author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene H. Westphal, Defendant-Appellant.
    (No. 71-22;
    Second District
    September 17, 1971.
    E. Roger Horsky, of Illinois Defender Project, of Elgin, for appellant.
    William B. Petty, State’s Attorney, of Mt. Carroll, for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    Harold J. Carneke et al., Plaintiffs-Appellees, v. Lawrence Kietrys et al., Defendants-Appellants.
    (No. 71-31;
    Second District
    September 23, 1971.
    Diver, Ridge, Brydges & Bollman, of Waukegan, (Robert M. Bollman, of counsel,) for appellants.
    Richard J. Smith, of Waukegan, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an appeal from a declaratory judgment suit in which the trial court found for the plaintiffs-appellees. The case was heard upon a stipulation of facts.

The plaintiffs, owners of the property involved, went to W. T. Markow for the purpose of borrowing $10,000. The plaintiffs had previously borrowed money from Markow. The plaintiffs executed an installment note in the office of Markow payable to bearer in the sum of $10,000 secured by a trust deed to the Chicago Title & Trust Company. Markow received the $10,000 from the defendant, Lawrence Kietrys. From the proceeds of the $10,000 Markow was to pay off the encumbrance on their residence. The plaintiffs did not know that Kietrys provided the money and did not meet him until subsequent to the death of Mr. Markow. Markow paid off obligations in the sum of $4669.92; one of the obligations to be paid off was the first mortgage to the Schwandt Realty Company. Markow did not pay off the Schwandt Realty Company mortgage but made payments on account. At tire death of Mr. Markow it was disclosed that there was a balance due on the Schwandt Realty Company mortgage of $4946.76 together with interest. Kietrys aUowed Markow to coUect the monthly installments for which he paid the sum of fifty cents a month. The amount of the payments on the $10,000 Kietrys mortgage had reduced the principal from $10,000 to $8659.98 at the time of the death of Mr. Markow.

The trial court found that Markow was the agent of the defendant Kietrys. The court further found that the shortage of $5,330.08 should be deducted from the amount due Kietrys on his mortgage. The defendant Kietrys appealed.

The question before this court is whether or not Markow was an agent of either the borrower or the lender. The borrowers went to Markow and received the money from him in exchange for a trust deed note. They thought they were dealing with Markow as the principal and that the $10,000 was Markow’s funds. At no time did they know that Kietrys was in fact the owner of the note and mortgage. Markow retained the note upon which he marked the payments made by the Carnekes, the borrowers.

At the outset, it is the opinion of this court that Markow was not the agent of the borrowers. The question then arises whether or not Markow was the agent of the lender Kietrys, the appellant.

Three cases have been cited by counsel which appear to be controlling. (Brenner v. Franke (1958), 18 Ill.App.2d 202, 151 N.E.2d 650.) The defendants therein, the Frankes went to the office of one Ed P. Pietri who was conducting a comparable business to that of Markow in this case, and gave him their note and mortgage for $6000 payable to one Dungey, an associate in the Pietri agency. The lenders, that is, the Brenners, had purchased mortgages from Pietri during his lifetime.

Apparently Dungey embezzled the funds and died. The court held that the dealings of both parties with the Pietri agency and Dungey were arm’s length transactions. The court further held that the mortgagors gave Dungey the note and mortgage to sell and that the basic problem was whether the plaintiff lenders had a duty to see that the $6000 was properly applied by Dungey whom the court held to be the broker for the mortgagors. The court said at page 653:

“Where one of two innocent parties must suffer the loss must faU on the one who makes the loss possible or whose agent occasioned the loss, [citation.]”

This court does not believe that the facts in Brenner v. Franke, supra, are similar to the facts in the instant case.

In Hade v. Jontz (1969), 114 Ill.App.2d 120, 252 N.E.2d 401, a somewhat similar situation took place. The defendants there being the bor rowers went to one Spaulding to borrow $8500. The plaintiffs Hade gave the sum of $8500 to Spaulding. Spaulding was convicted of forgery and embezzlement, sentenced to the penitentiary, and disbarred apparently for embezzling the proceeds of the loan. The defendants in this case at no time knew the identity of the lenders. The court there held that Spaulding was the agent for the plaintiff lenders for the purpose of accepting payments from the defendants, and held that the case was indistinguishable from Hoiden v. Kohout (1956), 12 Ill.App.2d 161, 138 N.E.2d 852. The court said at page 403:

“Plaintiffs had made other loans through Spaulding and the evidence relating to the course of conduct was sufficient to warrant the conclusion that Spaulding was the plaintiff’s agent. Defendants, on the other hand, at no time knew of the interest of plaintiffs and were quite justified in making payments to Spaulding * *

The court went on to say

“As between two innocent parties, one of whom must sustain a loss occasioned by the wrongdoing of a third party, the loss must be sustained by that party who could have prevented the loss, in the instant case plaintiffs.”

In Hoiden v. Kohout, supra, the Kohouts went to one Sykora seeking a loan. A loan was made for $5000. It appears that Emily Hoiden had purchased mortgages from Sykora over a period of years and she had no personal contact as lender with the borrowers. Sykora absconded. The court in that case at page 854 said:

“The practice of holders of bearer notes remaining unknown to borrowers is by no means uncommon in this community. It means, however, that the note holder must create an agency. In this case, as in many others, the mortgage dealer and trustee was the agent. The inevitable conclusion from the uncontroverted testimony is that plaintiff knew and approved of Sykora’s receiving payments of principal and interest from borrowers * *

The court went on to say that Sykora was proven to be the agent of the lender and that payment to a duly authorized agent is payment to the principal.

We believe that the decisions in Hade v. Jontz, supra, and Hoiden v. Kohout, supra, are controlling. In the instant case the borrowers went to Markow believing that he was loaning them the $10,000 while as a matter of fact Markow had received the sum of $10,000 from Kietrys, the lender. In this respect this case is most comparable to Hade v. Jontz, supra and Hoiden v. Kohout, supra, and if anything, more persuasive that Markow was in fact the agent of Kietrys for the purpose of collecting the loan Kietrys had made for which he paid Markow a small commission for so doing. There is no question but that Schwandt Realty Company has an existing first mortgage upon which they are entitled to be paid the balance due. Inasmuch as we have held that Markow was the agent of Kietrys it was his duty as agent on behalf of Kietrys to see that the first morageg was paid. As the trial court held after deducting the shortage of $5,530.08, occasioned by Markow, the agent of Kietrys, the amount due on the Kietrys’ mortgage of $10,000 was tire principle sum of $4,669.92.

The judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Steven Rogall, a Minor, Plaintiff-Appellee, v. Feed Kischer, Jr., Defendant-Appellant.
    (No. 70-249;
    Second District
    August 30, 1971.

      Rehearing denied October 20, 1971.

      Craig & Craig, Jack E. Horsley, and Richard F. Record, Jr., all of Mattoon, and Charley Popejoy, of Wheaton, for appellant.
    Fred Lambruschi and Ralph Gabric, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff, eleven years old at the time, suffered severe brain injuries as a result of an accident which occurred near the corner of North and Fern-dale Avenues in Elmhurst. A jury trial resulted in a $230,000 verdict. The jury, by special interrogatories, found defendant guilty of negligence, the proximate cause of the accident, and plaintiff not guilty of contributory negligence.

Defendant appeals, contending: (1) that plaintiff failed to establish a prima facie case and a directed verdict or a judgment n.o.v. should have been entered in his favor, and (2) that several errors occurred during the trial, any one of which necessitates a new trial.

The site of the accident is a T-shaped intersection at which Ferndale, a residential street, begins and extends northward from North Avenue, a heavily travelled, four-lane, east-west route which has a speed limit of 35 miles per hour. The intersection has no marked crosswalk and no stop lights. The accident occurred at approximately 7:00 P.M. on the evening of August 10, 1964. The weather was clear and visibility good; traffic was intermittent. Plaintiff, along with three other boys, ages 13 and 14, and a 2-year-old-girl, approached the intersection after leaving a small grocery store a few yards to the southeast. The boys had agreed to an evening football game but were going home first. When they reached a point near what would have been the southeast corner of the intersection had Ferndale extended on southward, the children divided into two groups. Two of the boys, David Sampson and Roger Barwis, walked west on the south side of North Avenue in order to cross at Shady Lane, another T-shaped intersection a short distance away. Plaintiff and Steve Barloga and Barloga ’s 2-year old niece, remained to cross at the intersection.

Defendant and his wife approached the intersection by turning east onto North Avenue from Route 83. The intersection of North and Route 83 is controlled by stop lights and is 1200 feet east of Ferndale. Defendant was driving a Karmann Ghia and was on his way to visit his hospitalized brother. He and his wife were not supposed to arrive at the hospital at any particular time. The Route 83 stop light being green, defendant did not stop prior to turning left onto North Avenue. As defendant approached the Ferndale intersection, his wife screamed and defendant saw plaintiff running across North Avenue from the south. The boy hit the right front side of defendant’s automobile, and cracked the portion of its windshield which curved around to the right side of the car. The lower portion of the right front fender of the automobile was also slightly damaged. Plaintiff has no memory of the incident. At the time of the trial, Barloga was stated to be in military service and not available to testify.

The trial was lengthy and defendant asserts the occurrence of numerous errors.

For clarity, the remainder of the factual statement and the opinion shall be set forth in two sections, separately considering:

I. Motions for a directed verdict, judgment n.o.v. and the contention that the verdict was against the manifest weight of the evidence, and
II. Defendants objections to certain events which occurred during the conduct of the trial.

