author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER O’MALLEY, Defendant-Appellant.
    First District (2nd Division)
    No. 81 — 733
    Opinion filed August 24, 1982.

      Santo J. Volpe, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Thomas A. Rieck, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Defendant was charged by indictment with two counts of official misconduct (Ill. Rev. Stat. 1979, ch. 38, par. 33 — 3(b)), and one count each of assault (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 1(a)) and battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a)(2)). After a bench trial, defendant was found not guilty of official misconduct and guilty of assault and battery. He was fined $500 on the assault conviction and $1,000 on the battery conviction.

Defendant raises three issues on appeal: (1) whether he was deprived of his statutory right to a speedy trial; (2) whether he was deprived of a fair trial by the prosecutor’s closing argument; and (3) whether the finding of the trial court was improper and inconsistent.

Defendant was a Cook County forest preserve ranger. On January 28, 1979, defendant’s patrol car was parked, blocking a roadway used to exit Caldwell Woods Forest Preserve, while he was writing a parking ticket. Paul Ferris and Alex Sipari, attempting to exit the forest preserve in their cars, complained about the blocked roadway. A scuffle occurred, during which defendant allegedly slammed Ferris against a van several times and punched at Sipari but missed. Defendant arrested Ferris and Sipari, charging them variously with assault, resisting arrest, and leaving an unattended vehicle with its motor running. They were handcuffed, placed in the squad car, and taken to the Village of Skokie police station for booking. We find nothing in the .record as to the disposition of the charges.

On March 19, 1979, after the incident received widespread publicity in a Chicago newspaper, the grand jury returned a four-count indictment against defendant charging him with two counts of official misconduct and one count each of assault and battery (indictment No. 79-1583).

The elements of official misconduct that defendant was charged with are: “A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts: *** (b) Knowingly performs an act which he knows he is forbidden by law to perform.” (Ill. Rev. Stat. 1979, ch. 38, par. 33 — 3(b).) Defendant was charged with one count of official misconduct based on the underlying offense of assault and one count based on the underlying offense of battery.

The circuit court dismissed indictment No. 79 — 1583 on October 26, 1979. The basis of the dismissal was prosecutorial misconduct before the grand jury. At the time of the dismissal, 125 days had expired from the term of 160 days in which the State was required to bring defendant to trial. Ill. Rev. Stat. 1979, ch. 38, par. 103-5(b).

On October 26, 1979, the State filed a notice of appeal from the dismissal order. On November 2, 1979, the State filed a docketing statement in the Illinois Appellate Court. In an order dated November 8, 1979, the appellate court set the following schedule for the appeal: record due January 25, 1980; appellant’s brief due April 24, 1980; ap-pellee’s brief due July 9, 1980; reply brief due July 22, 1980. The State did not file anything in the appellate court subsequent to its docketing statement.

On May 20, 1980, indictment No. 80 — C—3379 was returned charging defendant with the same four counts as in No. 79 — 1583. On May 21, 1980, the State filed a motion to dismiss the appeal in the appellate court which was granted on June 2, 1980. Defendant subsequently filed a motion to dismiss indictment No. 80 — C—3379, alleging violation of his statutory right to a speedy trial. The motion was denied by the trial court.

After a bench trial, defendant was convicted of assault and battery and fined $500 and $1,000. Defendant was found not guilty of official misconduct.

I

Defendant initially contends that he was deprived of his statutory right to a speedy trial. The Illinois speedy trial statute provides that when a defendant is not in custody, he must be brought to trial within 160 days from the date he demands trial. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(b).) At the time the first indictment against defendant was dismissed, 125 days had expired from the 160-day term. Defendant contends that the time when the State’s appeal was pending in the appellate court must be counted in computing the 160 days. The following timetable aids in understanding defendant’s argument:

Indictment No. 79 — 1583 returned. March 19,1979

Defendant demanded trial. April 2, 1979

Indictment No. 79 — 1583 dismissed. (Parties agree that 125 days had expired from term.) October 26,1979

State failed to file record in appellate court. January 25, 1980

State failed to file appellant’s brief in appellate court. April 24, 1980

Indictment No. 80 — C—3379 returned. May 20,1980

State filed motion to dismiss appeal. May 21, 1980

Defendant contends that the appeal by the State was a sham and a hoax, prosecuted solely for the purpose of evading the speedy trial statute. Consequently, the term should have started to run again on January 25, 1980, the date that the State purportedly abandoned its appeal by failing to file the record on appeal. Because defendant’s theory is rather novel and unique, there is no case law directly on point.

The three cases relied upon by defendant are all substantially different from this case. People v. Parker (1978), 59 Ill. App. 3d 302, 375 N.E.2d 465, involves a subsequent indictment against a defendant during the pendency of the initial indictment. The subsequent indictment was for essentially the same offenses as the initial indictment. In an attempt to prevent the initial indictment from being dismissed for violation of the speedy-trial statute, the State argued that the term started over upon the subsequent indictment. Both the circuit court and appellate court rejected this argument. People v. Griegel (1978), 64 Ill. App. 3d 508, 381 N.E.2d 369, deals with the issue of whether the 120-day term or the 160-day term applied to the defendant. People v. Newell (1980), 83 Ill. App. 3d 133, 403 N.E.2d 775, appeal denied (1980), 81 Ill. 2d 597, involves the issue of whether the defendant was placed twice in jeopardy by being recharged after the State nolle prossed the initial charge.

The language of Supreme Court Rule 604(a)(4), which specifically deals with this situation, is clear and unambiguous. It provides:

“The time during which an appeal by the State is pending is not counted for the purpose of determining whether an accused is entitled to discharge under section 103 — 5 ***.” 85 Ill. 2d R. 604(a)(4).

A situation analogous to the present one is where the initial charge against the defendant is dismissed upon a finding of no probable cause at a preliminary hearing and the defendant is subsequently recharged with the same offense. In such a situation, the speedy-trial term does not run during the period between the finding of no probable cause and the recharging, unless the defendant can affirmatively show that the State secured the finding of no probable cause in an attempt to evade the speedy-trial requirement. People v. Gimza (1977), 56 Ill. App. 3d 477, 480-81, 371 N.E.2d 1135, appeal denied (1978), 71 Ill. 2d 604; see People v. Toney (1978), 58 Ill. App. 3d 364, 367-68, 374 N.E.2d 695, appeal denied (1978), 71 Ill. 2d 605.

The speedy-trial term only runs when charges are pending against the defendant. (People v. Toney (1978), 58 Ill. App. 3d 364, 367.) Supreme Court Rule 604 (a)(3) provides that a defendant shall not be held in jail or admitted to bail pending an appeal by the state unless there are compelling reasons. (85 Ill. 2d R. 604(a)(3).) “The evil intended to be prevented by the speedy trial provision is wrongful incarceration rather than wrongful accusation. ***.” People v. Garcia (1978), 65 Ill. App. 3d 472, 475, 382 N.E.2d 371, appeal denied (1979), 72 Ill. 2d 583.

