author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Thomas Pierce et al., Defendants-Appellees.
    (No. 11919;
    Fourth District —
    September 5, 1973.

      Basil G. Greanias, State’s Attorney, of Decatur, (Lawrence R. Fichter and Patrick M. Walsh, Assistant State’s Attorneys, of counsel,) for the People.
    Kenneth Kinser, of Decatur, for appellees Thomas Pierce and Thomas Hasbrouck.
    Dwight Doss, of Monticello, and James W. Johnson, of Woollen, Brown & Hawkins, of Decatur, for appellees William Goodman and Bruce Goodman.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal by the People from judgments of the circuit court of Macon County entered April 27, 1972. The judgments quashed a search warrant and suppressed evidence seized by police officers on January 12, 1972. Oral argument was waived. Because of the confused state of the record, including disagreement as to what the trial judge ruled, it is necessary to go into the procedural and factual background. Most of this information has been acquired, not from the briefs, or excerpts from the ' record, but rather from a tedious examination and analysis of the record on appeal. Actually this appeal involves judgments entered in four separate cases, at least one of which bears no apparent relationship with any one or more of the others.

The order of events is as follows:

On January 12, 1972, Officer Virgil Stolz of the Decatur Police Department filed a complaint for a search warrant which sought authority to search the person of Thomas Hasbrouck and the premises occupied by him and Thomas Pierce at 825 West North Street, in Decatur, Illinois, including the upstairs apartment and grounds, and the basement, for instruments, articles and things which have been used in the commission or which constitute evidence of the offenses of burglary, possession of a controlled substance, and sale of a controlled substance, and to seize a quantity of controlled substances and amphetamines, barbiturates and amphetamines described as MFG#:TAT B 7.8, red or pink in color, singly or in packets.

On February 10, 1972, in cause 72 CF 15, the grand jury returned a four-count indictment charging Thomas Pierce and Thomas Hasbrouck with (1) unlawful possession of a controlled substance, to-wit: amphetamines, in that they possessed with intent to deliver the drugs; and (2) unlawful possession of a controlled substance in that they knowingly possessed a quantity of amphetamines; and (3) unlawful possession of hypodermic needle or syringe; and (4) unlawful possession of cannibas in excess of 30 grams, all offenses having been committed on January 12, 1972.

On February 10, 1972, in cause 72 CF 16, the grand jury returned a two-count indictment charging the defendants Bruce Goodman, William Goodman, Thomas Pierce and Thomas Hasbrouck with the offense of burglary of the office of Dr. L. L. Rubel on January 16, 1972, and with the offense of theft of property exceeding $150, the property being owned by Dr. Rubel and consisting of a quantity of amphetamines, barbiturates, other controlled substances and medical syringes and hypodermic needles.

On February 10, 1972, in cause 72 CF 18, the grand jury returned an indictment charging the defendant William Goodman with the offense of burglary of the office of Dr. Vincent P. Zarcone, the offense allegedly having occurred on the 17th or 18th of November, 1971.

On February 10, 1972, in cause 72 CF 51, the grand jury returned an indictment charging William Goodman and Bruce Goodman with the offenses of (1) possession of amphetamines with intent to deliver; and (2) the unlawful possession of a quantity of amphetamines, both offenses allegedly committed on January 12, 1972.

On February 23,1972, in cause 72 CF 15, defendants-appellees Thomas Hasbrouck and Thomas Pierce filed their “Motion to Quash Search Warrant and to Suppress Illegally Seized Evidence”. The relief sought was the quashing of the search warrant above referred to, as well as the suppression of the following items of evidence:

“(a) 1500 to 2000 pills
(b) a quantity of hypodermic needles
( c) a quantity of fix kits
(d) a quantity of syringes
(e) a quantity of other pills
(f) a quantity of marijuana
(g) a quantity of marijuana pipes
(h) a quantity of miscellaneous personal property.”

No written motions to quash and suppress appear in the record in cases 72 CF 16, 72 CF 18, or 72 CF 51. At the hearing on the motion, counsel for defendants in the last three designated cases indicated that they had either filed identical motions in those cases or adopted the motion filed in 72 CF 15, and the hearing was apparently conducted on that premise. Paragraphs 7, 8, 9 and 10 of the motion read as follows:

“7. The Defendant, Thomas Pierce, demanded that police obtain a valid search warrant before searching the apartment at 823 [sic 825] West North Street, therefore, the police did not have permission to exercise a warrantless search.
8. In the time between the Defendant’s denial of the police request to search and the issuance of the search warrant in question; reliable witnesses who are residents of the buildings; saw unidentified police officers enter the building and heard these officers enter and go through the defendant’s apartment.
9. This search without the Defendant’s permission and before the issuance of a search warrant was illegal under the United States Constitution and the Illinois Revised Statutes and the fruits of this search should be excluded from the consideration of the Court.
10. There is no way to distinguish between evidence seized in the warrantless search and that seized in the search made with the warrant. Therefore, this evidence cannot be admitted on the grounds of a proper search warrant. To do so would be to effectively abrogate the defendant’s rights with respect to his privacy and home, as guaranteed by both federal and state law.”

Other portions of the motion challenged the validity of the search warrant.

The motions to quash and suppress were heard on March 8, 1972. Briefly summarized, the evidence indicates that officers went to the apartment on the second floor of a house located at 825 West North Street in Decatur, Illinois, during the afternoon of January 12, 1972. It appears that defendants Pierce and Hasbrouck lived there. The officers told Pierce that they were investigating narcotics and controlled substances violations and asked Pierce’s consent to search the apartment, Pierce refused. He was arrested and taken to police headquarters. Officer Stolz went to the State’s Attorney’s office and was in the process of securing the search warrant in question. At the suggestion of an investigator in the State’s Attorney’s office, officers of the Decatur Police Department were called and directed to go to the Pierce apartment and arrest all persons found within in order to prevent destruction of evidence. Access to the second floor apartment, in which Pierce and Hasbrouck resided, is normally gained by entry through the front door of the house, thence up a stairs. The officers found the front door of the house locked. The Wellers, who occupied the first floor apartment, permitted (on request) one of the officers to go through the Weller apartment to the common hall into which the front door of the house opened. This officer then unlocked the front door from the inside and the other officer entered.

Both went upstairs to the Pierce-Hasbrouck apartment. They testified that the door to the apartment was ajar. They knocked several times and identified themselves but received no response. They then entered, walked down a hall and looked into the rooms to ascertain whether anyone was present. They observed no one. They testified that they observed no narcotics or contraband, that they were looking for persons, not things, and that their sole purpose in entering the apartment was to effectuate their order to arrest all persons found in the apartment. They also testified that they were only in the apartment for two or three minutes and then waited outside until Stolz arrived with the search warrant, following which a complete search ensued.

On behalf of defendants the Wellers, occupants of the first floor apartment, testified that they heard persons walking around in the apartment, the sound of furniture being moved, and that persons were present in the apartment for a much longer period of time than the two or three minutes as related by the officers.

Prior to the commencement of this hearing the State’s Attorney and defense counsel agreed that the hearing would first be directed to the issue raised by paragraphs 7 and 8 of the motions. The trial judge stated “again to try to organize or to see what we’re hearing, paragraphs 7 and 8 raise a matter which if found to be true, would solve all the balance. In other words if there was an illegal entry, search and seizure without permission, without authority — a valid warrant, and the result was the obtaining of illegal evidence, that is commingled with any subsequent evidence so that you couldn’t sort out, on the proof of that it’s over.” The assistant State’s Attorney responded, “The People concede that point — The People will concede the point that even if we had obtained a valid warrant, that if prior to that time they — there had been an illegal search, there wouldn’t be — it would be a moot point.” The trial judge then stated, “All right. Now is there any quarrel with that organization, taking the more vital question first, illegal search and seizure as far as contentions, entry without permission, without warrant?” All counsel agreed that they would indeed address the problem of whether or not an illegal search and seizure had occurred prior to the search conducted under the authority of the warrant, and the hearing was confined to that issue. At the conclusion of the hearing of March 8, the trial judge deferred ruling until the following day. On March 9, in the presence of counsel the trial judge orally ruled that the motions to quash and suppress were allowed. In stating his reasons for the ruling he stated, in part, “* * * unquestionably a man’s apartment cannot be entered for a search against his consent without legal process of a valid search warrant. When an entry cannot thus be made for a search, can entry be made for purported purpose of making arrest of anyone present, and by that subsequent entry in effect make a search? * * * This problem in this case arises when the policemen legally barred from entry to make a search, then cross the threshold subsequently to take into custody anyone found therein. The crossing was not rendered legal by the mere fact that the door was slightly ajar s * * and that silence throughout the apartment prevailed. The trespass that was then committed, even though purportedly to secure the premises and preserve any possible evidence, created a taint that permeates the technical requirements of an acceptable search and seizure. * * * This ruling is not to say * * * that the Court is accepting as true the defendants’ version that an actual search occurred without a search warrant. The Court is saying that the technical requirements for a lawful entry of the defendant’s apartment were not fully complied with as required by law and thus the ensuing search proceedings must be suppressed.”