I

Fred Kischer, Jr., defendant, testifying in his own behalf and under section 60 of the Civil Practice Act:

“My auto was in good operating condition at the time of the accident. I was operating the vehicle in third gear. At the time of the deposition I said I was unsure of what gear the automobile was in. When the boy hit my car I was travelling 20 miles per hour. The highest speed I obtained on North Avenue prior to impact was 20 to 24 miles per hour. At all times my automobile remained in the inside eastbound lane. There was another automobile travelling in the inside lane about 200 feet in front of my car. There was another automobile ahead of me in the outside lane and travelling about 20 miles per hour. In my deposition I said this automobile was about 40 feet in front of me but now I do not remember the distance it was ahead of me. A Thunderbird was approximately 150 feet behind me. I first saw the child when my wife screamed. My attention was called to the boy by my wife screaming. He was running to the north approximately 15 feet ahead of me and one foot past the center of the outside eastbound lane when I first saw him. I saw no other children around the intersection. I stopped my vehicle after he hit me in the inside lane. I was able to stop almost immediately — within 10 feet of the point of impact. When I applied the brakes I did not make an emergency stop. I just stopped. In my deposition I said I applied my brakes in an emergency fashion. During the deposition I placed my initials and mark on a photograph showing the point of impact to be at the center of the intersection.”

Ruby Kischer, testifying for the defendant:

“I am the wife of the defendant. The automobile was travelling 20 miles per hour at the point of impact. In my deposition I said the vehicle was travelling 30 miles per hour. I don’t know how far in front of our car the boy was when I first saw him, but he was in the middle of the outside lane. My husband did not sound the horn at the time of the occurrence. We stopped gradually. I was not talking to my husband at the time of the occurrence. In my deposition I said that I did not know whether I was talking to him at the time of the accident. The car travelled a short distance before stopping. In my deposition I said 20 feet.”

Alfonso Martinez, testifying for the plaintiff:

“At the time of the accident I was driving a 1955 Thunderbird with a white top and a green bottom. I was going 40 miles per hour in an easterly direction on North Avenue. Defendant was also travelling 40 miles per hour. At the time of the accident I was asked by police officers to write down what had occurred. I said in this report that defendant was not speeding. The reason I said he was not speeding, “I knew this man was in quite a bit of trouble the way it was by hitting the little boy, and I didn’t want to get him into more trouble by stating that he had been speeding.” I was speeding also. I saw no brake light on defendant’s automobile. In my deposition I said defendant was travelling 31 to 39 miles per hour. At the time of the accident the speed limit on North Avenue was 30 miles per hour. I observed three children on the south side of the street. There was an Oldsmobile in the outside lane and somewhat ahead of defendant’s automobile. All of the children originally started into the street, but two of them stopped and turned around and ran back. I saw the boy hit the automobile. It is my opinion that the Oldsmobile “could have been blocking” defendant’s view and that the children ran into the street immediately after the Oldsmobile had passed. When the boy was hit he was thrown between 45 and 50 feet from the point of impact. He landed 20 to 30 feet from the cross walk. In my statement to the police I wrote the boy had fallen only 5 feet from the point of impact.”

David Sampson, testifying for the plaintiff:

“I was 14 years old at the time of the accident and am 19 now. Roger Barwis and I were walking along the south side of North Avenue. I noticed an automobile traveling at a higher rate of speed than I was used to seeing.” Even though I was 14,1 was familiar with automobiles and could judge the speed of them. I had driven them but not on the highway. It is my estimation that the Karman Ghia was going 40 to 45 miles per horn, was in a low gear, and was accellerating. I mentioned the speed of the vehicle to Barwis and he said that he noticed it also. I did not see the accident. I heard brakes screach. When I arrived a short time afterwards, plaintiff was lying 20 to 25 feet east of the intersection. I did not mention the excessive speed of the Karman Ghia to the police at the time of the accident. The grocery store is 30 feet to the southeast of the intersection and when our group separated we had walked northwesterly to the southeast corner of the intersection. I saw some skid marks near the accident but I cannot identify them as being from the Karman Ghia.”

Roger Barwis, testifying for the plaintiff:

“I was 13 years old at the time of the accident and I am 19 now. After Sampson and I left plaintiff ‘just about at the intersection of Ferndale and North Avenue’ we walked along the south shoulder of North Avenue. Sampson made a remark about how fast this guy was coming by. I also made some remark about the speed of the vehicle. I thought that the vehicle which was travelling fast and in the inside lane was a Thunderbird. However, at the time I knew little about automobiles. Sampson, who was familiar with them, said the vehicle going fast was a Karman Ghia, not a Thunderbird. I did not see the actual accident. When I arrived at the scene, I saw glass which I believed to be from the Karman Ghia, scattered from approximately the east side of the T-shaped intersection to the point where plaintiff was lying in the street a few car lengths to the east. The intersection is not marked. I saw no skid marks in the street.”

Robert Doyle, testifying for the defendant:

“I am a police officer for the City of Elmhurst. My records contain certain pictures of the accident. I made an investigation at the scene. This consisted of drawing a diagram and determining the location of the body where it was found. The boy had been moved when I arrived. I was told where he had been. The location of the boy was marked on the street with a stone. I do not know who placed the stone there. I don’t remember who identified that location to me upon arriving. I made measurements concerning that location. From the measurements we determined the distance from the center of Ferndale to where the boy was located after the accident was 50 feet. Ferndale is 30 feet wide at the intersection. In my deposition I said both the boy and the car were in the inner lane. Mr. Kischer did say something to me about a car in front of him.”

Gordon Graham, testifying for the defendant:

“I am a traffic engineer employed by the State of Illinois, Division of Highways. The speed limit at the time of the accident on North Avenue was 35 miles per hour.”

Defendant first contends plaintiff failed to establish a prima facie case, that the court should have directed a verdict at the close of the case-in-chief or at the conclusion of all the evidence, or entered a judgment n.o.v. Defendant has presented 20 subpoints for this contention, each of which relates an admittedly valid proposition of law. However, none of these propositions is determinative of the factual situation in the instant case.

The questions before this court, as to his contentions, are threefold. First, did the evidence at the end of the case-in-chief, when viewed most favorably to the plaintiff, totally fail to establish one or more of the necessary elements of the cause of action? (Carter v. Winter (1965), 32 Ill.2d 275, 282, cert. den. 382 U.S. 825, 15 L.Ed.2d 70, 86 S.Ct. 56 (1965).) Second, did all the evidence viewed in its aspect most favorable to plaintiff, so overwhelmingly favor defendant that no contrary verdict based on that evidence could ever stand? (Pedrick v. Peoria & Eastern RR. Co. (1967), 37 Ill.2d 494, 510.) Third, was the verdict against the manifest weight of the evidence in that an opposite conclusion was clearly evident? Bunton v. Illinois Central RR. Co. (1957), 15 Ill.App.2d 311, 322.

We have carefully reviewed the record and feel that the trial court was correct in denying the directed verdict, judgment n.o.v. and new trial motion based on the manifest weight of the evidence contention. AH the evidence, viewed in its aspect most favorable to the plaintiff, presents the foHowing picture: The accident occurred during daylight hours in good weather. Defendant was traveling 40 miles per hour which was five miles in excess of the speed limit. Martinez, foHowing defendant, saw at least three children on the curb, but defendant saw no one. While the Oldsmobile may have obscured defendant’s view to the right front, he saw no one until after his wife had seen the boy and had time to scream. Defendant did not sound his horn. Plaintiff had a right to cross in the unmarked intersection and was, in fact, in the intersection when he struck the side of the automobffe. Defendant applied his brakes graduaHy, not suddenly, during the events in question.

We thus find that there was not a total failure of proof as to each element of the cause of action and that the evidence did not so overwhelmingly favor defendant that no contrary verdict could ever stand. As the trial judge said, “I have never seen a case which is so classical in its fundamental concept as to a factual question.” Furthermore, we find that from aU of the evidence summarized above an opposite conclusion is not clearly evident.

II

Defendant objects to certain events which occurred during the course of the trial:

The Motion Pictures

Prior to trial, an order had been entered directing both sides to produce any motion pictures taken of the plaintiff subsequent to the accident. During trial, plaintiff’s attorney stated to the court that he- had just learned of the existence of certain motion pictures taken of plaintiff, the same having been taken in response to a request by one of plaintiff’s treating physicians; that the parents had not realized their possible importance to the trial; and that they had mentioned them to him only after the first day of trial. Plaintiff’s counsel requested that the court and counsel for both parties view two reels of the film in chambers. The judge, after viewing these motion pictures in the presence of both attorneys, admitted, over objection, portions of them which he said dealt with the rehabilitation methods used on plaintiff. He directed that other portions of the film be excluded as being inflammatory.

Had these moving pictures been properly produced prior to trial, this would have been a classical application of Darling v. Charleston Memorial Hospital (1964), 50 Ill.App.2d 253, 320-321, affd 33 Ill.2d 326 (1965), cert. den. 383 U.S. 946, 16 L.Ed.2d 209, 86 S.Ct. 1204 (1966). There the court held that a photograph taken of plaintiff’s leg immediately prior to its amputation was properly admitted to evidence. Defendant argued that its purpose was to inflame, impassion and confuse the jury and unduly emphasize the injury. The court found that if the photographs had a reasonable tendency to prove some material fact, they could be properly admitted, and the question of their admissibility was one for the discretion of the trial court. In this case, the trial court carefully reviewed the film in the presence of both counsel, excluded those portions which it felt tended to inflame or prejudice the jury and included only those sections demonstrating techniques used in rehabilitating plaintiff. Thus, had plaintiff produced the motion pictures prior to trial, and the trial corut conducted its review in the same manner as it did herein, there clearly would have been no abuse of discretion. Since the pictures were not produced until after the trial began, defendant argues that they should have been excluded, citing Buckler v. Sinclair Refining Co. (1966), 68 Ill.App.2d 283, or should have been excluded as a violation of the dignity and authority of the court, citing several cases. In Buckler, a party failed to fist a witness in response to an interrogatory. The court held that refusal to employ any sanction was not an automatic abuse of discretion. Instead, it required the trial court to weigh various criteria in determining the appropriateness of any sanctions imposed. Among the criteria were surprise to the opposite party, the good faith of the party calling the unlisted witness, equal opportunity and access of the opposing party in interviewing and deposing the witness and prejudice to the opposing party. Similarly, here, we believe that the trial cotut did not abuse its discretion in finding no lack of good faith or prejudice to the opposing party when it accepted counsel’s statement that the parents of the apparently incompetent minor were not aware of the value of the motion pictures taken several years previously at the request of a treating physician.