Another analogous situation is where the grand jury initially returns a no bill against the defendant and subsequently returns a true bill. We recently held that the speedy-trial term does not run during the interim period. (People v. Mitchell (1981), 95 Ill. App. 3d 779, 786, 420 N.E.2d 415, cert. denied (1982), 455 U.S. 944, 71 L. Ed. 2d 656, 102 S. Ct. 1441.) There is a presumption that the return of a no bill is an independent action by the grand jury, free from prosecutorial manipulation. Of course, a showing may be made to the contrary. People v. Mitchell (1981), 95 Ill. App. 3d 779, 786.

We believe the reasoning of these cases is equally applicable to the present case. After the dismissal of the first indictment by the trial court, no charges were then pending against defendant. He was not in custody or under any other restraint. It is apparent that the State did not deliberately procure the dismissal of the first indictment to evade the speedy-trial requirement. There is nothing in the record to support defendant’s allegation that the appeal by the State was a hoax.

Accordingly, we hold that defendant was not deprived of his statutory right to a speedy trial.

II

Defendant next contends that he was deprived of a fair trial by the rebuttal closing argument of the prosecution. The State waived its initial closing argument. Defendant’s brief in this court claims that 10 errors occurred in the State’s rebuttal argument, which covers 11 pages of transcript in the record. Defendant did not object at trial to five of these comments, and defendant’s post-trial motion simply alleged “[t]hat the closing argument of the prosecutor was prejudicial.” Further, defendant waived oral argument of the post-trial motion. Under these circumstances, we must hold that defendant has waived any objection to the State’s closing argument. It is plain that if no objection is made to a remark during closing argument at trial, it cannot be raised on appeal. (People v. Roberts (1981), 100 Ill. App. 3d 469, 476, 426 N.E.2d 1104; People v. Buckhana (1981), 99 Ill. App. 3d 889, 891, 425 N.E.2d 1297, appeal denied (1982), 88 Ill. 2d 552.) When only a general objection is made to closing argument, it must be specifically referred to in the post-trial motion to preserve the objection for appellate review. (People v. Turk (1981), 101 Ill. App. 3d 522, 530, 428 N.E.2d 510, appeal denied (1982), 88 Ill. 2d 552; People v. Bivens (1981), 101 Ill. App. 3d 8, 13, 427 N.E.2d 791.) Defendant does not contend that the errors complained of during closing argument rose to the level of plain error.

Although we hold that defendant has waived objection to closing argument, we have reviewed the prosecution’s closing argument. We note that this was a bench trial. Where a jury is waived, it is presumed that the trial court will disregard all improper arguments by counsel. (People v. Robinson (1960), 21 Ill. 2d 30, 40, 171 N.E.2d 11, cert. denied (1961), 365 U.S. 861, 5 L. Ed. 2d 826, 82 S. Ct. 832; People v. Mays (1980), 81 Ill. App. 3d 1090, 1097, 401 N.E.2d 1159; People v. Myatt (1978), 66 Ill. App. 3d 642, 646, 384 N.E.2d 85.) There is nothing in the record to indicate that the trial court relied upon any alleged improper argument in reaching its finding. We reject defendant’s contention that he was deprived of a fair trial by the prosecutor’s closing argument.

Ill

Defendant’s final contention presents the question of inconsistent findings in a nonjury criminal trial. The trial court found defendant guilty of both assault and battery, and not guilty of two counts of official misconduct. Since the official misconduct counts were based on the underlying offenses of assault and battery, defendant argues that the finding was inconsistent.

This issue requires us to determine whether or not a trial judge, sitting as finder of fact in a bench trial, commits reversible error by making inconsistent findings with regard to multiple counts of an indictment or information. (See generally Annot., 18 A.L.R.3d 259 (1968).) We begin by defining an inconsistent verdict.

A legally inconsistent verdict has been defined as follows:

“Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the conclusion that the same essential element or elements of each crime were found both to exist and not to exist.” People v. Murray (1975), 34 Ill. App. 3d 521, 531, 340 N.E.2d 186.

Originally in this State, legally inconsistent jury verdicts constituted reversible error. In People v. Hairston (1970), 46 Ill. 2d 348, 362, 263 N.E.2d 840, cert. denied (1971), 402 U.S.. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1656, our supreme court reviewed the question of legally inconsistent verdicts. The law in Illinois today is that juries may return inconsistent verdicts in criminal cases. (People v. Dawson (1975), 60 Ill. 2d 278, 280-81, 326 N.E.2d 755, cert. denied (1975), 423 U.S. 835, 46 L. Ed. 2d 54, 96 S. Ct. 61; see also People v. Johnson (1980), 87 Ill. App. 3d 306, 310, 409 N.E.2d 48; People v. Jimerson (1979), 69 Ill. App. 3d 403, 411, 388 N.E.2d 10.) The justification for allowing inconsistent jury verdicts is to allow the jury to be “ ‘free to exercise its historic power of lenity.’ ” (People v. Dawson (1975), 60 Ill. 2d 278, 281.) The Illinois position is consistent with both Federal law and the majority of other jurisdictions. Dunn v. United States (1932), 284 U.S. 390, 393, 76 L. Ed. 356, 358-59, 52 S. Ct. 189, 190; Annot., 18 A.L.RSd 259, 274 (1968).

No clear Illinois position has emerged with regard to legally inconsistent findings in criminal case bench trials, and conflicting positions have been taken by courts in other jurisdictions. (Annot., 18 A.L.R3d 259, 284 (1968).) United States v. Maybury (2d Cir. 1960), 274 F.2d 899, held that inconsistent dispositions are not allowed in bench trials. The court reached this conclusion by examining the historical role of the jury and analyzing the reasons for which a jury is permitted to render an inconsistent verdict. The requirement of jury unanimity creates a need for compromise, and the jury should be allowed to protect against excessive zeal of prosecutors by exercising lenity. (274 F. 2d 899, 903.) According to the court, none of these justifications exist in a bench trial. The judge has no problem with unanimity and can exercise lenity when sentencing the defendant. The decision in Maybury does not rest on any provision in the Constitution and may have been decided solely in the exercise of the court’s supervisory power. (Harris v. Rivera (1981), 454 U.S. 339, 342 n.7, 70 L. Ed. 2d 530, 534 n.7, 102 S. Ct. 460, 462-63 n.7.) Other Federal courts have refused to follow Maybury. See United States v. West (8th Cir. 1977), 549 F. 2d 545, 553, cert. denied (1977), 430 U.S. 956, 51 L. Ed. 2d 806, 97 S. Ct. 1601.

