aggravated battery and battery. He was found not guilty on two counts of armed robbery, two counts of armed violence, and three additional counts of aggravated battery. Defendant was sentenced to four years for aggravated battery and “up to one year” for battery, to run concurrently. Defendant appeals.

In their testimony, the two complainants corroborated each other on most important points. Both testified they were walking home together from a “gay disco” at about 3 a.m. on February 23, 1980. Complainant Lindblad testified he had previously injured his ankle. He leaned on complainant Bartczyzyn for support. Complainants were called by two men standing in a well-lighted gangway. One or both of these men directed obscenities to the complainants. These two men held metal rods or pipes. The men were identified as defendant and Joseph Ganshirt.

Ganshirt, an accomplice of defendant, testified for the State. After plea bargaining, Ganshirt pleaded guilty and was sentenced to the work release program for two months and to probation for four years.

After receiving threats, complainant Lindblad gave the defendant $10 or $11. Bartczyzyn told defendant he had only some change. Ganshirt struck at Bartczyzyn with his rod. Bartczyzyn blocked the blow and struck Ganshirt with his right hand. A car approached and Lindblad ran to the car. Defendant struck Bartczyzyn on the back of his head with a rod. The police arrived in a few minutes. Bartczyzyn was X-rayed at the hospital. Thirteen stitches were required for his head wound.

At a lineup in the police station, Bartczyzyn could not identify the defendant but still stated he thought defendant was one of his attackers. Lindblad saw defendant strike Bartczyzyn on the back of the head with a metal pipe. He identified defendant at the police lineup and in court.

The accomplice Ganshirt testified he was with defendant and three other men. They saw the two complainants. Defendant demanded money from the complainants. Defendant struck one of the complainants with a pipe. Ganshirt testified he did not see any money pass from one man to another.

The defendant called police investigator Paul. He conducted the lineup that night. Bartczyzyn could not positively identify defendant because he was too busy fighting off Ganshirt, the accomplice. Lindblad identified defendant without doubt. The officer also testified Ganshirt told him verbal advances of a sexual nature were made by the complainants.

Daniel Duran testified he was with defendant and Ganshirt. He saw defendant and Ganshirt confront the complainants. Ganshirt held a pipe but defendant was not armed. Ganshirt hit one of the complainants with a pipe. A scuffle started and the witness fled. He did not see any money change hands.

Defendant testified he was in the car with Ganshirt, Duran and three other people. Ganshirt left the car with a pipe in his hand. Defendant asked the other men to stop Ganshirt but no one cooperated. Defendant followed Ganshirt alone. Defendant was unarmed. Defendant asked Ganshirt to return to the car but the latter refused. Ganshirt then hit one of the complainants with a pipe. A fight ensued and defendant testified, “I just jumped on the guy, you know.” Defendant denied he hit any person with a pipe and denied he asked complainants for money.

I

Defendant urges inconsistency between the verdicts of acquittal and those of guilt. It is the settled law of Illinois that neither legal nor logical ■ consistency is required in the verdicts of a jury. The only issue is whether the verdict of guilt is properly supported by the evidence. We find this proposition firmly established in People v. Dawson (1975), 60 Ill. 2d 278, 280-81, 326 N.E.2d 755. Dawson has been followed by this court in a number of cases including People v. Harris (1982), 104 Ill. App. 3d 833, 840, 433 N.E.2d 343, People v. Brandstetter (1982), 103 Ill. App. 3d 259, 272, 430 N.E.2d 731, appeal denied (1982), 91 Ill. 2d 561, People v. Depper (1980), 89 Ill. App. 3d 135, 138, 411 N.E.2d 543, and People v. Johnson (1980), 87 Ill. App. 3d 306, 310, 409 N.E.2d 48. We reject defendant’s contention.