On March 22, 1972, the State’s Attorney filed a petition for rehearing. In essence this motion urged that the trial judge had not considered the validity of the search warrant in question, nor had he heard evidence on that issue which had been raised in defendants’ original motions and that defendants’ had the burden of proof on that issue. On March 23, 1972, the petition for rehearing was heard. At this hearing, among other things it became apparent that the State’s Attorney and defense counsel disagreed as to what the trial judge had held on March 9th. The State’s Attorney said “If I understand the Court’s ruling correctly it is that the officers made an illegal entry into the apartment and that any subsequent entry, legal or otherwise, and products obtained therefrom was tainted by reason of the illegal entry.” Defense counsel stated “****** once it was determined that the first search was illegal due to an illegal entry or due to tainted evidence, it was not necessary, * * * The Court’s ruling, ruled that the evidence be, was illegally seized and, of course, the search invalid * * * I believe the Court’s ruling was based on

the fact there is no way to distinguish between evidence discovered or seized in a second search. I don’t think it is necessary that each article be defined as being found in the first or second search. The Court’s ruling was that the search was illegal, the first search regardless of what the second search had produced.” The trial judge then remarked that “There is to the objective of getting a clear, concise, complete but inexpensive record.” He also stated, “Do counsel by any chance have before you what is now an old case in which Justice Gunn while he was on the Supreme Court was passing on the question of a voluntary confession? And in ruling on that he states that when the cat is illegally let out of the bag and can’t be returned to the bag, the damage is done and any ensuing confession is ruled invalid, is not a voluntary confession within the rules. I think there he uses the word ‘tainted’, but he talked about the cat being let out of the bag and can’t be put back. That is the case I was thinking about when I ruled, that is the very foundation for my ruling, and * * *. It’s not the Wellers’ testimony and it’s really the testimony of the policemen themselves that they entered, they went throughout the hall and looked in every room and they made a, what I termed a search. * * * that once you have corruption, you can’t correct it; * *

At this juncture the following colloquy occurred between the court and counsel:

“MR. JOHNSON: May I ask the Court if its former ruling or ruling made in the hearing earlier still stands as the Court’s ruling in this case?
THE COURT: You’re asking what?
MR. JOHNSON: Whether the Court is changing its ruling on this case after the original hearing — is that the opinion that will stand?
THE COURT: Well, it’s the same as far as I am concerned. What I’m doing is saying petition to reconsider denied. I am not changing my position, in that I am saying there was a mistake made, and the mistake that was made that the officers entered the apartment without authority, having been previously denied entry. I haven’t changed it at all, but I’m trying to clarify the theory, and the theory is what came from — at least in my thinking — from this old deal, Justice Gunn’s position on a voluntary confession.
MR JOHNSON: But you did rule that there was a search?
THE COURT: No, I didn’t. 1 did not. I said there was a trespass of the premises. I don’t know if there was — there could have been a search, in that the entry made a search possible. They claimed that they didn’t make a search. They only went and looked around but they created circumstances where a search was possible, and as I pointed out then — and this off of the record. There’s no point in building this up where somebody may have to pay for it.”

On April 27, 1972, the trial judge entered a written order quashing the search warrant and suppressing the evidence. The findings of fact are contained in paragraph 6 of the order and read as follows: “The Court further finds that an illegal entry and trespass was made by the City of Decatur, Illinois, Police Officers, of the premises at 825 West North Street in the said City of Decatur, Illinois, on the 12th day of January, 1972, prior to the issuance of a search warrant authorizing a search of said premises while said premises were then and there the residence and place of abode of Thomas Pierce and Thomas Hasbrouck.” His conclusions of law are set forth in paragraphs 7 and 8 (paragraph 8 being stated in the alternative) of the order and are as follows:

“7. That said illegal entry and trespass tainted and permeated the technical requirements of an acceptable and legal search and seizure.
8. That the defendants, William Goodman and Bruce Goodman, are not required to prove a possessory or proprietary interest in the premises or property seized,
OR
8. That the defendants, William Goodman and Bruce Goodman are entitled to the protection of the Fourth and Fifth Amendments to the United States Constitution and Article I of the Illinois Consitution.”

We have recited, in detail, the foregoing remarks of the trial judge and counsel, together with pertinent portions of the written order since the State’s Attorney insists that no search occurred at the time of the initial entry into the premises and that * * the Court made a finding of fact that there had been no prior search in view of the positive evidence that there was none.” He refers to a comment made by the trial judge at page 102 of the Report of Proceedings to the effect “I don’t think the evidence supports that there was a search in view of the positive evidence there was none, and only circumstantial evidence that there was or could have been.”

Counsel for defendants insist that the trial judge did make a finding that the officers made a search at the time of their initial entry referring to that portion of his remarks made at the March 23rd hearing where he stated “* * * they went throughout the hall and looked in every room and they made a, what I termed a search.” We note that thereafter, during the same hearing, and indeed on the following page of the transcript when counsel inquired if the court had ruled that a search had been made the court responded, “No, I didn’t, I did not. I said there was a trespass of the premises. I don’t know if there was — there could have been a search, in that the entry made a search possible.” The written order contains no finding that a search was made during the initial entry nor does it contain a finding that no search occurred. There are portions of the record, as above indicated, which tend to support each of the contrary contentions. We do not propose to settle this point. It is not our function to speculate as to what the trial court held, intended to hold, didn’t hold or didn’t intend to hold.

We have some further observations about this record. Only one notice of appeal appears in the record. It appears in the common law record pertaining to case 72 CF 15. We assume that a proper notice of appeal was filed in the other three cases, that assumption is based on a search of the records in cases 72 CF 16, 18 and 51, each of which contains a docket entry, which recites that a notice of appeal was filed. Only one order appears in the record, and it too appears in the common law record pertaining to case 72 CF 15. We assume the identical order was entered in cases 72 CF 16, 18 and 51, and again this assumption is predicated upon an examination of the docket sheets in each of the last three mentioned cases, which contain identical entries made April 27, 1972, and read “Defendants’ tender order upon ruling made on motion to suppress. Tendered order examined by the People. Tendered order entered this date on suppression of evidence.”

We note further that no application was made, nor order entered in this Court consolidating these four cases for purposes of appeal nor authorizing the record in one case to stand as the record in all. Neither appellant’s brief, nor any of the appellees’ briefs explained the presence in this court of four separate cases comprising a single appeal. No brief nor any evidence introduced during the hearing on the motion explains or relates the defendants Goodman to the issues raised. Their names are not mentioned in the evidence nor in any of the briefs except to recite that they had filed motions to suppress. We were obliged to read the report of proceedings in order to determine how these four cases arrived here under the guise of a single appeal, and finally ascertained, from docket entries made by the trial judge, that the four cases were ordered consolidated, by him, on motion of the State’s Attorney, for purposes of appeal. We are unaware of any statute or rule which authorizes such an order in the trial court.

Appellant’s brief contains two assignments of error, to-wit:

1. Whether the trial court erred in suppressing the evidence seized pursuant to a lawfully obtained search warrant on the basis of a prior illegal entry, where there was no relationship shown between the prior entry and the contemporaneous issuance of the search warrant.

2. Whether the Court erred in failing to rule on the validity of the search warrant pursuant to which the evidence at the scene was seized.

With reference to point 2, the People argue that it was agreed at the beginning of the original hearing that if the court ruled that there was an illegal search prior to the issuance of the warrant all evidence seized pursuant to the warrant ought to be suppressed, and that since the trial court did not find that a search was conducted during the initial entry it was error for him not to rule on the validity of the search warrant. Since we have declined to hold here as to what the trial judge did or did not hold there, we will not consider this assignment of error.

In his reply brief the State’s Attorney, pursuant to leave granted by this court, raised the question of the standing of the two defendants Goodman to move to suppress the evidence in question. The appellees Goodman filed a brief in response to the issue of standing. We note that following the court’s oral ruling made at the close of the hearing on the motion to suppress, counsel inquired whether the court’s ruling applied to the defendants Goodman since they were not present or occupying the apartment at the time of the “illegal search and seizure.” The trial judge responded:

“I don’t know where the defendants Goodman come into this picture other than their counsel’s presence, and was evidently joining in the motion for whatever effect it has upon those defendants they haven’t been mentioned in the evidence. The charges I know nothing except there are pending charges. I have the file in 72 CF 16 where they’re named as defendants. I haven’t examined their motion during what I heard; their names were never mentioned as far as being present or in possession or anything else. I don’t know where they come in on this * * * This ruling is not as to defendants. This ruling is as to evidence and as far as saying this evidence can’t be used, it would apply to anybody against which it would be used against, is my off-hand opinion, and again I am not familiar as to specifically how they’re affected by the ruling. I think it would follow that any illegally seized evidence could not be used against any person.”

We share the puzzlement of the trial judge on this point. His subsequent order finding that the Goodmans had standing was made in an evidentiary vacuum.

There is no evidence that either of the Goodmans was present in the apartment when the evidence was seized; there is no showing that the People intended to use the evidence against the Goodmans; there is no showing of a possessory or proprietary interest either in the premises or in the evidence itself; there is no showing that either or both of the Goodmans were overnight guests of Pierce and Hasbrouck. We do not mean to suggest what evidence would have supported the trial judge’s finding that the Goodmans had standing to move to suppress the evidence in question; rather, we emphasize the fact that there was not a shred of evidence introduced, in the hearing on the motion to suppress, upon which the finding could be predicated or sustained here. Section 114 — 12(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12(a)) provides that “A defendant aggrieved by an unlawful search and seizure may move the Court for the return of property and to suppress as evidence anything so obtained * *

This portion of the statute provides that “a person aggrieved” may move to suppress evidence. The statute does not appear to allocate the burden of proof on that issue. In People v. McNeil, 53 Ill.2d 187, 290 N.E.2d 602, the Illinois Supreme Court held: “* * * we adhere to the rule requiring a defendant to establish the manner in which his constitutional rights have been violated before permitting him to challenge the validity of a search and seizure.” This holding squarely allocates tire burden, on the issue of standing, on the defendant. The fact that the defendants Goodman are named as co-defendants with Pierce and Hasbrouck in one of these cases is a circumstance which does not, in and of itself, bestow standing. The question of derivative standing has finally been resolved in Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, in the following language which holds that a contention of illegal search and seizure in violation of Fourth Amendment guarantees “* * * can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing. * ” * We adhere to * * * the general rule that Fourth Amendment rights are personal rights which, like- some other constitutional rights, may not be vicariously asserted.” Since, as we have observed, the evidence is totally lacking on the issue of standing, there is simply no evidentiary basis for the finding of standing as to William Goodman and Bruce Goodman. The order quashing the search warrant and suppressing the evidence, as to them, is therefore reversed.