Pennsylvania’s intermediate appellate court has taken the position that judges may render inconsistent verdicts. (Commonwealth v. Harris (1976), 239 Pa. Super. 603, 360 A.2d 728, aff’d by equally divided court (1979), 488 Pa. 141, 411 A.2d 494.) The court reasoned that to deny judges the power to render inconsistent verdicts would reduce the desirability of bench trials. According to the court, bench trials contribute to reduction of the caseload and a consequent saving of tax dollars. 239 Pa. Super. 603, 606, 360 A.2d 728, 729; accord, People v. Pugh (1971), 36 App. Div. 2d 845, 846, 321 N.Y.S.2d 504, 506, aff’d (1972), 29 N.Y.2d 909, 279 N.E.2d 604, 328 N.Y.S.2d 860, cert. denied (1972), 406 U.S. 921, 32 L. Ed. 2d 120, 92 S. Ct. 1777.

Several Illinois cases have involved this issue, but, for a variety of reasons, no definitive conclusion has been reached in our State. People v. Pearson (1973), 16 Ill. App. 3d 543, 306 N.E.2d 539, reversed the judgment of the circuit court in a bench trial due to inconsistency. At the time Pearson was decided, however, consistent verdicts were still required of juries. Accordingly, the court found it unnecessary to consider whether a different standard applied to bench trials. 16 Ill. App. 3d 543, 547.

In re Sanders (1980), 81 Ill. App. 3d 843, 401 N.E.2d 1118, involved a delinquency proceeding in juvenile court, where juries are not used. (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 8.) The minor respondent was charged "with attempt armed robbery, murder, and felony murder. The felony murder was based on the underlying felony of attempt armed robbery. After an adjudicatory hearing, the trial court entered a finding of delinquency based on the felony murder count, but found in favor of the minor respondent on the murder and attempt armed robbery counts. The appellate court reversed the finding of delinquency because of the inconsistency in finding the respondent not guilty of attempt armed robbery and guilty of felony murder based on the underlying felony of attempt armed robbery. For reasons more appropriately discussed later in this opinion, we do not think that Sanders provides a definitive answer to the question of the propriety of inconsistent findings in bench trials.

In our examination of the cases dealing with inconsistency, we have attempted to ascertain the legal basis for the holding by some courts that inconsistent findings constitute error. We believe that the vice in inconsistency is that it implies confusion on the part of the trial judge sitting as the finder of fact. Confusion suggests that the defendant was not proved guilty beyond a reasonable doubt. (People v. Murray (1975), 34 Ill. App. 3d 521, 532; see also People v. Rogers (1982), 104 Ill. App. 3d 326, 330, 432 N.E.2d 975.) Inconsistency is no longer considered a vice in jury cases because there are other explanations besides confusion for inconsistency: compromise to achieve unanimity and exercise of lenity. People v. Dawson (1975), 60 Ill. 2d 278, 280-81.

We believe it is time to acknowledge reality and to recognize that there is another explanation, besides confusion, for a trial judge’s inconsistent finding in a criminal case. There are many instances when a trial court desires to exercise lenity in much the same way a jury does. In certain cases, it may be too late, or not appropriate, for the trial judge to exercise lenity in the sentencing of a defendant. The present case appears to be such a case. The trial judge found defendant guilty of two misdemeanors and not guilty of two felonies. Although the Class 3 felonies did not require a more serious sentence than the misdemeanor convictions, there are other adverse consequences of a felony conviction that the trial judge may have wished to avoid imposing on defendant. See Decker, Collateral Consequences of a Felony Conviction in Illinois, 56 Chi.-Kent L. Rev. 731 (1980).

We are not implying our approval of the exercise of lenity by the trial judge acting as finder of fact, but are simply recognizing the existence of such a practice and determining that an inconsistent finding does not imply confusion on the part of the trial judge. If there is no confusion, there is no suggestion that defendant was not proved guilty beyond a reasonable doubt. The exercise of lenity by the trial judge in favor of the defendant should not redound to the defendant’s advantage in the reviewing court.

Accordingly, we believe the following standard should be applied by appellate courts when reviewing inconsistent findings by a trial judge. Legal inconsistency in the finding should not, on a per se basis, require reversal of the conviction. Inconsistency is only one element to consider in determining the existence of proof beyond a reasonable doubt. When, as in the present case, there is a rational explanation for the inconsistent finding other than confusion, the inconsistency will not contribute to a determination that defendant was not proved guilty beyond a reasonable doubt. Trial judges can assist appellate review by explaining their findings on the record. Cf. Harris v. Rivera (1981), 454 U.S. 339, 343, 70 L. Ed. 2d 530, 534, 102 S. Ct. 460, 463.

The holding of the appellate court in Sanders is consistent with the procedure announced here. The only explanation for the inconsistent finding by the juvenile court judge that the minor respondent was guilty of felony murder based on the underlying felony of attempt armed robbery and not guilty of attempt armed robbery is confusion on the part of the judge. There can be no suggestion that the judge was exercising lenity in not finding the respondent guilty of the less serious felony. This acquittal would have no impact on sentencing since a juvenile court judge only commits a delinquent to the custody of the Department of Corrections and does not specify a term of confinement. The length of confinement to the Department of Corrections is determined solely by the Department. (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 10.) Since the trial judge was confused, the Sanders court correctly reversed the finding of delinquency.

We therefore reject defendant’s argument that his conviction must be reversed because of the inconsistent finding by the trial judge. The defendant should not be allowed to take advantage on appeal of the trial judge’s exercise of lenity in his favor.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS, P. J., and HARTMAN, J., concur.

      One commentary has suggested that the root of this position is “the lawyer’s natural bent for orderly thinking rather than *** precedent.” Annot., 18 A.L.R.3d 259, 270 (1968).

      On the surface, this exercise of lenity by the trial judge appears to be similar to the actions of the trial judges in People ex rel. Daley v. Limperis (1981), 86 Ill. 2d 459, 427 N.E.2d 1212. There, the trial judges found defendants guilty of delivery of less than 30 grams of a controlled substance, while the evidence clearly established that more than 30 grams of the controlled substance were involved. Delivery of more than 30 grams is a Class X felony, requiring a minimum sentence of 6 years in the penitentiary, while the delivery of less than 30 grams does not require a penitentiary sentence. (Ill. Rev. Stat. 1981, ch. 56%, par. 1401.) The State’s Attorney sought writs of mandamus to compel the trial judges to vacate their findings and enter findings on the greater offenses. The supreme court refused to award the writs of mandamus because the requested relief would violate the double jeopardy clause. In dieta, the court disapproved of the practice engaged in by the trial judges, regretfully concluding that a constitutional impediment prevented review of the judgments. 86 Ill. 2d 459, 468-69.
      Upon careful analysis, the present case is substantially different than Limperis. Initially, we note that the trial judges in Limperis were alleged to have deliberately avoided application of the Class X felony law, which removes most sentencing discretion from the trial judge. Those judges were alleged to have deliberately circumvented the legislative judgment that certain offenders be sentenced to the penitentiary. In contrast, in the present case, the trial judge would not have lost any sentencing discretion by finding defendant guilty of the felonies. The action of the trial judge simply prevented defendant from suffering certain collateral consequences of a felony conviction. See Decker, Collateral Consequences of a Felony Conviction in Illinois, 56 Chi.-Kent L. Rev. 731 (1980).
      A more important distinction between this case and Limperis is the posture in which each case arose. Limperis involved objection by the prosecution to the exercise of lenity by the trial judges. This was an appropriate use of our adversary system of justice. The present case, however, involves an objection by the defendant to the exercise of lenity on his behalf by the trial judge. The defendant was in the position of seeking the exercise of lenity by the trial judge, and now objecting to the exercise of lenity on appeal. This is not an appropriate use of the adversary system.