On the issue of reasonable doubt, the defendant in effect testified he was attempting to prevent the incident but he still remained to become an active participant in the fight. The testimony of the two complainants is strong and unimpeached and sufficient in itself to constitute proof of defendant’s guilt beyond a reasonable doubt. Also, the uncorroborated testimony of an accomplice is sufficient to convict. (People v. Wilson (1977), 66 Ill. 2d 346, 349, 362 N.E.2d 291.) This is true even though the accomplice testified he expected leniency. (People v. Brisbon (1980), 89 Ill. App. 3d 513, 526, 411 N.E.2d 956, ap peal denied (1981), 82 Ill. 2d 586, cert. denied (1981), 451 U.S. 990, 68 L. Ed. 2d 849, 101 S. Ct. 2328.) In the instant case the accessory testified he had received leniency. However, the testimony of the accomplice in the case before us is most strongly corroborated by the testimony of the two complainants and to a limited extent by defendant’s own testimony. A reviewing court should “not disturb the jury’s verdict of guilty unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” People v. Lewis (1981), 88 Ill. 2d 129, 151, 430 N.E.2d 1346.

The record before us convinces us strongly that the guilt of defendant of aggravated battery and battery has been entirely proved beyond reasonable doubt and to a moral certainty.

II

The trial court refused to allow introduction of defendant’s previous conviction for possession of a controlled substance. However the judge inadvertently read to the jury the following instruction to which the court had sustained defendant’s objection (Illinois Pattern Jury Instructions, Criminal, No. 3.13 (1968)):

“Evidence of the defendant’s previous conviction of a crime is to be considered by you only insofar as it may affect his credibility as a witness, and must not be considered by you as evidence of his guilt of the crime with which he is charged.”

Immediately after the jury retired for deliberations, counsel for defendant informed the trial judge of his error in reading the above quoted instruction. The judge took that instruction from the group of written instructions to be given the jury and made the following statement to the jury:

“Ladies and gentlemen, I am giving you the written instructions that I have along with the evidence; and you are instructed to follow the written instructions on the law as they are written here. If I misread -- and I might have because, you know, when you go through a number of instructions, it is very possible that I misread one of the instructions or read something to you that really isn’t here - but you follow the instructions as written in these forms. Okay.”

Defendant argues the reading of the refused instruction by the trial judge was prejudicial and constituted reversible error. We disagree.

In People v. Lewis (1979), 75 Ill. App. 3d 259, 286, 393 N.E.2d 1098, appeal denied (1979), 79 Ill. 2d 623, we held the inadvertent reading of an instruction which had been withdrawn by the prosecution, was harmless when only the proper instructions were given in writing to the jury before its deliberations.

In Lewis, we do not find that the trial court expressly admonished the jury to consider only the instructions as written. In Lewis, this court stated (75 Ill. App. 3d 259, 286):

“In the case at bar, the error in the reading of the instructions was corrected by the submission of correct, written instructions to the jury in the jury room. Thus, we find that the inadvertent reading of the instruction in question was harmless error.”

Following Lewis, in People v. Gomez (1980), 80 Ill. App. 3d 708, 399 N.E.2d 1368, appeal denied (1980), 81 Ill. 2d 585, the trial court inadvertently read to the jury an instruction which had been tendered by defendant but then withdrawn. No objection was made by defendant until the jury had begun to deliberate. The trial court immediately recalled the jury and admonished them that the instruction in question should be disregarded. Citing Lewis, this court held that the prompt action of the trial court “coupled with the fact that only correct, written instructions had been submitted to the jury renders this error harmless.” 80 Ill. App. 3d 708, 713.

Defendant cites People v. Wilson (1976), 43 Ill. App. 3d 583, 357 N.E.2d 81, appeal denied (1977), 65 Ill. 2d 579, and People v. McCauley (1972), 2 Ill. App. 3d 734, 277 N.E.2d 541. In Wilson, the trial judge failed to read the same limiting instruction regarding the defendant’s previous conviction which was read inadvertently in the case at bar. We reversed defendant’s conviction because “[t]here [was] nothing in the record which affirmatively show[ed] that [the proper instruction] did in fact go to the jury room.” 43 Ill. App. 3d 583, 585. See also People v. Lewis (1979), 75 Ill. App. 3d 259, 286.