The parties and the trial judge were dealing with the application of the exclusionary rule of evidence which implements the constitutional guarantee embodied in the Fourth Amendment and which specifies' “The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures * * The purpose of the rule, stated in general terms, is to penalize the securing of evidence in violation of constitutional guarantees by denying to the prosecution the use of evidence so obtained. (Mapp v. Ohio, 367 U.S. 643.) The essence of the issue is that if invasion of the defendant’s guarantee against unreasonable search and seizure yields evidence or clues which lead to evidence (as in Silverthorne Lumber Co. v. United States, 251 U.S. 385), which the prosecution seeks to use against him, the evidence so obtained is inadmissible. Here the trial judge made a finding that a trespass had been committed. The record is unclear as to whether he found that the trespass involved a search. He made no finding that by means of the trespass the prosecution acquired information upon which the request for the search warrant was predicated, or that any evidence was observed, obtained or seized. The mere finding of trespass does not invoke the rule. On this record, absent a clear and specific ruling on the question as to whether or not a search was conducted at the time of the initial entry into the apartment, we have no choice but to remand for further findings.

We therefore remand this case with directions that the trial judge make a specific finding as to whether a search was made during the initial entry into the premises. In order to avoid fragmenting the issues on appeal, we further direct that a specific finding be made as to the validity of the search warrant and the search conducted under authority of the warrant. Appropriate findings of fact and conclusions of law should be stated pursuant to the mandate of section 114 — 12(e) of the Code of Criminal Procedure. A supplemental record of the proceedings had upon remand, is ordered to be filed in this court, including a transcript of additional evidence taken, if any. The issues undecided by this opinion will be held in abeyance pending the filing of the supplemental record.

Reversed in part, and remanded with directions.

CRAVEN, P. J., and TRAPP, J„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE SMITH

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred Williams, Defendant-Appellant.
    (No. 11941;
    Fourth District —
    September 5, 1973.
    John F. McNichols, District Defender, of Springfield, (Bruce L. Herr, Staff Attorney, of counsel,) for appellant.
    John G. Satter, Jr., State’s Attorney, of Pontiac, and John A. Beyer, of Circuit Attorney Project, of Bloomington, (Bruce Brown, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of tihe court:

This is an appeal by the defendant from a conviction of deviate sexual assault and of battery in a bench trial and his sentence of 4 to 5 years in the penitentiary to be served consecutively to the sentence he was then serving. The sentence imposed was on the count charging deviate sexual assault and no sentence was imposed on the count charging battery.

In this court the defendant charges (1) that the indictment for deviate sexual assault is void in charging in die disjunctive that the defendant “by force compelled another person” to perform or submit to an act of deviate sexual conduct, (2) that the defendant’s guilt was not established beyond a reasonable doubt and (3) that the court abused its discretion in denying the defendant’s petition for probation and sentencing him to a term of 4 to 5 years.

Deviate sexual conduct, as defined by section 11 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 2), means “any act of sexual gratification involving the sex organs of one person and the mouth or anus of another”, and section 11 — 3 of the Criminal Code provides, with respect to that “(a) Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault”. (Emphasis supplied.) Count I of this indictment was framed in the words of the statute. Even though a charge which follows the language of the statute defining the crime uses the disjunctive and it will be sufficient under some circumstances, it will not be sufficient where the statute names disparate and alternate acts any one of which will constitute the offense and as so charged the indictment is void. (People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340.) However the fact that two words intimately associated in their meaning are stated disjunctively does not render an indictment uncertain provided it does not deprive the defendant of notice of the specific nature of the charge against him or impairs a certainty that is requisite if double jeopardy is to be avoided. People v. Rosenfeld, 25 Ill.2d 473, 185 N.E.2d 236.

The defendant cites People v. Bendig, 91 Ill.App.2d 337, 235 N.E.2d 284, where a man was charged with compelling a woman to “submit to an act of oral copulation”. The facts of the case revealed that the act committed was fellatio. The defendant then argued that there was a fatal variance between the indictment and the proof, contending that if a man forces a woman to submit to oral copulation, that language describes the act of cunnilingus. The court in that case rejected the defendant’s argument and construed the word “submit” as defined by Webster is to yield to tihe will of another and that the force used on the prosecutrix required her to submit to the will of the defendant. As we read the statute, the terms “perform” and “submit” are basically interchangeable with both requiring involuntary action by the victim as a result of the force applied by the defendant. To perform an act of deviate sexual conduct patently requires participation by two persons. Deviate sexual conduct defined and proscribed by the statute is specific. When a victim by force submits to an act of deviate sexual conduct he is the passive actor. When by force he is required to perform the act of deviate sexual conduct, he is the active actor. In either event he is an involuntary actor and it is the involuntary submission or participation by force which the statute proscribes. There is nothing in the statute which suggests that voluntary participation by both parties is proscribed by the statute here involved. In our judgment therefore the words “submit” and “perform” are so intimately connected and the conduct described so specifically stated in the statute that the use of the disjunctive does not render the indictment void for uncertainty nor does it raise any question of double jeopardy.

A lengthy discussion of the facts in this case is not necessary. The victim testified that he was in his cell when several others came into his cell, beat him up with their fists on the head and upper part of his body. The defendant was right in front beating on .him with his fists in the face. He became unconscious and the next thing he knew he was being laid on the bed. The inmate then pulled his pants down and had anal intercourse with him — not only the defendant but the others also did this. The defendant was holding him down by his arms and legs and all of the inmates who entered the cell treated him likewise. A physician and surgeon testified that he examined an inmate of the Pontiac Branch of the Illinois State Department of Corrections named Raymond Foster. He had no independent recollection of the circumstances and could not say whether a typed accident report which had been typed from his longhand notes from the examination of Ray Foster was correct or not. Another inmate testified that he was in the cell next to the complaining witness Foster and heard screaming which awakened him. He was able to look into Foster’s cell through his mirror. Foster called to him. He saw the defendant about 45 minutes later and the defendant was standing in front of the cell as this witness left his. This witness could not identify anyone who was in Foster’s cell. The defendant and another witness testified that they were nowhere near the cell and the basic defense was that they were not near the occurrence. The trial court stated that he did not believe the testimony of either the defendant or of his witness. The defendant was 20 years old, had completed the 10th grade and his previous record consisted of an involuntary manslaughter charge for which he was placed on 5 years probation in 1968 and an armed robbery conviction for which he had received a sentence of 2 to 3 years and that would expire in April 1973. The trial court had the opportunity to see, observe and listen to the witnesses and is in a better position to determine their credibility than are we. Even in a sex case, testimony of one witness if positive and credible is sufficient to sustain a conviction even if contradicted by the accused. (People v. Bell, 112 Ill.App.2d 161, 251 N.E.2d 367.) Unless this court finds the evidence so improbable as to raise a reasonable doubt of guilt, the conviction should not be disturbed. People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182; People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294.

It seems clear that the defendant was not entitled to be admitted to probation. Under the IHinois Code of Corrections, the authorized sentence of imprisonment for a Class 1 felony is a minimum term of 4 years and a maximum term of any term in excess of 4 years. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1.) When the defendant committed the instant offense he was serving a term of probation for involuntary manslaughter and a sentence of imprisonment for armed robbery. Accordingly, he is not eligible for probation under the law, either at the time he was sentenced (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 1(a)(4)), or under the new Unified Code of Corrections which became effective January 1, 1973. (Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1005 — 5—3(g).) The sentence under the old Code and under the new is 4 to 14 years. The trial court explained that he would have given a lesser sentence had the statute permitted, but saw no reason to go beyond the 5 year period so far as the maximum sentence was concerned.

The defendant urges that under section 5 — 5—3 of the Unified Code of Corrections (par. 1005 — 5—3), a periodic imprisonment is one of the options available to the court in the sentencing of a defendant convicted of a felony and the defendant requests this court to either adjust the sentence to one of periodic imprisonment with appropriate conditions or to remand the case to the trial court for resentencing in light of the availability of periodic imprisonment under the new Code of Corrections. We find no authority in the Code for this court as a court of review to adjust a sentence by imposing a periodic imprisonment with appropriate terms or conditions. Nor do we feel that if it was within our power to do so, the record in the instant case would justify the use of that option. Likewise the commentary to section 5 — 5—3 of the Code (par. 1005 — 7—8) would frown on the practice of imposing a sentence of periodic imprisonment to be served consecutive to a sentence of imprisonment.

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

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Holmes, Defendant-Appellant.
    (No. 11767;
    Fourth District —
    September 10, 1973.

      James R. Streicker, Assistant Appellate Defender, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Lawrence R. Fichter, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

dehvered the opinion of the court:

On May 3, 1971, the grand jury returned an indictment charging the defendant-appellant John Holmes with the offense of cruelty to children (Ill. Rev. Stat. 1969, ch. 23, sec. 2368). Count II of the indictment charged aggravated battery committed upon the same child, Timothy Lee Holmes, his three-year-old stepson. The issues were tried to a jury, which returned verdicts of guilty on both counts of the indictment. The trial judge imposed identical sentences of 2 to 5 years on each conviction, the sentences to run concurrently.