The cases cited by defendant in arguing that the court should exclude the motion pictures in order to uphold its own dignity, involve flagrant or repeated disregard for orders of the court and are therefore distinguishable from the instant case.

The Photographs of the Karman Ghia

During the course of the trial, defendant produced photographs of the automobile which showed damage to the right front portion of the windshield and fender. These exhibits had written upon them “car damage” and had arrows pointing to the various damaged sections. The court, over objection, permitted the introduction of that portion of each photograph which was unmarked. This was accomplished by cutting out the unmarked sections of the photographs showing the broken window and introducing these sections only. The portion of the photograph showing the damage to the fender contained markings and was not admitted.

Defendant argues alternatively that changed conditions do not necessarily make the photographs inadmissible and the court incorrectly refused the admission of the marked photographs into evidence; or, that his case was prejudiced when he was forced to cut certain portions out of the pictures and introduce photographs which “assumed the character of a ‘doctored’ exhibit.”

We find these arguments to be totally without merit. In Brennan v. Leshyn (1964), 51 Ill.App.2d 132, relied upon by defendant, the issue was whether a certain railing was present around a boiler pit at the time of an accident. The picture attempted to be introduced, was taken immediately prior to trial and showed such railing being present. The Appellate Court held that this type of photograph involved the principle issue of the case, i.e., whether a railing was there at the time of the occurrence, and that it was within the discretion of the trial court to refuse its admission. This type of changed condition is not the same as an alteration on a photograph made after the time the picture was taken. The words “car damage”, written on the photos by someone other than a testifying witness, amounted to a “doctored” exhibit and tended to emphasize certain evidence in issue, namely, damages to the car. Defendant’s alternative claim that he was forced to introduce doctored exhibits (because the court cut away the markings on the photographs) is without merit. All the court did was to undo what the defendant had improperly done, and thereby un-doctored a doctored exhibit.

The Police Officers Diagram

Defendant tendered a diagram made by Officer Doyle at the scene of the accident. Defendant now contends that this portion of the police report was admissible because it contained physical observations and measurements of the scenes which would give the jury a clear picture of Doyle’s testimony. (Walls v. Jul (1969), 118 Ill.App.2d 242.) However, our examination of the record shows that the basis for the court’s refusal was correct in that the document was based in part on hearsay. As the court said: “* * * inasmuch as Officer Doyle used hearsay in the preparation of this document as to the location of the body and so forth, that it was his reliance on what other people told him and not what he saw, that strictly speaking this document is part of the police report, I will have to deny its admission.”

The Martinez Statement

On direct examination, Martinez stated he saw children “crossing or attempting to cross” North Avenue. On cross-examination, defendant questioned him concerning a statement he had given to the police the night of the accident. Counsel said, “Did you at that time tell the police that you saw it as three boys trying to beat traffic across North Avenue?” The court sustained plaintiffs objection. Our review of the testimony of Martinez reveals that he made no contrary statements either on direct or cross-examination which would permit the use of this statement for impeachment purposes. Therefore the court properly sustained the objection and prohibited the witness from invading the province of the jury by giving his opinion of one of the contested issues of the case.

Plaintiff’s Closing Argument

Plaintiff’s counsel began his closing argument by saying: “Good morning, your Honor, Judge Philip Locke, Mr. Popejoy and company, and Mr. Kischer.” “We will excuse him. We will excuse Stephen for the summation.” No objection was made. Later in his argument, counsel stated a law inapplicable to the case; defendant objected. Counsel then began to read from an instruction; defendant objected on the grounds that counsel was invading the province of the court and its objection was sustained. Plaintiff’s counsel then made reference to a certain photograph and stated, “Where is that photograph? Who took that photograph?”; defendant objected saying that he would offer the photograph into evidence. The court, however, sustained the objection. During his argument, plaintiff’s counsel employed the word “they” in reference to defendant.

Defendant argues that the unobjected to “and company” statement, the reference to the person who took the picture and the use of the term “they” were improper references to insurance. Plaintiff responds that the reference to “and company” was merely a reference to the several attorneys who sat with defense counsel during the trial. Our interpretation, upon reading the entire closing argument, discloses no reference to insurance, either direct or oblique. Further, the court sustained defendant’s objections as to the latter claimed errors and no objection was made to the first.

Defendant further contends that counsel’s excusing plaintiff during closing statements was prejudicial, relying upon Lange v. Coca-Cola Bottling Co. of Chicago (1969), 105 Ill.App.2d 99, reversed for other reasons, 44 Ill.2d 73 (1969). In that case, counsel’s explanation of his client’s absence was based upon matters not in evidence which, of and by themselves, led only to inflame the passion of the jury. The same factual situation is not present here; that case is, therefore, distinguishable.

The statement, “We will excuse him. We will excuse Stephen for summation,” in our view did not prejudice the jury. We are of the opinion that because of the mental condition of the plaintiff, together with the fact that closing argument would of necessity require a lengthy discussion of his injuries, it was not error for the court to allow such procedure. This is especially so when no objection was made by the defendant at the time.

Instructions

Finally, defendant claims error in the giving of two instructions. One of the allegations in plaintiff’s pleading was that defendant was negligent for failure to sound a horn. Illinois law imposes a duty upon one to sound a horn when necessary to avoid colliding with a pedestrian. Defendant argues that this theory of the case was unsupported by the evidence. We disagree. Defendant’s wife specifically stated that defendant did not sound his horn before impact.

For the reasons stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

SEIDENFELD and STROUSE, JJ., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy Lobb, Defendant-Appellant.
    (No. 11251;
    Fourth District
    September 10, 1971.
    Chester Thomson and James G. Walker, both of Bloomington, for appellant.

      Clement M. Toohill, States Attorney, of Clinton, for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was convicted by a jury in the Circuit Court of DeWitt County of the offense of burglary. He was sentenced to the Illinois Penitentiary for a sentence of not less than 8 nor more than 13 years. This appeal is from the conviction and sentence.

The defendant asserts that the evidence is not sufficient to prove his guilt beyond a reasonable doubt; that the trial court committed reversible error in certain evidentiary rulings; and that the sentence imposed was cruel and unusual punishment and arbitrarily more severe than that imposed upon an associate. Additional points are asserted by the defendant relating to certain procedures employed in the trial court during a pretrial competency hearing. He also asserts incompetency of counsel and error in the form of an order of commitment to a named state hospital as in need of mental treatment.

A consideration of these various points is helped by a chronological recitation of the labored processes revealed by this record. The defendant was indicted in June of 1968 for a burglary allegedly committed in April of 1968. He was arraigned and counsel appointed on June 11, 1968. In July the cause was set for jury trial on September 16. The defendant did not appear on the date set for trial. The matter was continued. A bench warrant was issued. He subsequently did appear. The cause was continued and again set for trial January 20, 1969. Prior to that date the defendant appeared with his court-appointed counsel and counsel indicated the defendant desired to change his plea to guilty. The defendant, contrary to the representation of counsel, informed the court that he did not desire to change his plea, but did desire to be released from what he described as the solitary confinement in the county jail.

One week before the scheduled jury trial, a petition was filed in the circuit court by the defendant’s brother, Charles S. Lobb, asserting that the defendant was a person in need of mental treatment. The defendant was brought into the courtroom on a stretcher. A hearing was held on the petition. The court found the defendant in need of mental treatment and ordered his hospitalization in a facility in the Department of Mental Health.

The defendant was transported to the Jacksonville State Hospital and on January 31, 1969 his status at the hospital was changed from one of unauthorized absence to absolute discharge. In March 1969 the absolute discharge was suggested to the court after it was further suggested that the defendant had previously absented himself without authorization from the hospital. On the March 10 date he was in custody of the sheriff of DeWitt County. The jury trial was rescheduled for April 1969.

The defendant then sought to dismiss his court-appointed counsel for purposes of employing counsel. This permission was granted and upon his failure to employ private counsel, other counsel was appointed. Counsel thus appointed moved to cancel the April jury setting until such time as the defendant had been declared by the court to be no longer in need of mental treatment and no longer mentally incompetent.

Defendants competency was thereafter the subject of a jury proceeding in April 1969. The jury found the defendant competent and at a jury trial of May 1969 on the burglary indictment the defendant was found guilty and sentenced. Subsequent to that proceeding counsel for defendant sought to postpone sentencing pending a determination of the sanity of the defendant. After hearing, that motion was denied. Probation was denied and the defendant was given the sentence of not less than 8 nor more than 13 years.