In McCauley, defendant was charged with battery of a police officer. However, the jury was mistakenly instructed regarding the crimes of attempted escape, and resisting arrest. We held giving of the instructions regarding specific crimes for which defendant was not charged, was error. People v. McCauley (1972), 2 Ill. App. 3d 734, 736.

In the case at bar it is undisputed the trial judge gave only the proper written instructions to the jury. The jury was expressly admonished by the trial judge to consider only the instructions tendered them in written form, therefore, the case is distinguishable from Wilson and McCauley. We find no error in this regard.

Ill

Defendant contends the trial court erred in not allowing defendant to question the defense witness Daniel Duran concerning the reputation of a previous witness, Joseph Ganshirt, for truthfulness, and in not allowing Ganshirt to refresh his recollection with a police report.

While being cross-examined, Ganshirt was asked whether he had told Officer Paul that the fight ensued after complainants had made “verbal advances.” The witness replied he could not remember. Defense counsel was not allowed to show Ganshirt Officer Paul’s police report to refresh his recollection.

“The manner and mode of refreshing recollection is within the sound discretion of the trial court.” (People v. Black (1980), 84 Ill. App. 3d 1050, 1054, 406 N.E.2d 23.) The decision of the trial court will not be disturbed on review absent an abuse of discretion. People v. Van Dyk (1976), 40 Ill. App. 3d 275, 279, 352 N.E.2d 327, appeal denied (1976), 63 Ill. 2d 562.

We find no abuse of discretion here. The witness had no connection with the actual preparation of the report. The officer was unavailable to establish the veracity of the report. In any event, there could not have been prejudice to defendant. Police Investigator Paul testified later, and he related Ganshirt’s prior inconsistent statement. Therefore, the impeachment was perfected and was fully before the jury even without the witness having Ganshirt inspect the police report.

Similarly, the determination of a sufficient basis of knowledge of a reputation witness is within the discretion of the trial court. (People v. Bingham (1979), 75 Ill. App. 3d 418, 427, 394 N.E.2d 430.) In the case at bar, defendant did not make an offer of proof as to the specific basis of the witness’ knowledge of Ganshirt’s reputation. People v. Bingham (1979), 75 Ill. App. 3d 418, 428; see also People v. Dorff (1979), 77 Ill. App. 3d 882, 888, 396 N.E.2d 827, appeal denied (1980), 79 Ill. 2d 632.

In addition, this attempted impeachment of Ganshirt would have been strictly cumulative. “A trial court has the power to exclude evidence which is cumulative.” (People v. Aldridge (1981), 101 Ill. App. 3d 181, 185, 427 N.E.2d 1001, appeal denied (1982), 88 Ill. 2d 552.) Consequently we find no prejudice to defendant. Ganshirt was impeached extensively by defense counsel. The jury was aware of his criminal involvement in the instant crime, his admission of guilt, and his prior inconsistent statement to the police investigator. Furthermore, the jury was specifically instructed to scrutinize Ganshirt’s testimony with suspicion because of these factors. Testimony as to the witness’ general reputation for veracity would not significantly alter the jury’s impression of his testimony. The jury verdicts were eminently fair to defendant.

For these reasons it is ordered that the judgment appealed from is affirmed as regards the conviction for aggravated battery. We add that the maximum sentence for a simple battery, a Class A misdemeanor, is 364 days. (111. Rev. Stat. 1981, ch. 38, pars. 12 — 3, 1005 — 8—3.) We find the defendant was properly sentenced to only 364 days for this offense, concurrently. The mittimus herein shall be amended to read accordingly. As thus amended the conviction for battery is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE SULLIVAN

text:
    JOSEPH CARINI, JR., et al., Plaintiffs-Appellants, v. ALLSTATE INSURANCE CO. et al., Defendants-Appellees.
    First District (5th Division)
    No. 82—0937
    Opinion filed March 4, 1983.