The defendant first argues that the child abuse statute (IU. Rev. Stat. 1969, ch. 23, sec. 2368) is constitutionally infirm in that it is “* # * violative of due process in that it is so vague and indefinite that it fails to provide adequate notice of the conduct it proscribes.” We find it unnecessary to reach this question since, for reasons hereinafter set forth, we reverse defendant’s conviction on this charge.

Defendant also urges that the trial judge erred in refusing an instruction which read:

“A step parent may exercise reasonable discipline over his stepchildren. He is held to the same standard as a natural parent.”

This instruction was offered in connection with the charge under the child abuse statute, and in view of our disposition of that charge we decline to consider this assertion of error.

Defendant argues that the trial judge erred in restricting his voir dire examination of jurors as to * * whether they understood and would apply * * *” the presumption of innocence. The portion of the record which gives rise to this contention is as follows:

“Q: You have two children?
A: Yes, sir.
Q: Have you ever whipped your children?
A: Once or twice when they needed it.
Q: As you sit there now do you believe that the defendant is innocent of the charges against him?
A: I could not tell you, sir. I have not heard the evidence.
Q: As you sit there now do you believe he is innocent?
MR. FIGHTER: I will object, Your Honor, to the form of the question.
THE COURT: Sustained. I sustained the objection.
MR. EVANS: I’m sorry, Your Honor.
Q: Do you understand the rule of law that every person is innocent until they are proven guilty?
A: Yes.
Q: So do you believe that he is innocent now?
MR. FIGHTER: I will object again, Your Honor.
THE COURT. Sustained. Mr. Evans. I don’t want you to go into the law. I will go into that after the case is over and the evidence is over.”

In support of this argument defendant cites People v. Lobb, 17 Ill.2d 287, 161 N.E.2d 325, which held that 0 ° a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error.” (17 Ill.2d 287, 300.) In affirming defendant’s conviction in Lobb, the court also stated, “The only positive restriction in Rule 24 — 1 is that the jurors shall not be examined concerning matters of law * 6 *. [N]o reason is perceived for questioning them as to legal principles or precepts beyond ascertaining whether or not they are willing to accept and follow the instructions concerning the law of the case.” (17 Ill.2d 287, 302.) Tested by these standards the court did not err in sustaining the objection above noted. Counsel had first endeavored to secure from the juror an opinion as to the guilt or innocence of the defendant (without referring to the presumption of innocence), to which inquiry the juror responded that he had no opinion, having heard no evidence. He then stated that he understood the presumption of innocence. Counsel then repeated his effort to secure an opinion from the juror who had previously stated that he had none. It was clearly not error to sustain the objection.

Defendant urges that the evidence here, was insufficient to establish defendant’s guilt beyond a reasonable doubt. We disagree. Briefly summarized the record discloses that the child was taken to the hospital where he was examined by Dr. Philip Sharkey, Dr. Walter Murfin and Dr. George Chiligiris. The child was in shock and in a moribund condition. There was a bruise on the left temple, the abdominal wall, and bruises on the calves of both legs; there were numerous contusions on tlie bowel wall. The defendant told Dr. Chiligiris that he had whipped the child, which accounted for the bruises on the legs. The doctor testified that he was told the child had fallen from a tree, but that the injury was out of proportion to the history obtained. Dr. Murfin performed surgery on the child and repaired a tear in the small bowel and several tears in the lining of the abdomen; peritonitis had set in. Dr. Murfin was told by defendant that the child had fallen from a porch. He testified that in his opinion the injury had to be the result of a blow by a blunt object and that the stated injury did not conform to this opinion. Dr. Sharkey also testified that the amount of injury was out of proportion to a fall. The child was not taken to the hospital until the day following the incident and was near death on arrival. There is ample evidence to sustain this conviction.

Lastly, defendant urges that the trial court erred in entering judgment and sentences on the two offenses since they arise from the same conduct. With this contention we agree. The acts which encompassed the violation of the child abuse statute clearly encompassed the proof upon which the conviction for aggravated battery was predicated, and only one sentence should have been imposed,, and that for the greater offense of aggravated battery. (People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316; People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1; People v. Ritchie, 66 Ill.App.2d 302, 213 N.E.2d 651.) The People conceded this point during- oral argument.

The sentencing provisions of the Unified Code of Corrections apply to cases pending on direct appeal. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Aggravated battery is a Class 3 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 12— 4(d)), and it is provided in section 5 — 8—1(b)(4) of the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005 — 8—1(b) (4)) that the maximum term for a Class 3 felony shall be any term in excess of one year and not exceeding 10 years and in section 5 — 8—1(c)(4) of the Code that'the minimum term shall not exceed one third of the máximum sentence. The minimum term of the aggravated battery sentence is in excess of one third of the maximum sentence,

Defendant’s conviction under the child abuse statute (Ill. Rev. Stat. 1969, ch. 23, sec. 2368) is reversed. The conviction of aggravated battery is affirmed, and the cause is remanded for resentencing on that charge in conformity with the Unified Code of Corrections.

Reversed in part, affirmed in part and remanded with directions.

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


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William B. Hayes, Jr., Defendant-Appellant.
    (No. 11838;
    Fourth District —
    September 10, 1973.

      Rehearing denied October 1, 1973.

    N. E. Hutson, of Monticello, for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Thomas L. Knight, Assistant State’s Attorney, and Gary C. Duerkoop, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted upon his negotiated pleas of guilty to the offenses of resisting arrest and reckless driving. After an evidentiary hearing, the trial court, which did not participate in the plea negotiations, denied defendant’s motion for probation and sentenced defendant to a term of 20 days upon the charge of resisting arrest and a fine of $250 upon the charge of reckless driving. The sentences imposed were those recommended by the State’s Attorney under the terms of the plea negotiations. The fine has been paid. Defendant appeals the denial of probation.

In March, 1971, defendant was indicted for aggravated battery upon one Barden, a police officer, for resisting arrest by one Cook, a police officer, and for driving while under the influence of intoxicating liquor. The several offenses occurred as a series on one date. Following an initial plea of not guilty, defendant then procured two continuances of the trial setting and obtained discovery of witnesses and police reports.

On the date of trial defendant’s pleas of not guilty were withdrawn and pleas of guilty entered. The cause was continued for sentence to December 21, 1971, and on that date defendant, having obtained other counsel, moved for a continuance of 60 days for sentence, asserting purported matters of family business. A continuance of 30 days was granted to January 4, 1972. On December 29, defendant filed a petition for probation. The report of the probation officer expressed skepticism that defendant would abide the rules, but did recommend probation.

Here, defendant argues that the court summarily denied probation because defendant had negotiated a plea and that such denial was an abuse of discretion.

We find that the court’s admonition on the taking of the respective pleas of guilty was full and that a factual basis for each plea is clearly established in the record from the statements of defendant in open court. In denying probation, the court stated that all the facts and circumstances of the case were taken into consideration. The record shows that defendant had prior convictions for reckless driving, one of which included a charge of fleeing a police officer.

The review of the trial court’s denial of probation is to determine whether the trial court did, in fact, exercise discretion or whether it acted in an arbitrary manner. People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381.

In People ex rel. Ward v. Moran (S.Ct. No. 45197, June 1973), (Ill.) (N.E.2d), the court approved language that probation should be left to the sound discretion of the trial court, which is in a better position to weigh the interests of society and the individual in each case. We have examined the evidence offered at the probation hearing, as well as the other matters of record. Under the authority of Supreme Court Rule 23 we- find that there has been no abuse of discretion.

The judgment is affirmed.

Affirmed.

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


text:
    Howard Kostbade, Plaintiff-Appellant, v. William C. Telford, Defendant-Appellee.
    (No. 11960;
    Fourth District —
    September 10, 1973.
    Michael I. Campbell and Jon D. Robinson, of Hull, Armstrong & Campbell, of Decatur, for appellant.
    Richard R. Grummon, of Springfield, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Pursuant to the provisions of section 41 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 41), the court entered an order assessing costs and attorney’s fees against the plaintiff, and in favor of the defendant, in the sum of $2556.58. Plaintiff appeals.

Section 41 of the Civil Practice Act authorizes the taxing of reasonable attorney’s fees upon a finding of:

“Allegations * a * made without reasonable cause and not in good faith and found to be untrue * *

The complaint filed on March 24 was prepared for plaintiff by a man who had the status of secretary or accountant for plaintiff. The latter signed it, but in the following May could not recall that he had read such complaint. No summons was requested or served. Defendant, who was then campaigning for political office at an election to be held in April, entered his appearance, answered with denial of the allegations and demanded an immediate hearing. Plaintiff, who then had secured legal counsel, moved to strike the answer of defendant. The latter then procured leave to withdraw his answer and filed a motion to dismiss the complaint. Such complaint was dismissed. After plaintiff’s deposition in discovery was given, plaintiff filed an amended complaint which alleged that plaintiff, in reliance on telephone representations of defendant, purchased an interest in an oil well by sending a check to one Gentile and that he thereafter issued a further check to Gentile for costs of completion and that plaintiff endeavored to contact defendant for purposes of an accounting, but that defendant failed or refused to make any accounting. Plaintiff’s discovery deposition given prior to such amended complaint disclosed that plaintiff had refused to purchase such oil interest from defendant, but, in fact, sent a check for such interest following the telephone advice of a friend and sometime business associate who had purchased an interest in the oil well. Plaintiff had, in fact, sent the checks payable to Gentile to the business associate, and the second or subsequent check for costs of completion was also sent to such associate. So far as the record shows, defendant was not advised of such check. Documentary evidence shows that plaintiff promptly received a receipt and agreement concerning his interest which shows Gentile to be the operator of the well. Plaintiff admitted receiving a check in refund of expenses from Gentile prior to commencing the action. As to the demands made for an accounting, it appears that plaintiff had telephoned the office of defendant on unspecified occasions but that defendant was absent. No messages were left and no .letters were sent by plaintiff.