      The State contends that the finding of the trial court was not inconsistent. We specifically decline to address this contention and assume, arguendo, that the finding was inconsistent.


source: Caselaw Access Project

author: JUSTICE ROMITI

license: Public Domain

text:
    BANK OF HICKORY HILLS, Plaintiff-Appellant, v. WILLIAM E. HAMMANN, Defendant.—(HAWTHORNE BANK OF WHEATON, Appellee.)
    First District (4th Division)
    No. 81 — 2180
    Opinion filed August 26, 1982.
    Goldgehn, Leonardo, Goldgehn & Isaacson, of Chicago (Mitchell S. Goldgehn, James A. Smith, and Nathan H. Lichtenstein,' of counsel), for appellant.
    Donovan and Roberts, P. C., of Wheaton (Keith F. Roberts, Oliver W. Jervis, and Kristine A. Karlin, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff, Bank of Hickory Hills (Hickory Hills) having obtained judgment against its debtor, Hammann, served the Hawthorne Bank of Wheaton (Hawthorne) with a citation to discover assets. Five months later Hawthorne, which had not previously entered an appearance, filed a motion to quash the citation alleging improper venue. The trial court granted this motion and later denied Hickory Hills’ petition for rehearing after hearing arguments of counsel. We reverse, holding that Hawthorne by its conduct, including its failure to move for change of venue, waived any improper venue.

On July 1, 1980, Hickory Hills filed for confession of judgment against Hammann in the circuit court of Cook County; there is no dispute that the venue was proper. Judgment was entered and later confirmed. Thereafter, on August 8, 1980, Hickory Hills served Hawthorne with a citation to discover assets pursuant to Supreme Court Rule 277 (73 Ill. 2d R. 277). The citation was returnable on August 18, 1980, in Worth, Illinois, a town in Cook County. The citation contained the standard provision prohibiting Hawthorne from transferring or disposing of any of Hammann’s assets.

Hawthorne did not appear on August 18. Rather on August 12, 1980, in compliance with a telephone conversation of the same date it sent photocopies of its entire file in regard to Hammann. It concluded the accompanying letter by stating, “it is our understanding that by furnishing this information directly to your office, we are now excused from appearing in Worth, Illinois on August 18th, 1980.” Thereupon Hickory Hills obtained a continuance of the matter until September 22, 1980. A later continuance until October 6, 1980, was obtained by Hickory Hills at the request of Hawthorne. On or about September 22, 1981, Hammann filed a petition in bankruptcy in Federal District Court and a stay was issued. That case was dismissed on or about December 8, 1980. Sometime at the end of January 1981 (no date of filing is shown in the record) Hawthorne filed a special and limited appearance and also a motion to dismiss because of improper venue. Under Supreme Court Rule 277 (73 Ill. 2d R. 277), a Rule 277 petition against a third party must be filed in the county of that party’s residence. Hawthorne’s motion was heard and granted on February 2, 1981. At that time its attorney admitted that during the pen-dency of the citation proceedings, Hawthorne had caused to be conveyed property or assets belonging to Hammann in violation of the injunction provisions of the citation to discover assets.

As already noted, Hickory Hills filed a petition for rehearing. In this petition it contended that the venue was proper; that if it was not, Hawthorne had waived the improper venue; and if it had not, the sole and exclusive remedy would be a transfer of the citation proceeding to a court of proper venue; and asked that, if venue was improper, the case be so transferred. At the hearing on the petition Hawthorne argued that the case could not and should not be transferred. The trial judge accepted the argument and denied the petition for rehearing.

I

Hickory Hills contends that Hawthorne cannot raise the question of improper venue because the motion was untimely under section 8(2), of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 8(2)), because Hawthorne by its conduct prior to January 1981 waived any objection and because Hawthorne failed to seek a transfer of venue thus waiving any objection.

Section 8 of the Civil Practice Act provides in part that:

“Sec. 8. Wrong venue — Waiver—Motion to transfer. (1) No order or judgment is void because rendered in the wrong venue, except in case of judgment by confession as provided in paragraph (4) of Section 50 of this Act. No action shall abate or be dismissed because commenced in the wrong venue if there is a proper venue to which the cause may be transferred.
(2) All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by him on or before the date upon which he is required to appear or within any further time that may be granted him to answer or move with respect to the complaint, except that if a defendant upon whose residence venue depends is dismissed upon motion of plaintiff, a remaining defendant may promptly move for transfer as though the dismissed defendant had not been a party.” (Ill. Rev. Stat. 1981, ch. 110, pars. 8(1), 8(2).)

While Hawthorne did not file its motion to dismiss on August 18, it did, in light of the various continuances granted, file its motion within “any further time that may be granted him to answer or move with respect to the complaint.” Thus Hawthorne’s motion was timely under section 8(2) of the Act.

However we are inclined to agree with Hickory Hills’ contention that Hawthorne by its delay coupled with its other acts is barred from raising the issue of improper venue. Any questions of improper venue must be raised promptly. (Wagner v. David (1966), 35 Ill. 2d 494, 221 N.E.2d 248; H. Watson Development Co. v. Bank & Trust Co. (1978), 58 Ill. App. 3d 423, 374 N.E.2d 767.) Hawthorne not only did not do this but by its correspondence led Hickory Hills to believe that Hawthorne raised no objection to the venue. Furthermore several of the continuances were obtained by Hickory Hills on Hawthorne’s behalf at its request. Hawthorne was able to use this delay to dispose of the debtor’s property. We do not agree with Hickory Hills’ contention that Hawthorne’s conduct in requesting the continuances and sending the information requested in the citation constituted such a participation in a legal process as to waive any objections to venue. But we are inclined to believe that Hawthorne’s conduct causing Hickory Hills to rely to its detriment on Hawthorne’s apparent acquiescence to the venue bars Hawthorne from challenging that venue.

However we need not decide that issue since in any event Hawthorne waived its objection to the allegedly improper venue when it failed to file a motion to transfer to a proper venue on or before the date it was required to answer. Section 8 of the Civil Practice Act clearly provides that where there is a proper venue and there is no question that here Du Page County would be a proper venue, the issue of improper venue can only be raised by a motion for transfer and cannot be raised by a motion to dismiss.