      Ambrose & Cushing, P.C., of Chicago (Robert W. Cushing, of counsel), for appellants.
    Sonnenschein, Carlin, Nath & Rosenthal, of Chicago (Duane C. Quaini, Jeffrey P. Lennard, and Peter J. Valeta, of counsel), for appellees Allstate Insurance Co., Aetna Casualty & Surety Company of Illinois, Prudential Property & Casualty Insurance Co., United Services Auto Association, United States Fidelity & Guaranty Co., Royal Globe Insurance Co., Travelers Corp., Sentry Insurance of Illinois, Inc., Economy Fire & Casualty Co., and Kemper International Insurance Co.
    Schiff, Hardin & Waite, of Chicago (Richard M. Seligman and Walter C. Greenough, of counsel), for appellee Prestige Casualty Co.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Wyatt Jacobs, Barry L. Kroll, and Lloyd E. Williams, Jr., of counsel), for appellee Inter-Insurance Exchange of the Chicago Motor Club.
    Sidley & Austin, of Chicago (James R. Stinson and Michael R. Blankshain, of counsel), for appellee Security Mutual Casualty Co.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Plaintiffs appeal from an order dismissing with prejudice their class action to recover automobile insurance premiums paid for uninsured motorist and medical payments benefits under policies covering multiple vehicles. The sole issue for review is whether their complaint states a cause of action.

Each of the plaintiffs purchased from one or more of the defendants an automobile insurance policy which covered two or more vehicles. Their complaint alleges that each policy provided for medical payments and uninsured motorist coverage; that defendants charged additional premiums for this coverage on each additional automobile insured under the policy; and that defendants have effectively limited their liability for medical payment or uninsured motorist coverage to the limits of a single coverage, despite the payment of multiple premiums, by inclusion of the following provision in each policy:

“With respect to any occurrence, accident, death or loss to which this and any other automobile insurance policy issued to the Named Insured by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one such policy.”

The complaint further alleges that the validity of this provision, commonly called an antistacking clause, has been upheld by our courts, and defendants are therefore collecting premiums for additional coverage which is not in fact provided; and that such action is deceitful and fraudulent.

The trial court, relying solely on Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539, dismissed the complaint for failure to state a cause of action, and this appeal followed.

Opinion

Plaintiffs’ sole contention is that their complaint does state a cause of action. Therefore, we must determine whether the factual allegations of the complaint, when interpreted in the light most favorable to plaintiffs, sufficiently set forth the essential elements of a cause of action (Heritage/Pullman Bank & Trust Co. v. State Farm Fire & Casualty Co. (1982), 104 Ill. App. 3d 1058, 433 N.E.2d 1034), bearing in mind that a motion to dismiss admits all well-pleaded facts (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253) but does not admit “conclusions of law or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest” (Tru-Link Fence Co. v. Reuben H. Donnelley Corp. (1982), 104 Ill. App. 3d 745, 748, 432 N.E.2d 1188, 1191).

The premise underlying plaintiffs’ complaint is that by virtue of the antistacking clause, no additional coverage is provided in the policies for the additional premiums paid (for automobiles other than the first) in multiple vehicle policies. A similar assertion was rejected by the supreme court in Menke v. Country Mutual Insurance Co. (1980), 78 Ill. 2d 420, 401 N.E.2d 539, when it considered whether a clause which effectively precluded stacking of uninsured motorist coverage contravened public policy. There, the plaintiff sought to recover uninsured motorist benefits under three policies issued by a single insurer. Each policy contained a limitation identical to the provision in the instant action, and the plaintiff contended that its enforcement was against public policy because he had paid separate premiums for each vehicle. The court, in rejecting this argument, noted that “[pjlaintiff concedes that it was reasonable to charge him something for the administrative work in writing the additional coverage and *** he has received some additional coverage for passengers who are not members of his household and would therefore not be covered by the original policy.” 78 Ill. 2d 420, 425-26, 401 N.E. 2d 539, 542.