The record discloses that plaintiff received an accounting when he made a request of Gentile following the dismissal of the original and first amended complaint. He thereafter suggested the dismissal of the action against defendant for mootness.

Defendant’s motion to assess costs and fees was filed within 30 days of the order of dismissal and was timely made. Ford Hopkins Co. v. Faber, 121 Ill.App.2d 143, 257 N.E.2d 227; Eugene Matanky & Associates v. Onixt, 74 Ill.App.2d 53, 219 N.E.2d 865.

Plaintiff urges that Fred Nemerovski & Co. v. Barbara, 106 Ill.App.2d 466, 246 N.E.2d 124, controls and that since the cause was dismissed upon motion it was improper to tax costs and fees since the motion admitted facts well pleaded. We note that the validity of Barbara has been questioned. (S.H.A. Supp. 1973-1974, ch. 110, par. 41, Supplement to Practice Notes.) Barbara is further distinguishable in that the order dismissing the complaint was reversed upon appeal, and as an incident thereto the cross-appeal from the denial of the attorney’s fees was rejected.

This record shows that plaintiff signed a complaint drafted by an office employe either without knowledge of or without regard to the nature of the allegations therein. As stated in plaintiff’s deposition:

“[I] merely wanted an accounting from anybody.”

His own files showed that he was advised that Gentile was the operator of the well, and that at the time of the deposition he had made no effort to obtain information from Gentile. The amended complaint differs from the first only in the omission of an allegation that plaintiff sent his first check promptly to defendant. The amended complaint was filed after knowledge of defendant’s denial by the answer, and after plaintiff’s own deposition disclosing reliance upon plaintiffs own associate in making the investments, and the facts as to the so-called “endeavors” to demand an accounting. Defendant cited Perlis v. Exchange Nat. Bank of Chicago, 87 Ill.App.2d 369, 231 N.E.2d 681, for the proposition that fees cannot be taxed when the complaint has been amended. In that case it was not claimed that the allegations in the complaint were untrue or that the party knew that they were untrue. In this amended complaint the allegations were renewed. The record discloses bad faith on the part of the pleader in that bad faith includes making statements known to be untrue. (Grandys v. Spring Soft Water Conditioning Co., 101 Ill.App.2d 225, 242 N.E.2d 454.) The record is clear that all of defendant’s expenses and fees were incurred as the result of plaintiffs pleading in disregard of facts known to him. The court taxed the fees after hearing evidence of services performed and their value. We have examined the record at length and find no abuse of discretion in the order below.

The judgment is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Robert C. Waldron, Jr., Plaintiff and Counterdefendant, Respondent-Appellant, v. Elizabeth Ann Waldron, Defendant and Counterplaintiff, Petitioner-Appellee.
    (No. 72-210;
    Fifth District —
    August 28, 1973.
    Donald R. Mitchell, Paul G. Schoen, and W. Charles Grace, all of Carbondale, for appellant.

      Charles H. Hines, of Carbondale, (Twomey & Hines, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the plaintiff-husband in a divorce action from a decree and order of the circuit court of Jackson County, entered subsequent to the original divorce action, under the court’s continuing jurisdiction. The original decree of divorce entered by the circuit court on July 23, 1968, provided for custody in the defendant-wife, and; “3. That the plaintiff shall pay to the defendant the sum of $180 per month for each of the minor children of the parties as child support, this being a total sum of $360 per month.” On the date the divorce decree was entered, tire legal age of majority for males in Illinois was twenty-one years of age.

At the time the divorce decree was entered, Mark Calvin Waldron, the eldest son, was fourteen years of age and enrolled in Carbondale Community High School District No. 165. While attending high school he worked at a local hamburger establishment from June, 1970, until December, 1970. After graduating from high school, Mark was employed by the Carbondale Highway Department as a highway engineer’s assistant from June, 1971, until December, 1971. Shortly after graduating from high school, Mark enrolled as a part time student in a John A. Logan College, a junior college in Carterville, Illinois.

Effective August 24, 1971, the Illinois Legislature reduced the age of majority for males from twenty one years of age to eighteen years of age. Shortly thereafter, plaintiff discontinued making monthly support checks for Mark. After the child support was discontinued, defendant, as petitioner, filed a petition requesting tire entry of an order to compel the plaintiff to continue paying support for Mark for educational purposes or, in the alternative, for an order increasing the amount of support payable to Gary Wayne Waldron, the other minor child of the parties.

The hearing on the petition was held on January 4, 1972, and a decree was entered by the court on January 31, 1972, which ordered the plaintiff to continue support payments for Mark and provided that support payments for each child of the parties were to continue until the child reached twenty one years of age. The court did not apply the‘statute changing the age of majority and concluded that the intention of the parties was that support should continue until the age of twenty one. The court also held that the support was proper for educational purposes, under Ill. Rev. Stat, ch. 40, § 19.

Appellant' entered a post trial motion for a retrial or rehearing, and defendant moved, for attorney fees and for support payments during the pendency of the action. These motions were heard simultaneously on June 1, 1972. On June 20, 1972, the court ordered that payment of attorney fees and past due payments of child support be paid within fifteen days of appeal and that $180 monthly support be paid for Mark as and for temporary support pending appeal or further order of the court. From the court’s judgments and orders the plaintiff appeals.

Several issues are raised. The defendant-appellee maintains that the appellant did not perfect or protect his right of appeal due to his failure to file a petition in this matter. It is her position that the appellant has failed to make application for modification of the decree as to child support by a sufficient petition, as required by the last paragraph of section 19, chap. 40, Illinois Revised Statutes, 1971. Appellee’s position would not be without support if taken at face value. (See Edwards v. Edwards (1970), 125 Ill.App.2d 91, 259 N.E.2d 820; Trimble v. Trimble (1958), 16 Ill.App.2d 408, 148 N.E.2d 612; and Stark v. Stark (1971), 131 Ill. App.2d 995, 269 N.E.2d 107.) However, appellant is not requesting a modification of the divorce decree. Rather, his termination of support payments is in accord with his interpretation of the divorce decree. Therefore, we cannot hold that his appeal is barred by a failure to file a petition to modify the decree.

Appellant contends that the court below erred in its determination that the word “minor” as found in the original decree of divorce meant other than that status of an individual before attainment of majority. Appellant contends that the court erred in its interpretation in two respects: first, by basing its order upon a mistaken belief concerning the record, and secondly, by refusing to consider the applicability of chapter 3, section 131, Illinois Revised Statutes, 1971, which lowered the age of majority for males from twenty one years of age to eighteen.

It is appellant’s position that the word “minor” means the status of an individual before the attainment of majority. He cites the case of Wilson v. Wilson (1970), 122 Ill.App.2d 142, 257 N.E.2d 810, for the proposition that the meaning of “minority” in divorce actions is determined by the appropriate statutory provision. The appropriate statutory provision which was in effect at the issuance of the divorce decree in question provided that males became of age when they reached twenty one years of age. (Ill. Rev. Stat, ch. 3, sec. 131.) Whether the subsequent revision of that provision has any effect on the situation here depends on several factors.

This is a question of first impression in our jurisdiction, but the results of our research indicate that most jurisdictions which have considered it held that a statutory change of the age of majority does not affect the pre-existing rights of a person, and child support payments are a matter of vested right. (Needler v. Needler (1971), 131 Ill.App.2d 11, 268 N.E.2d 517; Gregory v. Gregory (1964), 52 Ill.App.2d 262, 202 N.E.2d 139; Hawlett v. Hawlett (1956), 10 Ill.App.2d 513, 135 N.E.2d 224.) Although most jurisdictions have dealt with questions involving the raising of the age of majority, our sister state, Missouri, is one of the few which has had occasion to consider the question posed by lowering the age. In the case of Dougal v. Fryer (1830), 3 Mo. 40, 22 Am.Dec. 458, in which the age of the children at the time the statutory change became effective did not appear with certainty, a subsequent change in the law lowering the age of majority from twenty five to twenty one was. held not to change or affect the' limitation imposed by the grant of an estate to three minors, with the condition that they could not seU it until the youngest had reached thé age of twenty five, since the limitation, being legal at the time it was imposed, would be good for the time prescribed. In Reisse v. Clarenbach (1875), 61 Mo. 310, in which it appeared that anyone under the age of twenty one years was protected from the operation of the statute of limitations’ but that the legislature changed the age of majority of females from twenty one to eighteen, it was held that the act was not retrospective, so as to operate adversely on those females who were eighteen at the time of its passage, they being protected from the operation of the statute of limitations until they were twenty one.

Only one jurisdiction, Kentucky, has considered the exact question that faces us; and it held that the father was not relieved of his duty of support. In Wilcox v. Wilcox (Ky. 1966), 406 S.W.2d 152, it was held that a father was not entitled to relief from a decree directing him to pay child support until his child reached the age of majority or became self-supporting, although the legislature subsequently reduced the age of majority from twenty one to eighteen. This position was affirmed in Collins v. Collins (Ky. 1967), 418 S.W.2d 739 and Kirchner v. Kirchner (Ky. 1971), 465 S.W.2d 299.