In April 1968 a store in Clinton, Illinois, known as Jerry’s Red Cardinal Market was burglarized and certain grocery products, cigarettes and money were taken. On the date of the burglary one Robert Finn and Judith Armstrong drove by the store, noticed a car parked near the store; after passing the store, they turned around, returned to the store, and in the light of their headlamps saw two persons — a man and a woman — struggling with an object. Finn got out of his car, was able to observe the license of the parked vehicle, and the man and woman got into their car and left. Finn followed them for some distance and then reported the incident to the county sheriff.

An investigation of the store indicated that a screen had been torn from a rear window and a window broken, an inside partition had been broken, the rear door was unlocked from the inside and was open, a safe had been moved to the outside, the drawers of the cash register had been removed and the money was missing, and various items of merchandise were scattered about the store and outside the premises. One of the store owners testified that certain items of meat, cigarettes and hosiery appeared to be missing.

A radio bulletin concerning the incident was issued. A state trooper heard the broadcast, recognized the defendant’s car as one that he had just assisted as a stalled vehicle. He returned to the stalled vehicle, arrested its occupants — the defendant and one Jane Myers. The officer noticed a basket or box of items on the back seat of the auto. Thereafter, another state trooper arrived at the scene of the arrest, remained with the car for about 10 minutes; a wrecker was called, and the car was removed to a wrecking yard. A state policeman stayed with the car until a deputy sheriff from DeWitt County Sheriff’s Department relieved him.

The subjects were returned to DeWitt County from Macon County, the place of the arrest, and a basket of items located in the back seat of the car was taken to Clinton at the time the defendant and Jane Myers were returned to Clinton. A Robert Maxwell, one of the owners of the burglarized store, examined the items in the basket. He initialed a label from one of the packages of meat and after the various items were marked they were turned over to Maxwell. He took them and put them in the freezer of his store. On the first day of trial he brought them from the store to the courthouse. There was no showing of exclusive possession and notwithstanding this, certain items of evidence as exhibits were admitted. There is no question but that certain of the items were identified by Maxwell at the DeWitt County jail on the night of the burglary.

Jane Myers testified for the People, admitted her part in the burglary and identified the defendant, Roy Lobb, as the man who was involved in the burglary. An allegedly prior inconsistent statement of the witness was established and other matters of impeachment were fully developed as to Miss Myers.

The evidence in this record clearly supports the finding of guilty of the offense of burglary. The testimony of Miss Myers, although an accomplice and subject to suspicion, clearly indicated the defendant’s guilt. The evidence as to the vehicle, the contents of the vehicle, and the possession by the defendant soon after the burglary of the items taken in the burglary, are all corroborative of the accomplice’s testimony. People v. Rossolille, 38 Ill.2d 316, 231 N.E.2d 585.

The evidentiary rulings of which the defendant complains relating to continuity of possession and a failure to show an exclusive control and possession and that the offered exhibits were in the same condition as when seized, need not be considered, for, even if error, such did not constitute reversible error in the context of this record.

We have examined the proceedings with reference to the competency hearing and the complaint of instructions relating thereto and find no procedural infirmities. This issue was not originally raised on the appeal by appellate-counsel. The record was supplemented on motion of the defendant and he has filed a brief in support of various contentions with reference to the competency proceeding. All of the evidence with reference to this procedure is to the effect that the defendant while suffering from a severe alcoholic problem was, in fact, competent. The instructions given, considered as a series, were not in error.

Neither do we find it necessary to discuss in detail the defendant’s assertion that trial counsel was incompetent. An assertion of incompetency must be accompanied by a showing of prejudice to the defendant, without which prejudice the outcome would probably have been different. Our examination of this record reveals the existence of no such substantial prejudice. See People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810.

We next consider the issue of the sentence of not less than 8 nor more than 13 years imposed upon the defendant. The record shows that Jane Myers, his accomplice, with no prior criminal record was given probation. The defendant was described in the probation officer’s report as one that has been in trouble with the law since he was 13 years of age. He is described as a person with a good education, employable as a meat cutter, whose wife recently divorced him and who had three children dependent upon him for support — then ages 10, 8 and 6. The defendant had been previously convicted of burglary on two occasions. There is no doubt from reading this record that the defendant’s antisocial conduct was directly related to the serious alcoholic problem. Excessive use of alcohol cannot however be used to justify antisocial or criminal conduct.

This sentence is said to be disparate because of the severe sentence imposed upon the defendant and probation given to the accomplice. The theory of sentencing is that the court will consider the offense and the offender, his likelihood of rehabilitation and all of the other subjective criteria. Disparity of sentencing is a serious judicial problem. It can arise when defendants of like background and like prospects for rehabilitation are given unlike and disparate sentences. It can also arise where defendants of substantially different rehabilitation prospects and different backgrounds and different records are given the same sentence.

The sentence here is at cross purposes with the notion of indeterminate sentences. The minimum of 8 years measures parole eligibility. The maximum of 13 years measures the total time of permissible incarceration. We have said in People v. Scott, 117 Ill.App.2d 344, N.E.2d 553; the First District Appellate Court has said in People v. Jones, 118 Ill.App. 2d 189, N.E.2d 843; and the American Bar Association Committee on sentencing alternatives and procedures has said the principal of indeterminacy is best served when the minimum sentence is no longer than one-third of the maximum sentence. While we have approved this principal, we have also indicated that such cannot be accepted as an absolute mathematical formula. Such observation however does not diminish the desirability of indeterminate sentences with a substantial spread between the minimum and the maximum.

As we have noted, this defendant has had two prior convictions for burglary. In June 1949 he was sentenced to a term of one year to 15 months and the record indicates that he was incarcerated in the State Penitentiary at Menard and at Pontiac and discharged upon expiration of sentence in August 1950. In March of 1952 he was again convicted of burglary, given a sentence of 5-10 years. At the time of the first conviction the defendant was 16 years old. He was 19 at the time of the second conviction. There is an indication of a parole violation but no indication of any convictions subsequent to his discharge upon the second sentence. This record is of course an aggravating factor. The 10 year record of no indicated convictions is a mitigating factor. Under these circumstances, it is difficult, if not impossible, for the trial judge to ascertain the optimum time for release of the defendant whose age at the time of sentencing was 36. It is for this reason that the principle of indeterminate sentence and reliance upon the expertise available to the parole board has been accepted as the most responsible form of sentencing.

We deem it appropriate in this case, acting under the authority of Supreme Court Rule 615, that the minimum sentence be reduced from 8 to 5 years. The judgment of conviction and sentence as modified are affirmed.

Judgment modified and affirmed.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE CRAVEN Mr. PRESIDING JUSTICE SMITH,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Moyer, Defendant-Appellant.
    (No. 11256;
    Fourth District
    September 10, 1971.

      Rehearing denied October IS, 1971.

      SMITH, P. J., specially concurring.
    Lloyd F. Latendresse, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant, William Moyer, was tried by jury on a two-count indictment charging forgery and theft, and found guilty on both counts. The court entered a judgment of conviction on forgery and sentenced defendant for a term of five to ten years.

The evidence presented by the State was that a man telephoned the Bachrach Clothing Store in Decatur, spoke to one Ann Bond, an office employee there, and stated that he was Homer Everman and wished to open a charge account for his son-in-law, named William Jones, to use with a credit limit of not over $500. Ann Bond wrote the information given her about Homer Everman on a card which she testified was a credit application. She ran a credit check on Everman and found his credit approved. Later on the same day, defendant appeared at the store and identified himself as William Jones. He signed the card as “William Jones.” Thereafter, he purchased items of clothing at the store, returned some of the merchandise, and signed purchase slips “William Jones” which were charged to Homer Everman.

BiUs were sent by the store to Everman for these purchases, but Everman did not pay them. He testified that he did not start the charge account or authorize anyone to do so, nor did he make the telephone caH or know about it. Moyer was arrested and identified as the person who purchased the merchandise.

Defendant testified that he telephoned the store and informed a lady who answered that he was William Jones, wished to open a charge account, and gave Homer Everman, his step-father, as a credit reference. He testified that he did not use the name Moyer because he had a penitentiary past which had ruined his credit. He had, on various other occasions, used the name “Jones” on employment applications.

The defendant here contends: (1) that the forgery indictment is fatally defective; (2) that the theft indictment is defective, and at most can be theft only under $150; (3) that the prosecutor improperly referred in oral argument to a prior conviction of the defendant; and (4) that the evidence faded to prove his guilt beyond a reasonable doubt.

The forgery indictment charged that defendant “committed the offense of Forgery, in violation of Chapter 38, Section 17 — 3 Ill.Rev.Stat., 1967, in that with the intent to defraud and permanently deprive another, he made a document apparently capable of defrauding another in that he knowingly and without authority signed the name of William Jones, a name known to him to be fictitious, to sales receipts of Bachrach Clothing Store on the account of Homer Everman, * * * and, representing himself to be William Jones, a person authorized to charge the account of Homer Everman, signed said sales receipts and did thereby obtain items of clothing charged to the account of Homer Everman, and further executed an application for credit on the account of Homer Everman, signing the name of William Jones, a name known to him to be fictitious, * * * ”.

The requirements of an indictment are set forth in Ill.Rev.Stat. 1969, ch. 38, par. 111 —3. The purpose of the charge contained in the indictment is to inform the accused of the nature and cause of the accusation against him. (Ill. Const. 1870, Art. II, Sec. 9.) Formerly, two general methods of drafting the indictment existed. Either the offense could be charged in the language of the statute or by stating the facts which constituted the crime. People v. Barnes (1924), 314 Ill. 140, 145 N.E. 391.

In charging forgery of a written instrument, it was held that the instrument should be described according to its tenor (that is, by setting out the very words of the instrument) or its purport (that is, by stating its substance). People v. Nickols (1945), 391 Ill. 565, 63 N.E.2d 759, held that it was not necessary that the indictment describe the instrument both by its purport and by its tenor, yet where it attempts to do so, the two descriptions must be consistent.

The Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 100 — 1 et seq.) has eliminated many of the old pleading technicalities. The new Code seeks to secure simplicity in procedure and to do away with pleading technicalities. People ex rel. Miller v. Pate (1969), 42 Ill.2d 283, 246 N.E.2d 225, reviewed the cases dealing with sufficiency of the charge of forgery under the new Code and determined that an indictment, to be sufficient, did not need to have a tenor description, but that it was sufficient to describe the instrument in narrative form. This decision was based upon the determination that the prior decisions of that court requiring the setting forth in the indictment haec verbae or attaching a copy of the instrument in forgery cases was necessitated by the distinctions in the prior forgery statutes between forgery of negotiable instruments and other instruments, and that the new forgery statute is comprehensive and does not differentiate among instruments as to the penalty imposed or the elements of the offense. The indictment in the Miller case was based upon alteration of a stock certificate and specifically described the certificate and the manner of its alteration.

Testing the forgery indictment in light of the new Code of Criminal Procedure and the Miller case, while we may agree that the indictment was unartfully drafted, it did contain a narrative description of the instrument. It is evident that the indictment sufficiently informed the defendant of the charge he was called upon to defend. He testified to the execution and delivery of the documents charged, although denying the intent to defraud.

The record fails to disclose any motion in the trial court to quash the indictment or for a bill of particulars. The motion for new trial raised no issue of this now alleged insufficiency. The indictment is sufficient to bar a second prosecution for the same offense. Further, as we noted in People v. White (4th Dist. 1971), 267 N.E.2d 129, such defense may be raised from the record.

While the instruments which are the subject of this charge on the face of them or upon inspection of them show no tendency to defraud, the averments of the indictment state extrinsic facts sufficient to render them documents "apparently capable of defrauding” within the meaning of the statutory crime of forgery. (Ill.Rev.Stat., ch. 38, par. 17—3.) Such docmnents were the subject of a crime of forgery even prior to the present statute where averment was made of extrinsic facts showing the fraudulent character of their use. (People v. Routson (1934), 354 Ill. 573, 188 N.E. 883; Goodman v. People (1907), 228 Ill. 154, 81 N.E. 830; Klawanski v. People (1905), 218 Ill. 481, 75 N.E. 1028.) Here, the indictment alleged that the slips asserted authority to use the credit of Everman when in fact there was no such authority and they represented the defendant to be a person authorized to charge to such account, and that he signed a fictitious name to the application for credit for the purpose of receiving goods, thereby obtaining items of clothing from Bachrach Clothing Store. This sufficiently alleged that the sales slips and credit application were apparently capable of defrauding.

The forgery count allegation of “Bachrach Clothing Store” was sufficient for the purposes of this count, as it is not necessary in a forgery count to aHege the identity of the person intended to be defrauded. The offense of forgery is committed in making and delivering the instrument with the general intent to defraud. People v. Crouch (1963), 29 Ill.2d 485, 194 N.E.2d 248; People v. White (supra). The offense of forgery is defined in terms that refer to making or altering any document capable of defrauding, issuing or delivering such document, knowing it to have been made or altered, or possessing with intent to deliver such document. The gravamen of the offense is not concerned with the identity of the person sought to be defrauded. This indictment measured by this definition and the object and purpose of the indictment or charge must be deemed sufficient.

The count of the indictment charging theft is likewise attacked by tire defendant as being fatally defective in faffing to aHege that the theft was from an entity legally capable of owning property. This contention must be sustained. The gravamen of the offense of theft is obtaining or exerting unauthorized control over property of the owner. Indeed, the statutory defense of theft in its various aspects uniformly speaks in terms of obtaining control over property of the owner, thus an essential element of the offense is identity of the owner. See People v. Berndt, 101 Ill.App.2d 29, 242 N.E.2d 273.

In People v. Hill (1st Dist. 1966), 68 Ill.App.2d 369, 216 N.E.2d 212 a complaint of theft of the property of “Community Discount Store” was held defective, relying upon People v. Brander (1910), 244 Ill. 26, 91 N.E. 59. The reasoning of Hill is applicable here. Miller v. Pate and People v. White, previously discussed, are forgery cases and the discussion as to ownership there found has no applicability to theft, for, as we have said, in a theft case ownership of the property allegedly stolen is a necessary averment. See People v. Tenen, 270 N.E.2d 179, as to deceptive practices.

Finally, with reference to the theft count, even if there had been a valid charge, the verdict is insufficient on the issue of value to sustain a judgment of conviction of the charge of theft in excess of $150. We hold the theft charge to be fatally defective and any judgment entered thereon must be reversed.

Such reversal does not affect the validity of the sentence inasmuch as the trial court correctly imposed only one sentence — that for the offense of forgery. Thus, while we reverse the conviction for theft, we affirm the conviction for forgery and the sentence imposed thereon. The judgment and sentence of the Circut Court of Macon County for forgery is affirmed. The conviction for theft is reversed.

Judgment reversed.

TRAPP, J., concurs.

Mr. PRESIDING JUSTICE SMITH,

specially concurring:

I concur in the ultimate disposition of this case in the majority opinion, but not with its disposition of the theft count. The ownership of the property is alleged to be in Bachrach Clothing Store. It is a certainty that such ownership is in an individual, an association of individuals or a corporation. The store was not operated by a nonentity nor was the property taken owned by a nonentity. Ownership is thus alleged but imprecisely stated. As alleged, the legal entity is not precisely identified. People v. Hill cited in the majority opinion as authority uses as a springboard a 1910 decision holding that ownership must be alleged in a legal entity capable of owning property. In so holding it returns us as does the majority in this case to the overly technical unrealistic formalism of yester-years which the Code of Criminal Procedure was designed and expected to eliminate. People v. Reed, 33 Ill.2d 535, 213 N.E.2d 278; People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97; People v. Petropoulos, 34 Ill.2d 179, 214 N.E.2d 765; People ex rel. Ledford v. Brantley, 46 Ill.2d 413, 263 N.E.2d 27, dissenting opinion.

This indictment is nullified after judgment without previous utilization by the defendant of either a motion to quash or a bill of particulars. While the authorities cited by the majority support the conclusions reached, it is incomprehensible to me as to why it is essential that the defendant know precisely from whom he steals property, but it is not important to him to know precisely whom he defrauded. If adequate trial preparation is available in the one, it is likewise available in the other. If double jeopardy protects in the one, it likewise protects in the other. It seems to me that the law followed in the majority opinion blows hot and cold on the same fundamental issue. This, I submit, is neither necessary nor desirable in the proper and efficient administration of justice.


author: Mr. JUSTICE MILLS,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Wayne Newberry, Defendant-Appellant.
    (No. 11294;
    Fourth District
    September 10, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, (Frederick F. Cohn, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE MILLS,

delivered the opinion of the court:

This is an appeal with little, if any, merit — reflective of the ever increasing volume of like cases that are flooding our reviewing courts.

Defendant and his partner were indicted for burglary. Both were represented by the same self-employed attorney, both entered pleas of guilty and both requested probation. His co-defendant was granted probation, but Newberry was not. He received 1-10 years in the penitentiary.

First: Newberry contends that the indictment was void because it failed to allege legal ownership. The indictment recited that defendants “* * * entered a building of Decatur School District No. 61, To-wit: The boiler room of Lakeview High School * * This identical question, in a burglary case on all-fours, was disposed of in People v. Furman, 26 Ill.2d 334, 186 N.E.2d 262. That opinion clearly controls here.

Second: Defendant maintains he did not have effective counsel at the probation hearing because his attorney “argued forcefully to secure probation for the co-defendant” but “took a position of ambivalence” toward him. We comprehend no purpose to be served by reciting at length from the record in order to minutely demonstrate the hollowness of such a charge. It will suffice to relate that we have read in toto the record before us and find no ground whatsoever to support such argument.

The guilty plea of this defendant was properly taken by the trial court — and it was a “straight” plea, not “negotiated”. He had no prior promise as to sentence; he had no contract with the court; there was no quid pro quo. Defendant had violated a prior probation under an earlier conviction of attempted burglary, and to our view the trial judge had ample cause for the sentence here imposed.

Judgment affirmed.

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


author: Mr. JUSTICE TRAPP

text:
    Sun Oil Company, Plaintiff-Appellee, v. Roger Knickerbocker, d/b/a New Gallatin Coal Company, Defendant-Appellant.
    (No. 11326;
    Fourth District
    September 10, 1971.
    Dowell & Dowell, of Mt. Vernon, (N. Y. Dowell, of counsel,) for appellant.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from the order of a magistrate which denied his petition for permanent stay of execution of an order finding contempt and sentencing defendant to jail for failure to comply with an order to pay installments of money upon a judgment.

The record shows that prior to the above order the defendant was adjudicated a bankrupt and discharged in bankruptcy.

Plaintiff neither filed a brief nor appeared upon the appeal. The order of the magistrate is reversed within the rule stated in the City of Kankakee v. Young, 122 Ill.App.2d 304, 258 N.E.2d 580 and Rotter v. Rotter, 119 Ill.App.2d 231; 255 N.E.2d 479.

Judgment reversed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vincent Howze, Defendant-Appellant.
    (No. 11333;
    Fourth District
    September 23, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, (Frederick F. Cohn, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Arthur J. Inman and G. Lanter, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was indicted for the unlawful sale of marijuana, then classified as a narcotic drug. He entered a plea of not guilty. A jury trial resulted in a verdict of guilty and the defendant was sentenced to not less than 10 years nor more than 10 years and one (1) day in the Illinois State Penitentiary. This appeal is from the conviction and sentence.