Plaintiffs argue that the instant case is distinguishable because, unlike the plaintiff in Menke, they do not concede that some benefit was received from the additional premiums paid. However, plaintiffs offer no explanation as to how their situation differs from that in Menke, nor does their complaint allege that, because the anti-stacking limitation clause is effective, they receive no benefit from those premiums. Rather, it is alleged that defendants collected additional premiums for medical payments and uninsured motorist coverage but were providing such coverage only on the first policy. However, we have recognized that the increased risk to the insurer which results when multiple cars are on the road may justify charging additional premiums. Hanover Insurance Co. v. Cormack (1979), 78 Ill. App. 3d 368, 396 N.E.2d 1076; Otto v. Allstate Insurance Co. (1971), 2 Ill. App. 3d 58, 275 N.E.2d 766.

Plaintiffs further assert that they should not be precluded from showing the factual context; that is, that they were promised additional coverage which they are not receiving. The complaint, however, does not allege the existence of any agreement or promises other than those contained in the contracts attached thereto, and, as noted in Menke, “[t]he intent of the defendant insurance company and the manifest intent of the plaintiff are clearly expressed in the unambiguous language of the antistacking clause.” (78 Ill. 2d 420, 425, 401 N.E.2d 539, 542.) Thus, in construing a limitation clause identical to the provision in the instant case, the court rejected the argument that the plaintiff understood or intended that he was to receive multiple coverage. “[T]he existence of any such subjective intent of the plaintiff is rebutted by the clear and unambiguous policy language from which it can be readily seen and understood that coverage was limited.” (78 Ill. 2d 420, 425, 401 N.E.2d 539, 542.) Similarly, here, the language of the contracts tell us what was promised, and each contains a clear, unambiguous limitation of coverage to which plaintiffs agreed. Plaintiffs do not allege in their complaint that other, contradictory promises were made.

Finally, plaintiffs maintain that we must apply the “premium rule” as articulated in Westchester Fire Insurance Co. v. Industrial Fire & Casualty Insurance Co. (1978), 58 Ill. App. 3d 439, 444, 374 N.E.2d 779, 782, rev’d (1978), 71 Ill. 2d 622, 401 N.E.2d 1391, which states that “it is more just that the insured who has paid a premium should get all he paid for rather than that the insurer should escape liability for that for which it collected a premium.” Plaintiffs posit from this that if no coverage is provided, no premium was intended, and the insured is entitled to a refund. We need not consider the validity of plaintiffs’ proposed corollary to the “premium rule,” for the supreme court has rejected any per se rule with the statement:

“Finally, we are not persuaded by the contention that plaintiff, having paid a premium for uninsured motorist coverage, is therefore entitled to recover. This policy, like all others, is a contract between the company and the policyholder, the benefits of which are determined by the terms of the policy purchased insofar as those terms are not contrary to public policy.” (Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 513, 386 N.E.2d 36, 38.)

In this light, subsequent decisions have viewed the “premium rule” as a rule of construction to be applied when an insurance contract is ambiguous as to the coverage intended. (Maid v. Illinois Farmers Insurance Co. (1981), 101 Ill. App. 3d 1065, 428 N.E.2d 1139; Sharples v. General Casualty Co. (1980), 85 Ill. App. 3d 899, 407 N.E.2d 674.) Since the issue before us does not involve the construction of an ambiguous insurance contract, the premium rule has no relevance.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

MEJDA and O'CONNOR, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v EDWARD J. MALIK, Defendant-Appellant.
    Fourth District
    No. 4—82—0481
    Opinion filed March 9, 1983.