Although aU of these cases involved decrees resulting from negotiated settlements and were decided on the principle that the intention of the parties governs, we believe something closely akin to that principle is applicable in the instant case. As the appellant pointed out in his brief, it has long been a rule of construction in determining the meaning of judgments or decrees that one must examine the situation as it existed at the rendition of the judgment. (People v. Thompson (1918), 283 Ill. 87, 119 N.E. 41.) The situation as it existed at the rendition of the divorce decree included á statutory provision that the age of majority for males was twenty one years. It was twenty one, and not eighteen, that was the reference point at that time for determining what was meant by “minor" children The trial court was .therefore correct in ordering that the child support payments be continued until the children reached twenty one years of age; and, even assuming that the holding was based on erroneous reasons, reversal would not be warranted. Where the decisión of the trial court is correct, it will not be reversed because the court gave a wrong or insufficient reason for its rendition. People v. York (1963), 29 Ill.2d 68, 193 N.E.2d 776; City of Kankakee v. Small (1925), 317 Ill. 55, 147 N.E. 404; Troup v. Hunter (1921), 300 Ill. 110, 133 N.E. 56.

Appellant also argues that the court erred in its holding that Mark was not emancipated. We find support for the court’s holding in the case of Shuff v. Fulte (1951), 334 Ill.App. 157, 100 N.E.2d 502, which rejected a father’s contention that his obligation of support terminated when his children became employed and self-supporting. The basis of the decision was the court’s finding that the children had sought employment for their self-preservation, since their mother was unable to maintain them entirely by her earnings from domestic washing and ironing and general housework for hire. Like Mark, the children in the Shuff case had gone to work at an early age. The reasoning is even more persuasive when applied to the instant case, where the mother does not even work outside the house and must herself rely on public aid for support. Further, the children in the Shuff case had abandoned the parental home, while the eldest son in question here is stiH living with his mother. We find no error in the court’s holding that he was not emancipated.

Appellant next contends that the court erred in finding that the appellant remained obligated for the support of Mark Waldron for educational purposes. Chapter 40, section 19, Illinois Revised Statutes provides, in part:

“The court may, on application, from time to time, terminate or make such alterations in the allowance of alimony and maintenance, and the care, education, custody and support of the children, as shall appear reasonable and proper. However, after the children have reached majority age, the court has jurisdiction to order payments for their support for educational purposes only.”

The court’s decree of January 31, 1972, specifically found “[t]hat said Mark Calvin Waldron is stiH dependent upon his parents for support and maintenance and support for educational purposes, within the meaning of Section 19.” The court’s order of June 20, 1972, specifically found:

“That the amount of $180 per month is a reasonable amount for the cost of maintenance, tuition, books, travel and other expenses of said child necessary to his continuing to attend said college 0 6 0 and that said child is still dependent upon his parents for. maintenance and support for educational purposes.”

The court in Elble v. Elble (1968), 100 Ill.App.2d 221, 225, 241 N.E.2d 328, 330, summarized the law on this question very succinctly:

“The Appellate Court has previously considered the question of whether a court may include in a divorce decree an order directing a parent to pay the expenses of a child’s college education. [Citations.]
Since the amendment to Section 19 of the Divorce Act (Chapter 40, Section 19, Ill. Rev. Stat.) effective August 31, 1967, there appears to be no question that such an order may be entered with respect to both minor children and children who have attained majority.”

As the appellant admits, his case of Maitzen v. Maitzen (1959), 24 Ill. App.2d 32, 163 N.E.2d 840, which deals with interest and aptitude standards before such payments may be ordered, was decided prior to the enactment of the statute as it reads now. The statute (Section 19) specifically empowers the court to make the order it did, and the order should not be reversed on the basis of such weak authority.

Appellant finally attacks the circuit court order to pay monthly support pending appeal. We find no merit in this theory that the order is erroneous because it is not specifically authorized by statute. Questions of whether temporary alimony and child support should be allowed and the amount are matters generally within the discretion of the trial court in view of the conditions and circumstances of each case. (Glover v. Glover (1971), 132 Ill.App.2d 284, 268 N.E.2d 218.) Unless there is clearly an abuse of discretion, the decree will not be disturbed on review. (Bush v. Bush (1942), 316 Ill.App. 295, 44 N.E.2d 767; Harding v. Harding (1892), 144 Ill. 588, 32 N.E. 206.) We find nothing to suggest that the court abused its discretion.

We therefore affirm the judgment and orders.

JONES and CREBS, JJ., concur.


author: Mr. PRESIDING JUSTICE CRAVEN.

text:
    James Pearl, Plaintiff-Appellant, v. Hiram F. Probus, Defendant-Appellee.
    (No. 11949;
    Fourth District —
    September 10, 1973.
    Thomson & Mirza, of Bloomington, (James Walker, of counsel,) for appellant.
    Gillespie, Burke & Gillespie, Professional Corporation, of Springfield, (Robert E. Gillespie, of counsel,) for appellee.
   Opinion by

Mr. PRESIDING JUSTICE CRAVEN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie J. Hunter, Defendant-Appellant.
    (No. 12015;
    Fourth District —
    September 10, 1973.

      John F. McNichols,, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Defender, of counsel,) for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana, (Thomas L. Knight, Assistant State’s Attorney, and John W. Howard, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Willie J. Hunter was indicted for the crime of armed robbery; the case was tried to a jury, which returned a verdict of guilty. Defendant was sentenced to an indeterminate term of 6 to 15 years.

Defendant contends that his sentence should be vacated and the cause remanded for resentencing “* # * because the trial court had an

inadequate informational basis to sentence the defendant” or, alternatively, the sentence should be reduced, primarily because of the disparity in the sentence with that imposed upon defendant’s accomplice who received a 5 to 15 year sentence.

We affirm. Defendant cites People v. Bradford, 1 Ill.App.3d 38, 272 N.E.2d 259, for the proposition that the trial judge is under an affirmative duty to procure sufficient information upon which to predicate his sentencing responsibility. Bradford, however, dealt with a plea of guilty, and, as we there observed, “” * * the trial judge, at the time of imposing sentence, had before him the plea of guilty and the recitation contained in the indictment together with the recommendation of the Assistant State’s Attorney.” Here, the case was tried before a jury, the defendant testified in his own behalf, and the complete details of the offense and defendant’s participation in the crime were within the knowledge of the trial judge. This record does not entail the “factual vacuum” involved in Bradford. It discloses that the trial judge was possessed of sufficient information upon which to form an intelligent, rational judgment in imposing sentence.

As to the disparity in the sentences imposed, defendant cites People v. Steg, 69 Ill.App.2d 188, 215 N.E.2d 854, and People v. Freeman, 49 Ill.App.2d 464, 200 N.E.2d 146. These cases are readily distinguishable. In Freeman, defendant’s accomplices received sentences of 1 to 3 years while Freeman was sentenced 10 to 20 years. The court stated, “We believe that the sentence should be reduced since the boys originally sentenced with defendant for the robberies received substantially smaller sentences.” (Emphasis added.) (49 Ill.App.2d 464, 468.) This language was quoted with approval in the Steg case where the sentences involved were 2 to 10 years and 5 to 20 years. The only difference between the defendant’s sentence here, and that imposed on his accomplice is one year on the minimum term. The accomplice did not receive a “substantially smaller” sentence within the holdings in Freeman and Steg.

Judgment affirmed.

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


author: Mr. JUSTICE SIMKJNS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Allen Hanna, Defendant-Appellant.
    (No. 12149;
    Fourth District —
    September 10, 1973.
    John F. McNichols, District Defender, of Springfield, (J. Daniel Stewart, Assistant Defender, of counsel,) for appellant.
    No appearance for the People.
   Mr. JUSTICE SIMKJNS

delivered the opinion of the court:

Defendant-appellant Steven Allen Hanna was indicted for the offense of attempt escape, and tried before a jury, which returned a verdict of guilty. Defendant was sentenced to an indeterminate term of 1 to 3 years, the . sentence to run consecutively to sentences previously imposed. The conviction was affirmed on direct appeal; (People v. Hanna, 1 Ill.App.3d 760.) On March 15, 1972, defendant filed, pro se, a “Petition for Relief of Judgment” pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72), which petition was later amended and alleged that at the time of the alleged offense and also at the time of trial there existed a bona fide doubt as to his sanity and competency to stand trial. Counsel was appointed and the trial judge conducted a detailed and thorough evidentiary hearing following which he denied section 72 relief.

The Illinois Defender Project moved to withdraw as counsel for defendant, and appended to the motion a brief in conformity with Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396. The record shows proof of service of the motion and brief upon the defendant. The motion was continued to enable the defendant to file additional suggestions, and notice of this opportunity was given to him. None were filed. In discharge of our responsibilities we have examined the record.

In the opinion of Dr. Manfred Kydan, who had examined the defendant on February 6, 1970, the defendant was “° * * well oriented in all fields, shows very good detailed memory for recent as well as remote events, is well aware of the charges against him and seems capable of cooperating with counsel * * As to sanity Dr. Kydan concluded that defendant “° * * shows a rather typical picture of a sociopathic personality ° * 0 it ° ° does not represent a state of psychosis now or to the best of my judgment at any time in the past * “ ° he was capable of planning and understanding his actions but acting out in anti-social fashion due to his poor lack of emotional control which is * * * not a psychiatric illness which would relieve him of responsibility for his actions.’" We see no point in detailing all of the evidence offered. None of it contradicted the opinion of Dr. Kydan.