Many issues are raised on this appeal with reference to sufficiency of the proof, the correctness of the instructions, the propriety of certain comments by the prosecution in closing argument, and then a substantial number of issues with reference to the reasonableness of the Illinois classification of marijuana as a narcotic and the constitutionality of the penalty provisions.

Only a brief factual statement is required in order to set in perspective the one issue that we must discuss in detail and which in our judgment requires that this case must be reversed and remanded for a new trial.

Christopher Vaughns, an agent of the Illinois Bureau of Investigation, testified that the defendant sold him 5 packets of marijuana for $5.00 a packet. At the time of this transaction, Vaughns was accompanied by one Willie Greer, an informant of the Illinois Bureau of Investigation. Other agents testified that they had kept a surveillance of Inspector Vaughns and Greer on the date that this transaction took place. One of these, an Inspector Naylor, testified as to his roll in the surveillance. Naylor further related that he made a report as to his activities and in it made reference to a memo or report of Inspector Vaughns relating to the transaction. He stated that he had not seen the Vaughns’ report.

Prior to trial, and at the trial, the defense asked that a copy of the report or memorandum of Inspector Vaughns be produced. The prosecution indicated that it did not have the report, tendered its file to the comt for examination, and made a statement further to the effect that they had been unable to find the report. The court denied the further motions and efforts by the defense to ascertain the existence of the report.

The record and the testimony of Inspector Vaughns is that he did make a report, that the same was dictated in the Chicago office to be typewritten and sent to Springfield. Such was done on or about the 16th of August, 1969. Agent Vaughns saw the completed report. It consisted of approximately 5-6 pages. It was made to his supervising inspector from notes taken by Vaughns; and the report was signed by him. The Springfield division office was aware of the report. Having ascertained that the report was not in the prosecution file, the court as we have indicated, denied defense counsels motion to stay further proceedings until there could be a clarification as to whether or not the report exists and also until the court ordered a production of it or some disposition of the pending motion for the report. Upon disallowance of this motion the trial proceeded.

The effort to obtain the report in this instance was in connection with its use for impeachment not discovery. As we view it, the issue here is determined by the decision of the Supreme Court in People v. Allen, 47 Ill.2d 57, 264 N.E.2d 184, which opinion states the rule applicable, the cases upon which it is based and the result that is required. Because of this, we quote extensively from the opinion as follows:

“The prosecution on demand is required to furnish an accused for possible impeachment use specific statements in its possession or control which were made by a State’s witness, which have been shown to exist and which are in the witness’ own words or substantially verbatim. (People v. Durso, 40 Ill.2d 242, 239 N.E.2d 842; People v. Neiman, 30 Ill.2d 393, 197 N.E.2d 8; People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197.) This obligation extends to police reports and even interdepartmental records. (See People v. Cagle, 41 Ill.2d 528, 244 N.E.2d 200; People v. Golson, 37 Ill.2d 419, 226 N.E.2d 610; People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1.) It is said that a right sense of justice’ underlies this rule of production. People v. Cole, 30 Ill.2d 375, 196 N.E.2d 691; People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1.
In People v. Wolff this court said, [19 Ill.2d] at page 326, 167 N.E.2d at 201, the trial court, where there is no basis for privilege and relevancy and competency has been established, is required to order the statement or report delivered directly to the defendant for his examination and use.’ Here, the State makes no claim of irrelevancy, incompetency or privilege. It contends simply that no statement subject to production was shown to exist, as is required (see People v. Durso, 40 Ill.2d 242, 239 N.E.2d 842; People v. Golson, 37 Ill.2d 419, 226 N.E.2d 610.) The writing to which Officer Peck made reference, the State says, was but a 'police blotter’ notation, and not a statement capable of being used by an accused for impeachment purposes. There is no reference in the record to any report, other than Officer Peck’s testimony regarding a statement or report, and the State does not disclose the information which appeared in the report it describes. The value, or lack of it, of a statement given by a witness is to be decided by the accused and not by the prosecution. (People v. Wolff, 19 Ill.2d 318, 325, 167 N.E.2d 197.) We are not aware of any de minimis rule, so to speak, regarding statements, which the State’s argument suggests. Thus, even if the statement or report of the officer was not precisely as his testimony indicates, the defendant had a right to examine the report the State deprecates here. The trial comt should have directed its production.”

It is clear from this record that there was a report and it is further clear that contents of the report may well have been of substantial assistanee to the defense in cross-examination of Agent Vaughns. It is also clear that a report by Agent Naylor may have been in conflict with Vaughns’ report with reference to certain crucial events at the time of this controlled sale transaction.

As we view it, compliance with Allen requires the production of this statement if it is in existence. This is a threshhold question which must necessarily be determined prior to consideration of other issues on this appeal. This case is therefore remanded to the circuit court of Sangamon County with directions to conduct a hearing and cause the production of Vaughn’s report if the same is in existence. If it is determined that it is in existence and is producible, then an order is to be entered granting the defendant a new trial. Should it be determined that the statement or its substantive content cannot be produced, then such finding together with the transcript of the hearing is to be certified to this court for further consideration of this and the other issues presented by this appeal.

This cause is remanded to the circuit court of Sangamon County for further proceedings in accordance with views herein expressed.

Judgment remanded with directions.

SMITH, P. J. and TRAPP, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Clyde Woodell, Defendant-Appellant.
    (No. 70-191;
    Fifth District
    August 18, 1971.

      Paul Bradley, of Defender Project, of Mt. Vernon, (Donald E. Irvin, Assistant District Defender, of counsel,) for appellant.
    R. W. Griffith, Jr., States Attorney, of Edwardsville, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This cause was a prosecution by indictment for the offense of burglary. The appellant, hereinafter referred to as the defendant, was tried on April 6, 1970 by jury which returned a verdict of guilty. From the judgment thereon the defendant has brought this appeal.

The burglary allegedly occurred on January 6, 1970, in Hamel, Illinois. The facts surrounding the arrest of the defendant are thus:

Madison County Deputy Sheriffs Greenwood and Robbs testified that they were patrolling service stations and business places in Hamel on the morning of January 6, 1970. At about 1:30 A.M., Greenwood saw a silhouette of a man in the west end of White’s Marathon Service Station. The officers turned spotlights on the station and went to the front of the station. They then observed the front of a cigarette machine lying on the floor of the office part of the station. Next they parked the patrol car and checked the door on the east side of the building which was found to be unlocked. The officers then returned to the car and requested aid from the dispatcher and requested that the owner of the station be notified. The officers also observed parked in close proximity to the east door, a 1960 green Ford bearing California plates.

The service station faced in a north direction with the west end being the office section and the east area the service portion. The north side and east side were mostly plate glass.

After two additional patrol cars arrived to assist Deputies Greenwood and Robbs, five law enforcement personnel proceeded by flashlight to search the entire gas station premises. No one was found inside the building. A short time later the lessee of the station arrived and turned on the lights. Another search was then conducted by the lessee and two officers. Again no one was found. The lessee’s watchdog was inside the station before and at the time the search was conducted.

After the other officers and the station lessee left, Greenwood and Robbs proceeded to “stake out” the 1960 Ford. The deputies did this by moving their patrol car from its location about ten feet from the northeast side of the building to a point either 100 feet or 400 feet from the northwest comer of the station (Deputy Greenwood testified as to the 100 foot distance, whereas Deputy Robbs testified to a distance of 400 feet). From this vantage point Deputy Greenwood testified that he could see the entire north and west outsides of the station and by looking through the north side window of the station could see the entire east wall. From this position Deputy Greenwood said that he observed a man inside the station walk toward the east side of the building, open the door, and walk through the door to the outside. He had not been observed entering the station. The deputy described the lighting in the various areas from fairly good to poor but maintained “I got a clear view of it”. Deputy Greenwood informed Deputy Robbs of his seeing the individual, and the spotlights and running lights of the patrol car were turned on and the car driven to the northeast comer of the station, and defendant “was standing outside the east side station door”. The defendant was not observed to be carrying anything at the time of arrest.

Deputy Robbs’ testimony was essentially that of Deputy Greenwood except for the discrepancy concerning the distance previously noted and Deputy Robb testified that he did not see the defendant until he was standing outside the station.

The station lessee and operator testified among other things that the defendant did not have authorization to be in the building; that the east door of the station was open with pry marks around the lock; the cash was missing from the soda machine; and a rack of STP was missing. He also testified as to performing a search of the premises with two deputies.

There was found in the back seat of the 1960 Ford Sedan and admitted into evidence, a display stand for STP and a coin box, which items had been observed by the officers through the window of the car prior to the “stake-out”. There was also testimony that there was also in the back seat nine cans of STP, five cans of gas treatment, two boxes of shotgun shells, a tire and rim.

The defense produced testimony from one Herbert A. Pope who admitted performing the burglary but stated it was without the assistance of the defendant. Pope testified that he acted while the defendant was asleep in the back seat of the 1960 Ford, that the defendant at no time was inside the station, and that he (Pope) was inside the station when the officers first drove up and he “went back out through the door and out behind the service station”. Pope was apprehended the morning of the 6th when he returned to the station and made inquiry concerning his car. Pope pleaded guilty to this dime of burglary on the morning of this defendant’s trial.

The defendant took the stand and testified in his own behalf, to the effect that he had been a resident of the State of Maryland, and that he was never inside the service station. He testified that he was enroute east with Pope from California; that, “I was asleep in the car until this rack of STP came flinging on top of me. By then I woke up. I am a parole violator from Maryland and this is why I don’t want back into no more trouble. I got out of the car. I shot around side and watched the officers search the place. I came by the door and slipped on the ice and they shined the lights and asked me to proceed towards them and I did”, and that he was then taken into custody.