      Charles McRae Leonhard, of Allen & Korkowski & Associates, of Rantoul, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and John M. Wood, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns section 11 — 501 of the Illinois Vehicle Code (111. Rev. Stat. 1981, eh. 95V2, par. 11 — 501), which provides that one who drives a motor vehicle in this State shall be guilty of a Class A misdemeanor if one drives while (1) having an “alcohol concentration” of the breath or blood of .10 or more as defined in section 11 — 501.2 of the Act (111. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.2), or (2) being under the influence of alcohol. Section 11 — 501.2(a)5 states:

“Alcohol concentration shall mean either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.”

Defendant, Edward J. Malik, appeals (1) judgments of convictions of both the foregoing offenses entered June 10, 1982, after a jury trial in the circuit court of Champaign County, and (2) concurrent sentences of 120 days’ imprisonment imposed July 15, 1982, for those convictions. He asserts: (1) the court erred in instructing the jury as to a purported presumption concerning the driving under the influence charge; (2) the evidence was insufficient to prove the driving with a .10 or greater concentration of alcohol charge; (3) the issues instruction as to the latter charge was faulty; (4) the court erred in refusing to sever the two charges for trial; and (5) the court abused its discretion in imposing such a severe sentence.

The defendant also maintains that the conviction and sentence for driving with an impermissible concentration of alcohol cannot stand if the other conviction stands. Both offenses arose from the same act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The State agrees that both convictions cannot stand. However, for reasons stated later we deem it appropriate to set aside the driving under the influence conviction and let the other conviction stand. Both offenses are Class A misdemeanors. As we also explain later, we conclude that neither side will be prejudiced by this result.

The evidence at trial was not in serious dispute. A police officer testified to seeing defendant driving a vehicle on a city street at 8:20 p.m. on March 3, 1982. The vehicle did not have its headlights on. As the vehicle entered a grocery store parking lot, the officer approached the vehicle. The officer testified that as the defendant alighted from the vehicle, defendant’s pants were unzipped and hanging about his waist in a disheveled manner and as defendant left his car, he lost his balance. Defendant testified he slipped because of ice underfoot. When the officer asked defendant for his driver’s license, defendant was unable to produce it from his billfold, although, according to the officer, defendant passed it several times in shuffling through his papers. The officer described defendant’s speech as slurred and stated that defendant again lost his balance when he was placed under arrest and told to put his hands on the top of the squad car.

Defendant was taken to a police station where, upon climbing some steps, he fell into a snowbank. Subsequently, defendant agreed to submit to a breathalyzer test which was administered at 9:18 p.m. by a licensed breathalyzer operator. The results of the tests indicated that defendant had a level of .20 concentration of alcohol in his blood at the time of the test. Defendant admitted that since 4:10 p.m. that afternoon he had consumed between eight and 11 ten-ounce cans of beer and two or more mugs of beer at fairly evenly spaced intervals.

Defendant’s first claim of error concerns section 11 — 501.2(b) of the Illinois Vehicle Code which, at all times pertinent, stated:

“Upon the trial of any *** criminal action *** arising out of acts alleged to have been committed by any person while driving *** a vehicle while under the influence of alcohol, the concentration of alcohol in the person’s blood or breath at the time alleged as shown by analysis of the person’s *** breath *** shall give rise to the following presumptions;
* * *
(3) If there was at that time an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol.” 111. Rev. Stat. 1981, ch. 95V2, par. 11— 501.2(b).

Over objection by the defendant the court instructed the jury as follows:

“With respect to the charge of Driving Under the Influence of Alcohol, if you find beyond a reasonable doubt that the amount of alcohol in the defendant’s blood as shown by a chemical analysis of his breath was .10 percent or more by weight of alcohol, you shall presume that the defendant was under the influence of alcohol.”

The instruction was in the form of Illinois Pattern Jury Instruction, Criminal, No. 23.06 (2d ed. 1981). It differed from that instruction only in that it required the amount of alcohol in the blood to be found “beyond a reasonable doubt” while the pattern instruction only requires that the jury “find” the required amount.