: The granting of section 72 relief is dependent upon whether the evidence presented raised a bona fide doubt as to defendant’s sanity or competency. (People v. Anderson, 31 Ill.2d 262, 201 N.E.2d 394.) The trial judge found that the evidence raised no bona fide doubt, and an examination of the evidence clearly establishes that it would admit of no other finding.

We agree that this record discloses no justiciable issue for review and that the appeal is frivolous and without merit. Accordingly the motion of the Illinois Defender Project to withdraw as defendant’s counsel is allowed. The judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sammy Taylor, Defendant-Appellant.
    (No. 12024;
    Fourth District —
    September 10, 1973.
    John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Appellate Defender, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Patrick M. Walsh, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from a sentence of 1 to 7 years entered on a plea of guilty to burglary in the circuit court of Macon County. The plea was entered as a result of plea negotiations where the People agreed to abide by the recommendation of the probation officer and in event probation was denied, they would recommend the sentence of 1 to 7 years. Probation was denied.

At the probation hearing, it appeared that the defendant had no prior record of conviction except a speeding ticket, that there was a burglary charge pending against him in another county, that his employment possibilities were somewhat slim, and that in his 19 years of living there had been numerous conflicts with the law beginning sometime in 1967. After the burglary, he went to Wisconsin, was arrested there, and was returned to Decatur. He had likewise drifted to Indianapolis, and also spent a couple of weeks in Pennsylvania prior to his arrest. It would serve no useful purpose in detailing here all of his conflicts with the law-enforcing agencies, or with his motives for the present burglary. He threw a brick through a window of a business establishment and carried away a television set. He had borrowed a friend’s car and told that friend he was almost caught while carrying the television set to the car. He had no family nor children and had no job to go to. Under the circumstances, we cannot feel that the trial court abused its discretion in this case. In a hearing on aggravation and mitigation, arrests not resulting in conviction are not to be considered. It is otherwise as to probation. People v. Jackson, 95 Ill.App.2d 193, 238 N.E.2d 196; People v. Smith, 111 Ill.App.2d 283, 250 N.E.2d 178; People v. Moore, 133 Ill.App.2d 827, 272 N.E.2d 270; People v. Bowlin, 133 Ill.App.2d 837, 272 N.E.2d 282.

Both the People and the defense waived evidence in aggravation and mitigation, and the probation officer’s report was essentially the court’s main source of information concerning the defendant. It was offered in his behalf. It recommended a denial of probation. As was stated in Moore, at page 829, “However, by requesting a hearing for probation, defendant has permitted the State to introduce evidence of prior arrests which would not have been admissible against him in a hearing held solely in aggravation and mitigation. * * * Prior arrests which do not result in conviction may not properly be considered in passing sentence.” The determination of whether to grant or deny probation each must rest on its own factual bottom gleaned from the defendant’s past. We cannot say in this case that the trial court abused its discretion or acted arbitrarily in denying probation.

Under the Unified Code of Corrections, the defendant was guilty of a Class 2 felony (Ill. Rev. Stat, 1972 Supp., ch. 38, § 19 — 1(b)), and the term of imprisonment authorized is 1 to 20 years (Ill. Rev. Stat., 1972 Supp., ch. 38, § 1005 — 8—1). The sentence imposed here was 1 to 7 years, which leaves a reasonable spread within which the parole board may operate and give the defendant the opportunity to establish that his past is not the prologue for his future.

Accordingly, the judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    Lillie Hendricks, Admr. of the Estate of Everett Hendricks, Deceased, Plaintiff-Appellant, v. Shirley J. Deterts, Defendant-Appellee.
    (No. 12004;
    Fourth District —
    September 20, 1973.
    Harold H. Kuhfuss and Richard G. Hayes, both of Pekin, for appellant.
    Costigan, Wollrab, Fraker and Wochner, of Bloomington, for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

Plaintiff by her complaint sought to recover for the alleged wrongful death of Everett Hendricks arising out of a collision between two vehicles.

The defendant Shirley Deterts was the driver of a Pontiac automobile traveling in a westerly direction on a two-lane highway in McLean County. The decedent, Everett Hendricks, was driving a Buick automobile in an easterly direction. The collision between these two cars occurred on November 15, 1968 at about 6:50 P.M. It was then dark and rain was falling.

The complaint charged the defendant with negligence in three particulars: (a) that she failed to keep a proper lookout; (b) that she failed to drive her vehicle on the right half of the roadway; and (c) that she drove her vehicle at a speed greater than was reasonable and proper. An answer that was filed by the defendant denied these allegations.

The complaint was filed in November 1969; the answer was likewise filed in November 1969. In September of 1971, the defendant filed a motion for summary judgment, asserting that there was no genuine issue as to any material fact and that “The issue for determination on the question of liability is as to who was on whose side of the road at the time of the accident.” The motion further noted that although the defendant was subject to a denial of her right to testify by reason of section 2 of the Evidence Act, if permitted to testify, her testimony would be that the plaintiffs intestate was driving on the wrong side of the road. Her testimony at a coroner’s inquest was appended to the motion as was the testimony of a deputy sheriff which the movant described as showing “his inability to determine from the physical facts of the scene of the accident the cause of same”. Plaintiff s response to the motion noted the requirement of Supreme Court Rule 191 to the effect that an affidavit in support of a motion for summary judgment must affirmatively show that the affiant could competently testify. The response asserted that the defendant was not competent to testify.

Plaintiff then filed a motion to strike the motion for summary judgment. That motion to strike asserted that the sole issue was not as stated in the motion and asserted the existence of issues of material fact as to the issue of negligence and contributory negligence. In support of the motion to strike, the plaintiff appended the discovery deposition of the defendant and photographs of the scene of the accident to be exhibited to the court for inspection at the hearing on the motion to strike.

A subsequent amendment to the motion for summary judgment added a statement of another deputy sheriff and an affidavit of Harry Moretz, a deputy. Moretz in his affidavit described the scene the night of the occurrence and his finding as to skid marks on the day following the occurrence. His affidavit with reference to the latter point reads in part:

“It was too dark that night to see any skid marks so I went out the next day and noticed the tracks that led up to the hendricks [sic] car showing that the west end of the marks were in the eastbound lane of traffic and then as they proceeded east, they came into the middle of the road. I cannot recall the length of the skid marks and as I recall there was a gouge in the road made by one of the cars. I can’t recall where it was located in reference to the center of the road.”

The court granted the motion for summary judgment and entered judgment as to the entire cause of action for the defendant.

In Watkins v. Lewis, 96 Ill.App.2d 182, 237 N.E.2d 830, this court discussed the procedures applicable to summary judgment and quoted at length from Harp v. Gulf, Mobile & Ohio R.R. Co., 66 Ill.App.2d 33, 213 N.E.2d 632. The substance of our observations in Wdtkins is applicable here. Summary judgment is a drastic method of disposing of litigation and the right of a party to invoke that drastic remedy must be free from doubt. • (Brooks v. Dean Berenz Asphalt Co., 83 Ill.App.2d 258, 227. N.E.2d 100.) Summary judgment has as its purpose a determination of whether or not there is. any genuine triable issue of fact which must be passed upon. If the pleadings, discovery depositions, and the exhibits present a genuine issue as to any material fact, summary judgment should not be granted. The right of the movant to summary judgment must be free from doubt and his. motion and the affidavit and attachments appended to it will be strictly construed and must leave no question of the movant’s- right to judgment. Contrarywise, the affidavit filed in opposition-will be liberally construed.-

In this case, the complaint charged the defendant with negligence in. the three indicated particulars. The motion for summary judgment and the subsequent proceeding tended at most to negate one of those charges of negligence or perhaps tended more -strongly to indicate that the plaintiff s intestate may have been guilty of contributory negligence.

In our view, this record is far from sufficient to establish the defendant’s right to summary judgment.

It is not the function of a motion for summary judgment to try contested issues as to negligence and contributory negligence by affidavit and counter-affidavit, nor is it proper tó; consider in support of or in opposition to a motion for summary judgment evidentiary matter that would be inadmissible upon a trial of the issue. Waiver of objection to.evidence for purposes of the motion does not affect the issue of admissibility at trial. In this- case- as in Watkins,.such., facts as are established by the affidavit show the existence of a material fact which must be resolved through confrontation and tests of credibility only present during trial. • , . .

The..judgment of the circuit court of McLean County granting summary judgment is reversed and this cause is remanded for further proceedings. •

Reversed and remanded.

SMITH and TRAPP, JJ., concur;


author: Mr. PRESIDING JUSTICE GUILD

text:
    Albert Malecki et al., Plaintiffs-Appellants, v. First State Bank of Harvard, as Trustee under Certain Trust Agreement, et al., Defendants-Appellees.
    (No. 72-239;
    Second District —
    September 20, 1973.
    Glaeser, Burstein & Gates, of Dundee, for appellants.
    Caldwell, Berner & Caldwell and Hugh A. Deneen, both of Woodstock, for appellees.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The Circuit Court of McHenry County entered an order dismissing a suit for declaratory judgment seeking adjudication of the invalidity of certain ordinances passed by the city of Harvard and for injunctive relief. The suit was brought by three tax paying residents and by the Harvard Community Citizens Coalition. The Coalition did not join in this appeal.

Defendant First State Bank of Harvard, as trustee under trust # 104, the owner of record of two tracts of land contiguous to the city of Harvard, sought annexation to the city under the provisions of sections 11 — 15.1—1 et seq., of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 15.1—1 et seq.). After notice and hearing pursuant to section 11 — 15.1—3 the ordinances in question were adopted authorizing the execution of the proposed pre-annexation agreement and the rezoning therein proposed.