II

Hawthorne contends that since Supreme Court Rule 277 (73 Ill. 2d R. 277) sets forth the procedure for supplementary proceedings section 8 of the Civil Practice Act is inapplicable. It further contends that since Supreme Court Rule 277 provides that the petition “must” be filed in the county of the third party, the requirement was jurisdictional and the trial court had no power to transfer the case to Du Page County.

Section 1 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 1), provides in part: “The provisions of this Act apply to all civil proceedings except *** proceedings in which the procedure is regulated by separate statutes. In all those proceedings the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes.” The supplementary proceedings involved here are in general regulated by a separate statute, in this case a Supreme Court Rule, Rule 277, and to the extent Rule 277 governs procedure, it, following section 1 of the Act, controls. Thus the provision of the rule requiring that the proceeding must be commenced in the county of the third party’s residence is controlling over the general venue statutes of the Civil Practice Act. (Compare County of Fulton v. Prairie Plan Project (1979), 80 Ill. App. 3d 441, 399 N.E.2d 982.) But since Supreme Court Rule 277 contains no provisions as to the method for challenging venue, the time within which such a challenge must be brought, the remedy available if venue is improper or the effect of a failure to timely or properly challenge an improper venue, those provisions of the Civil Practice Act still control according to the clear and express language of section 1 of the Act. Thus Hawthorne pursuant to section 8 of the Civil Practice Act could only challenge venue by filing a motion to transfer since there was a proper venue to which the cause could have been transferred. Having failed to do so, it, according to the express language of section 8, waived any impropriety of the venue.

Hawthorne contends that because venue was improper in Cook County, the Cook County court had no jurisdiction over it and could therefore not transfer venue to Du Page County but could only dismiss the action. Even if the trial court otherwise lacked jurisdiction, it would still have the power to transfer the cause to the proper venue. (Herb v. Pitcairn (1945), 392 Ill. 138, 64 N.E.2d 519; Chrastka v. Chrastka (1971), 2 Ill. App. 3d 722, 277 N.E.2d 729, appeal denied (1971), 49 Ill. 2d 577.) But except in certain unique types of cases not involved here, the question of venue is not jurisdictional. As stated by the Illinois Supreme Court in Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88, 91: And section 8(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 8(1)) expressly provides that “No order or judgment is void because rendered in the wrong venue.”

“Jurisdiction and venue are distinct legal concepts. Jurisdiction relates to the power of a court to decide the merits of a case, while venue determines where the case is to be heard. Statutory venue requirements are procedural only and do not have any relation to the question of jurisdiction. (United Biscuit Co. of America v. Foss Truck Lines, Inc. (1950), 407 Ill. 488.) The Illinois venue statute is designed to insure that the action will be brought either in a location convenient to the defendant, by providing for venue in the county of residence, or convenient to potential witnesses, by allowing for venue where the cause of action arose.”

Hawthorne relies on the case of Lammert v. Lammert Industries, Inc. (1978), 65 Ill. App. 3d 165, 382 N.E.2d 391, appeal denied (1979), 72 Ill. 2d 582, where the appellate court affirmed a dismissal of a supplementary proceeding for improper venue. However it appears from the opinion in that case that the only issues argued on appeal were whether the venue was proper and whether defendant waived venue by appearing with counsel. The court did not address the issue of the applicability of section 8 of the Civil Practice Act.

Ill

In light of this court’s holding that Hawthorne waived the improper venue, if in fact it was improper, we need not decide whether in fact Cook County was a proper venue as Hickory Hills contends. We note however that the evidence in the record, while indicating that Hawthorne, contrary to the statements in its affidavit, does in fact do some business in Cook County, is insufficient for a determination whether Hawthorne is conducting the usual and customary business in Cook County as well as Du Page County. Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 368 N.E.2d 88; Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 435 N.E.2d 729.

In light of the foregoing, the judgment of the trial court is reversed and the case remanded for further proceedings in Cook County.

Reversed and remanded.

JOHNSON, P. J., and JIGANTI, J., concur.

      Mueh of this information is obtained from Hickory Hills’ verified petition for rehearing. Hawthorne moved to strike many of these allegations on the grounds they were not relevant. The motion was denied and Hawthorne has not appealed from this ruling or contended on appeal that it was in error; Hawthorne did contend in its brief that this court should not consider the allegations on the theory they are not properly part of the record as Supreme Court Rule 191 (73 Ill. 2d R. 191), requires an affidavit made on the personal knowledge of the affiant. However since the allegations which did set forth with particularity the particular facts alleged pertained to statements made either to plaintiff’s counsel or in her presence, plaintiff’s counsel did have the personal knowledge necessary to swear such statements had been made. Hawthorne did not file any verified pleadings denying these verified allegations in the petition. Accordingly they stand admitted (Ill. Rev. Stat. 1981, ch. 110, par. 40(2)), and this court will so treat them.


text:
    VANNIE WYATT, Plaintiff-Appellant, v. JEWEL COMPANIES, INC., Defendant-Appellee.
    First District (4th Division)
    No. 81 — 2324
    Opinion filed August 26, 1982.
    Kathleen B. Boyle and James Lewis Kaplan, both of Chicago, for appellant.
    Eugene F. Keefe, Thomas D. Nyhan, and Ellis A. Ballard, all of Chicago (Pope, Ballard, Shepard & Fowle, Ltd., of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

The sole issue in this case is whether an employee who is employed under a labor union contract can sue in tort for retaliatory discharge if she is discharged for filing a workman’s compensation claim. The trial court granted defendant’s motion to dismiss the complaint on the ground the employee was limited to the grievance procedure provided by the union contract for an employee discharged other than for just cause.

In 1975, the Illinois legislature made it unlawful for any employer to discriminate or to threaten to discriminate in any way because of the exercise of rights granted by section 4 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h)). Violation of the statute subjects the employer to criminal prosecution. In December 1978, the Illinois Supreme Court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, held that the retaliatory discharge of an employee at will for pursuing her rights under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) gave rise to an action in tort separate from any action for breach of contract. The supreme court further held that as to discharges after December 1978 punitive damages could be awarded.

Vannie Wyatt was an employee of Jewel Companies under a collective bargaining agreement to which she was a party pursuant to her union membership. In 1977 she was injured in the course of her employment and filed a compensation claim. Allegedly, when she attempted to return to work, after a period of disability, she was discharged for filing the workmen’s compensation claim. (It is unclear whether the discharge was before or after December 1978.) Defendant relying on Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, 407 N.E.2d 95, appeal denied (1980), 81 Ill. 2d 601, successfully moved to dismiss the complaint pursuant to section 48 of the Civil Practice Act, alleging plaintiff failed to pursue her remedies under the collective bargaining agreement. The third district in Cook held that where an employee employed under a labor union contract is discharged for filing a claim under the Workmen’s Compensation Act, he or she is limited to a claim for breach of contract, and, before any suit can be filed, the employee must exhaust all available remedies including the stipulated grievance procedure. The employee in Cook had in fact filed a grievance proceeding but had failed during that proceeding to raise the issue of retaliatory discharge.