Asserting it was a proper instruction concerning the presumption of section 11 — 501.2(b), defendant tendered and the court refused the following instruction:

“If you find beyond a reasonable doubt that the concentration of alcohol in the defendant’s breath while driving a vehicle was .10 grams of alcohol per 210 liters of breath or more you may infer that the defendant was under the influence of alcohol.
You never are required to make this inference. It is for the jury to determine whether the inference should be drawn. The inference is not alone sufficient to prove beyond a reasonable doubt that the defendant was under the influence of alcohol.
You may take into consideration any other evidence in determining whether or not the defendant was under the influence of alcohol.”

An analysis of the application of presumptions and inferences in criminal cases has been made by the United States Supreme Court in Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450, and County Court v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213, and by the Illinois Supreme Court in People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151. We need not repeat that analysis here. The parties agree that the presumption of section 11 — 501.2(b) is intended to be and can only be justified as a permissive presumption. However, the first paragraph of the given instruction informs the jury it “shall presume” the defendant was intoxicated if the defendant was shown to have the required concentration of alcohol in his breath or blood. This conforms to the statutory language, but implies a mandatory presumption.

The second paragraph of the given instruction does indicate that the presumption is permissive. However, the contradiction between the two paragraphs raises at least a close question as to whether the jury might be so confused as to think the presumption was either mandatory or such as to place a burden on the defendant to prove his sobriety. Sandstrom.

The tendered instruction also is of questionable accuracy in that it does not require the jury to find that the concentration of .10 or more alcohol occurred at the time the defendant was driving. Section 11— 501.2(b) clearly states that the presumption (1) is to be offered in a trial of a criminal action “*** arising out of acts alleged to have been committed by any person while driving *** a vehicle,” (2) concerns the concentration of alcohol “at the time alleged,” and (3) arises if the concentration of .10 or more existed “at that time.” (Emphasis added.) 111. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.2(b).

As to both points in which we have questioned the given instruction, it conformed to IPI Criminal No. 23.06. Rather than pass upon the propriety of that instruction, we choose to set aside the conviction for the offense to which the instruction was addressed and to let stand the conviction for driving while having a concentration of alcohol of .10 or more.

The question of the sufficiency of the evidence to support the conviction we let stand centers upon the connection between the results of the breathalyzer test and the condition of defendant’s breath and blood at the time he was driving. Defendant refers to a recognized text on forensic medicine which addresses the problems involved in making that connection. The text states:

“If, on the other hand, the event occurred during the period of absorption, the blood alcohol content determined even less than an hour later may be found to be much higher than that at the time of the event. The amount of difference will depend on the time between the drinking, the event, and the test. If the event occurred very shortly after drinking and the test some time later, the difference will be greatest. For example, if a driver is involved in an accident about fifteen minutes after drinking and is tested about forty-five minutes later, the alcohol content of his blood at the time of testing may be more than twice as great as that existing at the time of the accident. A valid estimation of the blood alcohol content prevailing at the time of an event can be made from a subsequent chemical test only if knowledge as to when the drinking occurred justifies it.” 4 Gray, Attorney’s Textbook of Medicine par. 133.24 (3d ed. 1982).

The evidence here showed that approximately one hour had elapsed between the time defendant was driving and the time of the test. By his own admission, defendant had been drinking alcoholic beverages in some quantity over a four-hour period prior to his last act of driving which occurred just prior to his arrest. The test results indicated that at the time of his testing he had twice the alcoholic content permissible for him to have had at the time of driving. The evidence of defendant’s intoxication at the time he was driving was substantial.' That evidence would corroborate a theory that he had a somewhat similar alcohol concentration when driving as he did one hour later. The evidence was sufficient for the jury to have found beyond a reasonable doubt that the defendant had at least a .10 concentration of alcohol at the time of his driving.