The complaint alleged that the ordinances were null and void because, among other things, the city failed to comply with section 7 — 1—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 7 — 1—1,) requiring notice to be given to the Fire Protection District and the Public Library District of which the land to be annexed is part; that because the pre-annexation agreement provided for the city to pay the cost of street lighting it was in violation of an existing city ordinance requiring the subdivider of any land to pay such cost; that the pre-annexation agreement as approved differed from that which was proposed before the Harvard Planning Commission.

The defendant moved to dismiss the complaint on the ground that it sets forth no justiciable issue and does not reflect the existence of any actual controversy; that it alleges no facts that the city violated the provisions of section 11 — 15.1—3 of the Municipal Code; and that the plaintiffs are affected no differently by the defendants’ actions than any other citizen or resident of the city. The trial judge entered the order of dismissal from which the three tax paying residents appeal.

Although not raised by the parties to this appeal, an action for declaratory judgment to test the validity of annexation proceedings is not an appropriate remedy. In Cipowski v. City of Calumet City (1926), 322 Ill. 575, 578, 153 N.E, 613, 614, the Supreme Court stated: “It has long ago been determined that quo warranto is the proper remedy to test the validity of annexation proceedings.” The Illinois. Supreme Court has consistently held that the proper remedy for questioning an annexation is by quo warranto, that injunctive relief is not available to determine the validity of annexation ordinances, and that a suit for a declaratory judgment is not a concurrent remedy. See also People ex rel. McCarthy v. Firek (1955), 5 Ill.2d 317, 125 N.E.2d 637.

In Edgewood Park # 2 Home Owners Ass’n v. Countryside Sanitary Dist. (1969), 42 Ill.2d 241, 243-245, 246 N.E.2d 294, 296-297, affirming 96 Ill.App.2d 161, 237 N.E.2d 838, the court considered a complaint filed by owner-residents and a Home Owners Association and found that the complaint was clearly within the declaratory judgment provisions of the Civil Practice Act, and stated:

“The scope of the Civil Practice Act is limited. Section 1 reads, in part, as follows: ‘The provisions of this Act apply to all civil proceedings, both at law and in equity, except in * * * quo warranto, * * * or other proceedings in which the procedure is regulated by separate statutes.’ (IH. Rev. Stat. 1967, ch. 110, par. 1.)
ft ft ft
We find the amended complaint insufficient under the Quo Warranto Act, but we express no opinion on the question of whether or not a proper complaint under that Act can be filed.”

For a sequel to this case, see People ex rel. Marre v. Countryside Sanitary Dist. (1972), 5 Ill.App.3d 747, 284 N.E.2d 308, cited by plaintiffs herein, in which the appellate cotut in reviewing the quo warranto proceedings brought by some of the same plaintiffs subsequent to the Illinois Supreme Court decision, invalidated the annexation ordinance there in question.

In view of our holding we do not regard it necessary to consider the other points raised by the parties.

We therefore hold that plaintiffs herein may not challenge the validity of annexation proceedings by a declaratory judgment action and the dismissal of the complaint by the trial court was proper for that reason.

The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD and DIXON, JJ., concur.


author: Mr. PRESIDING JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Floyd Brennecke, Defendant-Appellant.
    (No. 72-99;
    Second District —
    September 20, 1973.
    Linda West Conley, of Chicago, for appellant.
    William J. Cowlin, State’s Attorney, of Woodstock, (John D. Corby, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The Department of Public Works and Buildings, Petitioner-Appellee, v. Melvin D. Neace et al., Defendants-Appellants.
    (No. 72-173;
    Second District —
    September 20, 1973.

      Rehearing denied October 9,1973.

      Edward T. Graham, of Glen EHyn, for appellants.
    William J. Scott, Attorney General, of Chicago, (Calvert J. Gordon, of Righeimer & Righeimer, Special Assistant Attorney General, of counsel,) for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This is an eminent domain proceeding. Certain defendants appeal from orders denying their traverses and motions to dismiss (traverse) and from the granting of petitioner’s motion for immediate vesting of title (quick take).

Reversal is sought on two grounds: (1) the court erred by considering petitioner’s motion for quick take prior to conducting a hearing on defendants’ traverse; and (2) the evidence failed to support petitioner’s authority to proceed under the power of eminent domain.

On November 16, 1970, petitioner filed a petition to condemn various parcels of property for the purpose of constructing Federal Aid Route 61 as part of the State’s highway system. The petition alleged that authority to condemn was derived under section 4 — 501 of the IHinois Highway Code (Ill. Rev. Stat. 1989, ch. 121, sec. 4 — 501); that the construction of Route 61 was a public work, for public use; that the petitioner was authorized to acquire the property described in the petition; that a public purpose made the taking necessary; that offer of and negotiations toward compensation had failed.

The defendants are owners of two adjacent parcels of land located at the southwest corner of Swift and Old Army Trail Roads. Petitioner seeks to condemn the north 20 féet of each parcel.

On February 15, 1972, defendants each filed a traverse alleging in part that petitioner was not authorized to acquire their property by eminent domain and, further, that their property was not necessary for the petitioner’s purpose; that if found necessary, the amount sought was excessive. Ten days later, the petitioner filed a motion for quick take and the matter was set for hearing on March 9, 1972.

At commencement of the hearing, defendants asserted that, as a matter of jurisdiction, the court was precluded from entertaining petitioner’s motion for quick take prior to hearing the issues raised in defendants’ traverse.' The judge indicated, over objections, that he would proceed with the hearing on quick take and consider the traverse later in the course of the same proceeding.

Petitioner produced a sole witness who testified that Route 61 was to be a freeway connecting other freeways and arterial roads in Du Page County and would improve the flow of traffic in the interest of public safety. He also testified concerning the construction schedule, and the need to acquire the contested parcels at an early date in order to meet federal requirements. During and after examination of the witness, petitioners counsel interjected statements regarding the project.

Through this stage of the proceedings, defendants refused to either cross-examine the witness or introduce evidence, basing such action on the fact that the traverse had not yet been heard. Motion for quick take was allowed.

The court then indicated it would consider the traverse and, for these purposes, petitioner elected to adopt the earlier testimony of its witness. Defendants’ attorney had petitioner’s witness resume the stand. Cross-examination elicited the facts that neither Army Trail or Swift Road is a state highway and that the center line of Route 61 is over 1200 feet east of defendants’ property. The only other evidence introduced was a right-of-way plan which depicted defendants’ property and indicated those portions sought, but established no relationship between that property and Route 61. After argument by counsel, defendants’ motions were denied.

At the close of proofs, the court’s attention was called to defendants’ discovery motion (filed February 15, 1972) requesting that petitioners be ordered to submit all engineering data which might indicate the effect the proposed construction might bear upon their property. The motion was denied.

The applicable statute, the Eminent Domain Act, (Ill. Rev. Stat. 1971, ch. 47) clearly provides that as a prerequisite to petitioner’s right to proceed on a motion for quick take under section 2.2(c), the court must first (if not already resolved in the same proceedings) make three determinations, i.e., that petitioner ha$ authority to exercise the right of eminent domain, that the property sought is subject to the right, and that the right is not being improperly exercised in the particular proceedings (section 2.2(b)). It was therefore error for the court to proceed without first determining issues raised by defendants’ traverse.

Regardless of the procedural error, it is more significant that petitioner’s evidence, adopted from the quick take hearing, failed to meet the issues raised by defendants’ traverse. It is established that petitioner must be specifically granted the power of eminent domain and that such grant is to be strictly construed. (Department of Public Works & Bldgs. v. Ells, 23 Ill.2d 619, 621-622 (1962); Department of Public Works & Bldgs, v. Ryan, 357 Ill. 150, 154-155 (1934).) Further when, as here, a motion to dismiss has been filed, the burden is on petitioner to establish a prima facie case of its right to condemn. (City of Evanston v. Piotrowicz, 20 Ill.2d 512, 517 (1960); Board of Education v. City of Chicago, 402 Ill. 291, 298-299 (1949).) Petitioner must prove its case by competent evidence; unsworn statements of counsel or exhibits not in evidence are insufficient. Board of Trustees v. Lange, 28 Ill.2d 229, 231 (1963).

In the instant case, defendants’ traverse put in issue the petitioner’s authority to take their property, the necessity for including defendants’ property and the excessiveness of the property sought. While the court’s order of quick take made a finding in favor of petitioner on these issues, there was no evidence to support such finding. Evidence established only that, under section 4 — 501 of the Highway Code, petitioner had authority to condemn property for the construction of proposed Route 61 and that there was a need to construct such freeway for the public good. No evidence was offered to establish the relationship of that need to the taking of property more than 1200 feet distant from the proposed roadway, nor did any evidence refute the claimed excessiveness of such taking. Some questions placed in issue by defendants’ traverse remained unanswered.

The orders appealed are reversed and remanded with directions to hear the traverses and motions to dismiss upon such competent evidence as may be offered and to allow any amendments which the parties may desire.

Reversed and remanded with directions.

GUILD, P. J., and SEIDENFELD, J., concur.


author: Mr. JUSTICE THOMAS J. MORAN.

text:
    Catherine L. Sandus, Plaintiff-Appellant, v. Midlane Country Club, Inc., Defendant-Appellee.
    (No. 72-112;
    Second District —
    September 17, 1973.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellant.
    Diver, Ridge, Brydges & Bollman, of Waukegan, for appellee.
   Opinion by

Mr. JUSTICE THOMAS J. MORAN.