It is true that under the union contract the plaintiff might have a claim in contract if she was discharged without just cause, assuming she was not a probationary employee. And where an employee files a suit for breach of a union contract, the employer may be able to raise, as an affirmative defense, the employee’s failure to attempt to pursue the grievance procedures set forth in that same union contract. (See Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829.) However, we cannot agree with Cook that plaintiff’s remedy here is limited to the claim for breach of contract and that, therefore, plaintiff must exhaust the available contractual remedies. To the contrary, the Illinois Supreme Court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, established that an employee discharged for filing a claim under the Workmen’s Compensation Act has a claim in tort for damages. Plaintiff therefore was entitled to elect to sue in tort as she did.

In Kelsay the Illinois Supreme Court held that in light of the strong public policy involved, an employee discharged for filing a compensation claim has an action in tort for retaliatory discharge and can recover not only compensatory but (if the discharge occurs after the date of the Kelsay opinion) punitive damages. While the employee in Kelsay happened to be an employee at will, the court did not limit its holding to such employees. Indeed, such a limitation would lead to absurd results. An employer who, after the date of Kelsay, discharged an employee not protected by a union contract for filing a compensation claim could be held liable for punitive damages. Yet such damages would not be available against an employer who similarly discharged an employee protected by a union contract even though such a contract is supposed to protect against discharges not for just cause.

Our holding that the existence of a possible remedy in contract does not bar an employee discharged for filing a compensation claim from seeking damages in tort in light of the strong public policy involved is supported by such cases as Lally v. Copygraphics (1981), 85 N.J. 668, 428 A.2d 1317, Brown v. Transcon Lines (1978), 284 Or. 597, 588 P.2d 1087, and Raden v. City of Azusa (1978), 97 Cal. App. 3d 336, 158 Cal. Rptr. 689. Each of these cases held that the fact that the statute provided a remedy for such retaliatory discharge did not bar the employee from pursuing his or her civil remedy since the statutory remedy was not exclusive. It seems even clearer that this court cannot say that the general remedy as provided in the union contract not specifically aimed at retaliatory discharges for filing compensation claims is exclusive under these particular circumstances.

Defendant relies in part on the fact that the Illinois Supreme Court denied leave to appeal in Cook. Such denial, however, is not an affirmance. Indeed, we note that since the employee in Cook had filed an unsuccessful grievance proceeding, he was for that reason barred from recovering in tort. Carnation Co. v. Borner (Tex. 1980), 610 S.W.2d 450.

Accordingly the judgment of the trial court is reversed and the case remanded for further proceedings.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.


author: JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MAJOR PEERY, Defendant-Appellant.
    First District (1st Division)
    No. 81 — 1015
    Opinion filed August 30, 1982.
    Rehearing denied October 4, 1982.
    Jeffrey B. Steinback, of Chicago (Kaaren M. Plant, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Raymond Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a jury trial, Major Peery (defendant) was convicted of the murder of his wife and was sentenced to 100 to 150 years. Defendant appealed to this court on the theory that the trial court erred in refusing to give an instruction tendered by defendant regarding the lesser included offense of voluntary manslaughter predicated upon the presence of “serious provocation.” (See Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(a) and (b), which defines the two types of voluntary manslaughter.) This court reversed the conviction and remanded for a new trial. People v. Peery (1973), 11 Ill. App. 3d 730, 297 N.E.2d 643.

Upon retrial, defendant tendered two instructions on the theory of voluntary manslaughter. One was based on provocation and the other on a belief by defendant that the circumstances would exonerate him but this belief was unreasonable. The trial court gave the latter tendered instruction but refused the former. Defendant was convicted and sentenced to 30 to 90 years.

Defendant appealed to this court again. (People v. Peery (1976), 41 Ill. App. 3d 533, 354 N.E.2d 536.) This court affirmed. The opinion pointed out that since the jury found defendant guilty of murder, it necessarily must have rejected his testimony that his wife threatened and struck him. (41 Ill. App. 3d 533, 536.) This court also found no error in giving one of the instructions and not the other. A petition by defendant for leave to appeal to the Supreme Court of Illinois was denied on December 3, 1976. 64 Ill. 2d 598.

Defendant next filed a petition for habeas corpus in the United States District Court for the Northern District of Illinois, Eastern Division. The writ was denied. Defendant appealed to the United States Court of Appeals for the Seventh Circuit. The court of appeals denied defendant’s claims and affirmed the action of the district court. United States ex rel. Peery v. Sielaff (7th Cir. 1979), 615 E2d 402, cert. denied (1980), 446 U.S. 940, 64 L. Ed. 2d 794,100 S. Ct. 2163.

On December 3, 1980, defendant filed a petition for post-conviction relief in the circuit court of Cook County. (Ill. Rev. Stat. 1979, ch. 38, par. 122 — 1.) Defendant as petitioner alleged the theory that, in rejecting the jury instruction based upon defendant’s alleged provocation, the trial court in the second trial violated the rights of defendant under the fifth, sixth and fourteenth amendments of the Constitution of the United States. On February 20, 1981, the trial court allowed a motion by the People and the petition was dismissed.

In this court defendant urges only that the refusal to instruct the jury on the designated type of voluntary manslaughter deprived defendant of his right to present a defense to a jury in accordance with the sixth amendment and defendant’s right to due process of law under the fourteenth amendment.

We are convinced that principles of res judicata require our af-firmance of the order of dismissal of defendant’s petition for post-conviction relief. The principles of this ancient legal doctrine are completely set forth in Consolidated Distilled Products, Inc. v. Allphin (1978), 73 Ill. 2d 19, 25-26, 382 N.E.2d 217.

The United States Court of Appeals for the Seventh Circuit filed a lengthy and complete order affirming dismissal of defendant’s petition for habeas corpus. The order contains a complete and definitive analysis concerning the criminal conviction of defendant. The order also includes a discussion of the law of Illinois regarding application of the pertinent Illinois statute defining voluntary manslaughter and the propriety of giving one jury instruction and the refusal of another by the circuit court of Cook County. The court of appeals also carefully pointed out:

“In a habeas action the question is whether the petitioner alleges a ‘fundamental defect which inherently results in a com-píete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.’ Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962). The question before us is whether the ‘ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). Where it is the omission of an instruction that is at issue, the petitioner’s burden is ‘especially heavy’ because ‘[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.’ Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 1737, 52 L. Ed. 2d 203 (1977).” 615 F.2d 402, 404.