The defendant first asserts that the State did not prove beyond a reasonable doubt that the defendant was guilty of the crime of burglary. The defendant contends that the State did not prove that the defendant first entered the service station and second, that even if he did enter, that he had the requisite intent to commit a theft.

There was sufficient evidence to support the findings of the jury. The jury observed the witnesses and had that advantage in their deliberations to determine the innocence or guilt of the defendant. (People v. Hanserd, 125 Ill.App.2d 465, 216 N.E.2d 317.) In such situations as this, we are reluctant to overturn the factual determination made by the jury. (People v. Sanders, 129 Ill.App.2d 444, 253 N.E.2d 615.) The testimony of the Deputy Greenwood was subjected to thorough cross-examination and the credibility to be given to it was for the jury to decide. If they believed the Deputy and not the defendant that was their conclusion and we have gleaned from the record no compelling reason why their factual determination should be overturned.

The defendant contends that the case of People v. Cullotta, 32 Ill.2d 502, 207 N.E.2d 444 is determinative of this issue. The Cullotta case involves the issue of identification. In that case the State could not prove that the defendant was in the building and his presence at the scene of the crime was more than an hour prior to the commission of the burglary. The facts of the Cullotta case are dissimilar to the present case, wherein there is testimony that an individual was seen inside the building and then apprehended immediately outside of the building. We agree that mere presence at the scene of a crime is insufficient to establish guilt but we find credible evidence of guilt in this case. (People v. Boyd, 17 Ill.2d 321, 161 N.E.2d 311.) However, the general rule is that testimony of a single witness if positive and credible is sufficient to establish guilt, if believed by the jury. People v. Schneekloth, 129 Ill.App.2d 451, 263 N.E.2d 500.

The defendant next asserts that the States attempts to impeach the defense witness Herbert Pope were prejudicial to the defendant and deprived him of a fair trial, citing People v. Nuccio, 43 Ill.2d 375, 253 N.E.2d 353. We have reviewed the transcript of the trial and cannot say that the cross-examination conducted by the State’s Attorney deprived the defendant of a fair trial. It is the totality of the impact of the unsupported insinuations which may deprive the defendant of a fair trial. In the course of the cross-examination of defendant’s witness Pope, the following questions and answers were presented:

Q. O.K. Now, had you made any statements contrary to what you have just stated on the stand?
A. What?
Q. Did you give a statement when you got back to the service station to anybody? To a deputy sheriff that Woodell had your car and you had just met him in St. Louis?
A. No.
Q. You never ever said that?
A. No, Sir.

The prosecution then dropped that line of inquiry and failed to present any evidence to the effect that Pope had made any inconsistent statement with reference to this defendant having the car. There was never any motion to strike the testimony and we cannot say that defendant was prejudiced by it. The jury obviously did not believe defendant’s witness Pope’s testimony that defendant was never in the station and that defendant was asleep in Pope’s car while Pope committed the burglary, so it would be of little consequence whether the jury believed that Pope had told some one that defendant had his car. The prosecution should not have suggested or inferred an inconsistent statement unless it was prepared to present evidence of it, but we cannot here say that the impropriety was prejudicial.

As a final assertion of error, the defendant contends that the giving of the following instruction denied the defendant of a fair trial: “Evidence of a defendant’s previous conviction of a crime is to be considered by you only insofar as it may effect 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.”

The instruction is identical to IPI — Criminal Instruction 3.13. The committee note is that the instruction is to be given only when there has been impeachment of the defendant by proof of an infamous crime, as defined in Ill. Rev. Stat. 1969, ch. 38, par. 124—1. The only proof of a crime came from the defendant’s own testimony when he stated that he was “a parole violator from Maryland”. The record is blank as to who tendered the instruction and the defendant voiced no objection to the giving of the instruction. Since defendant made no objection to the instruction, conceivably it could have been tendered by defendant to mitigate the effect of defendant’s own voluntary testimony that he was a “parole violator”, or if tendered by the prosecution, defendant’s counsel considered that it would mitigate the effect of defendant’s testimony. Supreme Court Rule 451(c) provides: “(c) Section 67 of the Civil Practice Act to govern. Instructions in criminal cases shall be tendered, settled, and given in accordance with Section 67 of the Civil Practice Act, but substantial defects are not waived by failure to make timely objections thereof if the interests of justice require.”

The failure of the defendant to object to giving of instructions at the time of trial constitutes a waiver of that right to object on review. (People v. Hines, 30 Ill.2d 152, 195 N.E.2d 714; People v. Hahn, 114 Ill.App.2d 262, 252 N.E.2d 373.) This is not the case when the error is substantial and prejudice to the defendant is shown. (People v. Wicks, 115 Ill.App.2d 19, 252 N.E.2d 698.) This instruction is a limiting instruction the purpose of which is to inform the jury that conviction of a prior crime is not evidence in the case with which he is being tried. It limits the jury to consideration of prior crimes as such may affect the credibility of the defendant. The defendant himself informed the jury of a previous conviction and thus, it cannot be said that this limiting instruction deprived the defendant of a fair trial.

The judgment of the Circuit Court of Madison County is therefore affirmed.

Judgment affirmed.

CREBS and MORAN, JJ., concur.


author: Mr. JUSTICE CREBS Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Appellee, v. John Hibbler, Defendant.
    (No. 69-49;
    Fifth District
    September 7, 1971.

      Rehearing denied October 1,1971.

      MORAN, J., dissenting.
    Paul Bradley, of Defender Project, of Mt. Vernon, (Kenneth L. Jones, of counsel,) for appellant.
    R. W. Griffith, Jr., State’s Attorney, of Edwardsville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

John Hibbler, defendant, was convicted of forgery in a jury trial in the circuit court of Madison County and was sentenced to the penitentiary for a term of not less than six nor more than fourteen years. On appeal he contends that the trial court erred in refusing to allow him to present an in-court sample of his handwriting for comparison purposes and in refusing to allow a witness to testify as to the witness’ personal amnestic experiences as a chronic alcoholic. In addition he contends that he was not proven guilty beyond a reasonable doubt and that his sentence was excessive.

From the state’s evidence it appears that on January 16, 1968 the defendant presented a check to the First National Bank of Madison in the amount of $355.55 representing himself to be the payee, Charles E. Dandridge, and requesting that part of it be paid to him in cash and the remainder placed in a savings account which he wished to open. Frances Brown, a teller, testified that the man who endorsed the check with the payee’s name was not known to her and since he had no identification she referred him to Mr. Gitcho, the executive vice-president of the bank. On cross-examination she stated that the man seemed to be possessed of normal faculties, that he did not appear to be intoxicated though she did notice a smell of alcohol on his breath, that she noticed nothing queer or strange about his manner, that she did notice he had mispelled the payee’s name but that this was not particularly unusual as she had observed others make spelling errors while endorsing checks which she attributed to nervousness. James A. Foley, a bank auditor, identified defendant as the man who represented himself as Dandridge. He testified that defendant looked familiar, that he accepted his representation that he was Dandridge and so assured Mr. Gitcho who then authorized cashing the check; that suddenly he realized defendant was not Dandridge so he delayed any further action until the police were called and defendant was arrested. Charles E. Dandridge testified that the check was from an insurance company which he expected to receive in the mail, that he was not personally acquainted with defendant but that he knew of him and his family; that he had not given any authority to cash the check and did not know how it came into his possession. He further stated that the endorsement looked a lot like his signature but that he knew it was not as he would not have mispelled his own name.

Testifying for the defense, Jewell Dandridge, a brother of the payee, stated that he had known defendant for thirty years, that he and defendant had been out all night drinking at various taverns, that at about ten o’clock in the morning he had gone to the post office to pick up the Dandridge family mail and after returning to the tavern and rejoining defendant he had forgotten the letters and left them near the defendant. The defandant testified that he remembered he had been out drinking with Jewell Dandridge all afternoon and all night and that he remembered Jewell leaving for a while and coming back but that he had no recollection whatsoever of the check in question or even going to the bank. At this point defense counsel’s offer to have defendant write the name of the payee for comparison purposes was refused by the court on the grounds it would be self-serving.

William Lawning, a social worker at the Alcoholic Treatment Center of Alton State Hospital, testified that he first met defendant at the hospital on March 15, about two months after the check incident. In his opinion defendant was a chronic alcoholic when admitted to the hospital and that this condition had existed for an indeterminate period prior thereto. It was also his opinion, based on a hypothetical question, that defendant, as an alcoholic, could have endorsed the check and engaged in the activities described at the bank without having any present memory of such events, but he admitted that he had no Icnowledge as to whether or not a chronic alcoholic could act knowingly and intentionally. Myron Wood, a furnace repairman and president of a House of Good Hope, (Halfway House for alcoholics) was offered as a witness and objected to by the State. After his offer of proof revealed that he would testify that he was a former alcoholic and that on three separate occasions he too had engaged in activities over a day and more of which he had no recollection, his testimony was refused by the court as having no relevancy. The vice-president, Mr. Gitcho, testified on defense that he had first authorized cashing the check on the assurance of Mr. Foley that he recognized the defendant as the payee named, but that he withdrew his authorization when Mr. Foley changed his mind. He also testified that the records of the bank revealed that defendant had previously been a depositor in the bank.