The form of the issues instruction as to the offense of driving with an alcohol concentration of .10 or more was a matter of contention at trial. For the first time, on appeal the question is raised as to whether- the instruction inadvertently told the jury that it should find the defendant guilty if “any one” of the propositions required to be proved by the State had been proved beyond a reasonable doubt. Indisputably, all of the propositions had to be proved in order to prove defendant’s guilt. The record originally filed contained only the copies of the tendered instructions. The report of proceedings indicates that the instruction given was designated “Court’s Instruction #1.” With the copies of the instructions in the common law record is an instruction designated as “Court’s Instruction #1.” The document contains the disputed language, i.e., “any one.”

However, at our direction, the record has been supplemented by documents certified by the clerk as the given instructions. The instructions do not have any indication on the margin to show that they were given as is required by section 67 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 67), now section 2 — 1107 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 1107). Nevertheless, we conclude that the documents certified contain the given instructions. The only issues instruction in the group on the charge in question is in the form of the “Court’s Instruction #1.” This instruction is the same as that referred to, except that where the words “any one” appeared in the copy those words have been removed and in a spot whiter than the rest of the page appears the word “each.” We thus conclude that the instruction given to the jury was in proper form.

There was no merit in the motion for severance at the time it was made. The offenses arose out of the same act and involved the same proof. Although neither is an included offense of the other, the evidence could be such that a trier of fact would find that the accused had a .10 concentration of alcohol at the time he was driving, but was not under the influence of alcohol. The trier of fact would then be rejecting the permissive presumption we have discussed, yet find the defendant guilty of the other charge. The charges should logically be tried together.

A more serious question is presented as to whether, assuming arguendo that the instruction given on the presumption was error, that error tainted the guilty verdict on the driving with a .10 or greater concentration of alcohol charge. We conclude that it did not. The instruction clearly stated that it was applicable to the driving under the influence charge. By its very terms, the presumption was not of aid to the proof of the other charge. The prosecutor clearly told the jury in closing argument that the charges were separate. The jury was clearly instructed that proof of the existence of a .10 concentration of alcohol at the time of driving was necessary to prove the charge based upon the existence of the alcohol concentration.

The case differs from People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496, cited by defendant. There, a defendant charged with robbery and armed robbery was also tried at the same time for unlawful use of weapons. Proof of the latter offense required proof of a prior conviction. As the practice at that time required proof of the prior conviction to be made to the jury, the supreme court held that denial of a severance was error because of the prejudice to the defendant as to the robbery charges due to the proof of the prior conviction. Here, no evidence was presented on the driving under the influence charge which was prejudicial to defendant’s defense of the other charge.

We reject defendant’s request that his sentence be reduced or that the case be remanded for resentencing. The evidence at sentencing showed that defendant had been convicted of driving under the influence of alcohol in 1969 and of reckless driving in 1977 without any incarceration being imposed as punishment. Part of his 1977 sentence for reckless driving required that he attend a school for persons who had' problems with alcohol. After defendant’s completion of that course, the institution running the course issued a report containing a diagnosis that his condition was only fair. Although incarceration would disrupt the defendant’s life and place hardship on his family, the court did not abuse its discretion in imposing a sentence more severe than that which had been insufficient in the past from deterring defendant. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

The reversal of defendant’s conviction for driving under the influence of alcohol,does not require resentencing. The trial court stated that it recognized that one or the other of defendant’s convictions would have to be set aside. The court refused to do so because, considering the newness of section 11 — 501 which provides for the two offenses charged, the court deemed a court of review to be the appropriate court to make that decision. The case differs from People v. Bone (1982), 103 Ill. App. 3d 1066, 432 N.E.2d 329, and People v. Davis (1981), 95 Ill. App. 3d 161, 419 N.E.2d 682, where the reviewing court could not tell whether a sentence was imposed upon the basis of an additional conviction of the defendant which was later set aside.

Defendant’s conviction for driving while having an alcohol concentration of .10 or more and the sentence imposed thereon are affirmed. Defendant’s conviction of the offense of driving under the influence of alcohol and the sentence imposed thereon are reversed.

Affirmed in part, reversed in part.

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