We regard the above as a definitive statement of the basic theory of the use of the writ of habeas corpus by a United States Court in dealing with the validity of a conviction under State criminal law assailed upon the theory of an erroneous instruction. Additionally, the United State Supreme Court has held in a habeas corpus appeal also involving the legal propriety of an instruction (Cupp v. Naughten (1973), 414 U.S. 141, 146, 38 L. Ed. 2d 368, 373, 94 S. Ct. 396, 400):

“Before a federal court may overturn a conviction resulting from a state trial in which this instruction was used, it must be established not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.”

As regards the petition before us filed by defendant under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1), it has been repeatedly held that such a petition is required to allege a denial of constitutional rights. For example, in People v. Burns (1979), 75 Ill. 2d 282, 285-86, 388 N.E.2d 394, the supreme court held:

“In order to be entitled to relief under the Post-Conviction Hearing Act, it is necessary that the petitioner have suffered ‘a substantial denial of his rights under the Constitution of the United States or of the State of Illinois’ (Ill. Rev. Stat. 1977, ch. 38, par. 122 — 1).”

See also People v. Roberts (1979), 75 Ill. 2d 1, 9, 387 N.E.2d 331.

No additional authority need be cited in this regard. Many Illinois cases have stated the same principles. See People v. Carter (1980), 85 Ill. App. 3d 818, 830, 407 N.E.2d 584.

Therefore, it appears that the identical issues raised by the parties in the post-conviction petition before us have been previously raised in the habeas corpus litigation, decided and thus settled. In short, since we have before us the same parties and the identical issues which were completely determined by the United States Court of Appeals, the matter is settled by the principles of res judicata.

The order appealed from dismissing defendant’s post-conviction petition is accordingly affirmed.

Order affirmed.

McGLOON and O’CONNOR, JJ., concur.


author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL UNDERWOOD, Defendant-Appellant.
    First District (1st Division)
    No. 80 — 2094
    Opinion filed August 30, 1982.
    Rehearing denied October 4, 1982.

      Dennis Cunningham, Brian Click, Jonathan C. Moore, and Charles W. Hoffman, all of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and John D. Cecilian, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Following a jury trial, Daniel Underwood (defendant) was found guilty of aggravated battery and attempt murder. He was sentenced to a term of 10 to 30 years in prison. He now appeals.

On appeal, defendant argues that: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient to prove beyond a reasonable doubt that defendant was legally responsible for his partner’s acts; (3) the jury was improperly instructed as to the legal definition of accountability; (4) the trial court should have clarified the jury instruction defining responsibility; (5) the trial court erred in permitting the prosecutor to misstate the law regarding accountability during closing argument; (6) the trial judge gave an improper response to a juror’s question during deliberations; (7) the trial court deprived defendant of his right to a fair trial by permitting a juror to remain on the jury after she said she could no longer be fair; (8) the sentence he received for his conviction of attempt murder was excessive; and (9) he was denied his right to a speedy trial because there was a 75-month delay between his arrest and trial.

We affirm.

In the early morning hours of Sunday, April 8, 1973, Curtis Bolton was working at a Clark gas station located at the intersection of Chicago and Kedzie avenues. Bolton noticed two suspicious looking characters in an alley behind the station. Suspecting that he was about to be robbed, Bolton called the police. Chicago police officers Drink and Kanzler promptly responded to the call. When they arrived, defendant and Barney Lonzo entered a building near the gas station. The two officers followed them into the building and ordered them to come down from the first landing. Lonzo leaned over a railing and shot Officer Kanzler with a .45-caliber pistol. Officer Drink called for further police assistance.

Officers Cool, Guido, Colonna and Ferrell responded to Drink’s call for help. Defendant and Lonzo entered an apartment in the building through the front door and ran through to the back porch. As Officer Ferrell arrived at the back of the building, he was shot in the face.

Defendant and Lonzo fled into another apartment in the building, in which a family named Young resided. Defendant was found sitting in the bedroom of the apartment. Officer Drink testified that as he approached defendant, defendant positioned himself in a karate stance. The two fought for several minutes until defendant was subdued by another officer, Officer Broderick. Broderick punched and shoved defendant, using his hands, feet, body and handcuffs to control defendant. He claims he did not strike defendant after he was handcuffed.

Defendant was arrested and taken to the 11th District lockup. Approximately one hour after his arrest, defendant was given his Miranda warnings and the questioning began. All of the officers present agreed that defendant did not request a lawyer. They all testified that he was lucid and coherent during the Miranda warnings and questioning and that he did not complain of any pain. According to the officers, defendant confessed that he and Lonzo had planned to rob the gas station.

Defendant gave a more detailed account of the arrest and the events that followed. He testified that the officers patted him down in the hallway of the apartment and then handcuffed his hands behind his back. Once he was handcuffed, Officer Drink turned him around and kneed him in the groin. As defendant bent over from the blow, Drink pushed him to the floor and jumped on top of him. Sitting on his chest, Drink struck him twice in the face with a blackjack.

The officers lifted defendant from the floor and carried him into a bedroom of the apartment, where he was beaten and kicked by a number of officers. One of the apartment dwellers claimed that there was blood all over the floor and the furniture. Defendant claims he was carried out through the front door of the apartment, kicked down the stairs to the ground floor and carried out and put into a squadrol. When he arrived at the police station, he was confronted by three or four officers who kicked him several times. He then was taken inside where he again was beaten.

Defendant stated that he could only vaguely remember plain clothes officers trying to question him. He testified that one officer whacked him across the face with a nightstick. He claims he said nothing to the officers except that he had not done anything. He claims that he requested a lawyer and a phone call, neither which was afforded him.

Defendant made a motion to suppress his post-arrest statement. The trial court denied the motion. Defendant appeals.

First, defendant argues that the trial court erred in denying his motion to suppress. He claims that because the police continued to interrogate him after he had requested a lawyer and because he was beaten to confess, his confession should not have been admitted at trial. The State, on the other hand, maintains that defendant did not request a lawyer after he was given his Miranda rights and that the police did not use force to elicit a confession and that his confession, therefore, was properly admitted at trial. The question of the admissibility of this particular evidence is of vital importance. The statement defendant allegedly made to the police was that he and Lonzo planned to rob a gas station on the morning the shootings took place. The evidence is crucial to the State’s theory that defendant should be held accountable for Lonzo’s acts. The trial court found that there was sufficient evidence that defendant had been advised of his rights, that he had not requested a lawyer and that his confession had not been elicited by force.

It is well established that police officials may not continue to question an accused person who has requested an attorney. (Miranda v. Arizona (1966), 384 U.S. 436, 474, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1628; see Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.) No statement obtained in violation of this rule may be allowed into evidence as part of the prosecutor’s case. Two police officers who questioned defendant at the police station after his arrest, testified that defendant was given his Miranda rights before any questioning began. They testified that he did not request a lawyer. Defendant testified that he requested a lawyer and that his request was denied.