Defendant first argues that the trial court committed reversible error in refusing to allow the jury to compare defendant’s in-court writing with the alleged forged endorsement. He argues that if the payee can be permitted to sign his name so that the jury could compare it with the endorsement, then to refuse defendant the same privilege gives rise to a double standard. In addition, as authority for his contention, he cites Ill. Rev. Stat., ch. 51, par. 50, which reads: “In all courts of this state it shall be lawful to prove handwriting by comparison made by the witness or jury with writings properly in the files or records of the case, admitted in evidence or treated as genuine or admitted to be genuine, by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the court.” Defendant misconstrues the meaning of the statute. Its purpose is to permit a sample of handwriting for comparison purposes where there can be no question of its genuineness. As stated in 29 Am.Jur.2d, Evidence 810, “* * * It is only when a writing is written, not by design but unconstrainedly and in the natural manner of the writer so as to bear the impression of the general character of his chirography as the involuntary and unconscious result of constitution, habit, or other permanent cause, that it furnishes any satisfactory test of genuineness.” Here, there is no question that the payee did not endorse the check, rather it is the defendant, who in effect denies the endorsement. Under such circumstances the rule is clear that defendant had no right to offer in evidence as a comparison some writing of his which he made after the controversy over the signature arose. To permit such evidence to go to the jury would amount to nothing more than giving defendant an opportunity to fabricate evidence for himself by changing the style and character of his handwriting so as to deceive the jury. (See People v. Rosenbaum, 299 Ill. 93; Shinn v. Settle, 222 Ill.App. 428.) Nor was such evidence admissible for the purpose of showing that defendant was under some degree of intoxication at the time he signed the check, for care in writing in one instance and carelessness or clumsiness in another proves nothing. We therefore find that the trial court’s denial of defendant’s in-court handwriting speciman was proper.

Next defendant contends that the State did not prove beyond a reasonable doubt that it was he who tried to pass the forged check, or, that if he did endorse the check, there was no proof that he did so with intent to defraud, the contention being that his act was not one of free will but was the result of an alcohol induced amnesia. Tied in with the latter argument is the contention that the court erred in not permitting a witness to testify as to his own personal amnestic experiences as an alcoholic. From the record it is undisputed that defendant did represent himself as the payee and that he did endorse the check with the payee’s name. He does not seriously deny this, rather he merely says he does not remember it. His argument appears to be that because he now suffers from amnesia concerning the incident he therefore was not responsible for his acts. Such a conclusion finds no support whatsoever in the record, and we believe it to be wholly unwarranted. Memory failure of greater or lesser degree is not uncommon following a heavy drinking spree, whether or not the person is a chronic alcoholic. Without any medical opinion to the contrary it would seem obvious that amnesia is an aftereffect of drinking and not the causation of acts committed while drinking. It is undoubtedly on such reasoning that the trial court excluded testimony of another alcoholic’s amnestic experiences and we find no error in such ruling.

The real question, though only indirectly argued, would appear to be whether chronic alcoholism deprives a person of his free will so as to incapacitate him from forming the requisite intent to commit the crime of forgery. No medical testimony was offered by defendant, and the only evidence touching on the subject was that of the social worker who testified that he had no knowledge one way or the other as to whether a chronic alcoholic could act knowingly or intentionally. We are aware that chronic alcoholism as a disease is presently under serious study by the medical profession, but until the results of such study are completed and brought to our attention we cannot conclude that alcoholism is a form of insanity which entirely deprives an individual of his free will thereby negating such intent as may be necessary to prove a crime. At this point in time we conclude that proof of chronic alcoholism is not per se sufficient to raise the issue of criminal responsibility, except perhaps on a charge of public drunkenness. To the same effect see Salzman v. United States, 131 App.D.C. 939, 405 Fed.2d 358; People v. Walcher, 42 Ill.2d 159.

Apart from defendant’s alleged chronic alcoholism and amnesia he further contends that he was so intoxicated at the time of the incident that he was incapable of forming the necessary intent. He cites the fact that he had been drinking gin for an afternoon and an entire night, that the forged signature was so badly written, so clumsily misspelled, and that his entire activities as described by the bank employees were so ludicrous that there can be no question of any intent to defraud. The picture thus drawn by counsel is at variance with the State’s evidence, for defendant was described as appearing normal in his actions and appearance, steady on his feet and coherent in his conversation. He did not appear intoxicated though alcohol could be smelled on his breath, and the fact that he misspelled the payee’s name was not so unusual as to arouse the teller’s suspicion as she was accustomed to regular customers from time to time nervously misspelling their own names. Under such circumstances it is the function of the jury to weigh the testimony and determine the credibility of the witnesses and we cannot say that such evidence was so unsatisfactory as to raise a reasonable doubt as to plaintiff’s guilt, but to the contrary we find the verdict justified. People v. Friedman, 4 Ill.2d 414; People v. Klemann, 383 Ill. 236.

Finally, defendant contends that his sentence was excessive. At his hearing in mitigation and aggravation it was determined that defendant was 41 years of age and that he had been convicted of four previous felonies ranging from robbery, to larceny, to sale of heroin. The only testimony offered by defendant was his own to the effect that he was married, had one child, was expecting another and that he had stopped drinking. As we have reiterated in a number of recent cases (People v. Lampley, Agenda No. 70-162, post, at 282, and People v. Dodd, Agenda No. 71-58, (Ill.App.2d)), the authority of a reviewing court to reduce a sentence should be applied with considerable caution and circumspection (People v. Taylor, 33 Ill.2d 417); and the burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. (People v. Nelson, 41 Ill.2d 364.) Here we find a lack of mitigating circumstances justifying a reduction of defendant’s sentence. The penalty imposed is within the limits of one to fourteen years as set by the legislature (Ill. Rev. Stat., ch. 38, par. 17—3), and there is ample time between the minimum and maximum terms to make the sentence truly indeterminate.

The judgment of the circuit court of Madison County is affirmed. Under these circumstances, we find no basis to change the sentence imposed by the trial court.

Judgment affirmed.

JONES, J., concurs.

Mr. JUSTICE GEORGE J. MORAN

dissenting:

I would order a substantial reduction of the sentence in this case because the sentence is not proportionate to the seriousness of the offense. See my dissent in People v. Lampley, post, at 282.


author: Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Shelby, Defendant-Appellant.
    (No. 70-120;
    Fifth District
    August 17, 1971.

      Rehearing denied October 8, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Saul R. Leibowitz, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant appeals the sentence of not less than two nor more than ten years imprisonment imposed upon him following his plea of guilty to the crime of robbery.

It appears from the record that defendant, accompanied by two co-defendants, both of whom were women, beat and robbed an elderly woman service station proprietor. The victim was hospitalized for seventeen hours following the attack. The women co-defendants took no active part in the robbery or beating but were present at the time, served as lookouts and shared in a division of the proceeds. The co-defendants were charged with robbery but later entered pleas of guilty to the reduced charge of theft and were fined. Upon entering his plea of guilty to the crime of robbery defendant made application for probation but this was denied and a sentence of not less than two nor more than ten years imprisonment imposed. An indictment charging the defendant with beating and robbing the same woman service station operator on an occasion approximately three weeks earlier was dismissed upon his plea of guilty to the present charge. Defendant had a prior conviction for which he received a suspended sentence. The nature of the offense for which the suspended sentence was imposed does not appear.

Defendant testified in support of his application for probation that he had been drinking at the time of the occurrence and that approximately two weeks before he had lost heavily in gambling and needed money to pay his rent. He also testified he was working, holding down two jobs, and had a family consisting of a wife and two children with another child on the way.

It is defendant’s contention in this appeal that since his two co-defendants were permitted to enter pleas of guilty to the reduced charge of theft and received only fines as punishment it was an abuse of discretion when he was not accorded like treatment, and the action of the trial court in imposing a sentence upon him when his co-defendants received only fines constitutes a denial of equal protection of the law. Defendant argues that he has shown himself to be remorseful and contrite and that the trial court erred in ignoring the probation report (which is not in the record) and imposing a penitentiary sentence. Defendant asks that he be granted probation or that his sentence be reduced.

The purposes to be achieved by sentencing are to make the punishment proportionate to the seriousness of the offense, to protect society from further offenses and to recognize the possibility of rehabilitating the individual offender. (People v. Loyd, 125 Ill.App.2d 196, 260 N.E.2d 63; People v. Lillie, 79 Ill.App.2d 174, 223 N.E.2d 716.) Fundamental fairness and the creating of a respect for law require that defendants who are simüarly situated may not receive grossly disparate sentences. People v. Haynes, (Ill.App.2d), 266 N.E.2d 172.

We are unable to isolate the justification upon which defendant relies in equating his conduct during the robbery in question with that of his co-defendants so as to require a similar sentence. It was he who engineered and actually perpetrated the crime during which he administered a severe beating to an elderly woman and forcibly took $100 from her. The part played by his co-defendants was to serve as lookouts and share the proceeds of the robbery. The disparity in the sentences imposed obviously stems from the disparity of the conduct, which is substantial. It certainly cannot be said that there was any departure from fundamental fairness because of the disproportionate sentence given defendant. The record furnishes ample support for the action of the trial court so that it affirmatively appears that the defendant was not deprived of equal protection of the law. Nor in our opinion did the trial court display any prejudice or abuse of discretion in imposing sentence upon defendant. Our Supreme Court has consistently held that where it is contended that the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, it should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of Section 11 of Article II of the Illinois Constitution which requires that all penalties shall be proportioned to the nature of the offense. (People v. Richardson, 43 Ill.2d 318, 253 N.E.2d 420; People v. Smith, 14 Ill.2d 95, 150 N.E.2d 815.) Considering the conduct of the defendant in his commission of the offense and his background the punishment imposed is not excessive and reduction of his sentence upon this appeal is not justified.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.