It is the function of the trial court to resolve conflicts in the evidence. (People v. March (1980), 92 Ill. App. 3d 746, 761, 415 N.E.2d 1230.) The direct conflict between the police officers’ and defendant’s testimony as to whether defendant requested a lawyer is a question of credibility best resolvable by the trial court. We decline to overturn its finding on this credibility issue.

Additionally, defendant contends that his confession was obtained by force. The State contends that his confession was voluntary. The determination of voluntariness is to be made by the trial court based on the totality of the circumstances. People v. Johnson (1970), 44 Ill. 2d 463, 468, 256 N.E.2d 343; People v. Lewis (1979), 75 Ill. App. 3d 259, 278, 393 N.E.2d 1098.

There is no question but that defendant received a severe beating. Defendant claims that he was beaten after his arrest, both in the apartment where he was found and at the police station. The State claims that the police officers used force only when defendant resisted arrest and that no force was used on defendant to elicit a confession. Several police officers testified that the officer beat defendant to subdue him at the time of his arrest. Several others testified that he appeared to be lucid and coherent while he was being questioned at the police station and that although defendant looked like he had been in a fight, he did not complain that he was in pain. An assistant State’s Attorney who went to interview defendant stated that he advised defendant of his rights, that defendant indicated that he understood them and that defendant indicated that he desired to talk to him. Defendant did complain that he was in pain and the attorney promptly sent defendant to the hospital.

The trial court found that the police used unreasonable force to effectuate defendant’s arrest, but that he was coherent during questioning and that his statements were voluntarily made. We do not condone the use of excessive force in effectuating an arrest. The force used here was clearly excessive. We also believe that a more prudent course of action would have been to take defendant for medical treatment before interrogating him. The trial court’s finding on voluntariness, however, will not be disturbed on review unless it is against the manifest weight of the evidence. (In re Lamb (1975), 61 Ill. 2d 383, 388, 336 N.E.2d 753; People v. Lewis (1979), 75 Ill. App. 3d 259, 278, 393 N.E.2d 1098.) The trial court is not required to be convinced beyond a reasonable doubt that the confession was voluntary. (People v. Johnson (1970), 44 Ill. 2d 463, 470, 256 N.E.2d 343.) We have carefully reviewed the record and find that the trial court’s finding that defendant’s statements were voluntarily made was not against the manifest weight of the evidence. The ruling of the trial court on the motion to suppress was correct.

Second, defendant argues that the evidence before the jury was not sufficient to prove beyond a reasonable doubt that defendant was legally accountable for Lonzo’s acts. A person is legally accountable for the acts of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2; People v. Baynes (1980), 87 Ill. App. 3d 1000, 1009, 410 N.E.2d 894.) Mere presence or negative acquiescence alone is not enough to establish accountability. (People v. Nugara (1968), 39 Ill. 2d 482, 487, 236 N.E.2d 693.) Evidence that an individual was present at the scene of a crime without disapproving or opposing it, can, however, be considered together with other circumstances in determining whether that individual should be held accountable. (People v. Torres (1981), 100 Ill. App. 3d 931, 938, 427 N.E.2d 329.) One may be held accountable for the acts of another without having actively participated in the overt act. People v. Ray (1979), 80 Ill. App. 3d 151, 156, 399 N.E.2d 977.

Here, defendant and Lonzo planned to rob a gas station. Together they fled from the police. Defendant stood by when Lonzo shot the officers. The two fled into an apartment together and defendant asked one of the occupants to hide a gun. Defendant made no attempt to disavow his connection with Lonzo. In our judgment, defendant was properly found to be accountable for Lonzo’s acts.

Third, defendant argues that the jury was improperly instructed as to the legal definition to accountability. As we have previously stated, a person is legally accountable for the acts of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. (People v. Baynes (1980), 87 Ill. App. 3d 1000, 1009, 410 N.E.2d 894.) The trial court instructed the jury that it was incumbent on the State to prove: “(1) that the defendant or a person for whose conduct he is responsible performed an act which constituted a substantial step toward the commission of the crime or murder; and (2) that the defendant or a person for whose conduct he is responsible did so with intent to commit the crime of murder ***.”

The trial court rejected an instruction tendered by the defense which used the term “legally responsible” in place of the word “responsible.” Defendant claims that the trial judge should have given the tendered instruction to assure that no juror would confuse legal responsibility with a moral or social responsibility. He urges that the instruction would have been particularly appropriate in this case because the jury could find defendant “responsible” for Lonzo’s crime because of the fact that he was seven years older than Lonzo and was Lonzo’s martial arts instructor.

In People v. Surges (1981), 101 Ill. App. 3d 962, 428 N.E.2d 1012, we recently addressed the exact argument which defendant now advances. In Surges, we found that since the jury was read IPI Criminal No. 5.03 which defines “responsibility,” it is unnecessary for the trial court to add the word legally to modify “responsible.” (101 Ill. App. 3d 962, 970; see Illinois Pattern Jury Instruction, Criminal, No. 5.03 (1968).) As in Surges, the jury in the instant case was read IPI Criminal No. 5.03. We therefore reject defendant’s contention that the jury was misinformed as to the legal definition of accountability.

Fourth, defendant argues that the trial court should have clarified IPI Criminal No. 5.03. That instruction reads: “A person is responsible for the conduct of another person when, either before or during the' commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime.” Defendant claims that the following instruction should have been given:

“In order to convict a person under accountability principles, the State must prove (1) that the defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offenses; (2) that this participation must have taken place either before or during the commission of the offenses; and (3) that it must have been with the concurrent, specific intent to promote or facilitate the commission of the offenses ***. Presence at the scene is not culpable, and knowledge that the crime is being committed is not such an affirmative act as to constitute aiding or abetting.”

Defendant contends that the proposed instruction would have separated the definition of accountability into its component parts, making it clear that the jury had to be satisfied that the State had to prove each of the elements beyond a reasonable doubt and that proof of aiding and abetting, without proof of “intent to promote or facilitate,” is not sufficient to establish guilt. Additionally, defendant urges that the proposed instruction would have informed the jury that defendant’s presence at the scene of the crime and his failure to act to stop Lonzo, do not prove that he aided or abetted Lonzo.

Illinois courts consistently have held that IPI Criminal No. 5.03 properly advises the jury on the law of accountability. (People v. Dandridge (1979), 79 Ill. App. 3d 693, 697, 398 N.E.2d 955; People v. Poll (1979), 74 Ill. App. 3d 534, 538, 393 N.E.2d 732.) Thus, we believe it was sufficient for the trial court to give this instruction rather than the one proposed by defendant.

Fifth, defendant contends that the trial court erred in permitting the prosecutor to misstate the law regarding accountability. During the State’s closing argument, the prosecutor stated: “*** the fact that [defendant] didn’t try to stop [Lonzo] *** you can consider that *** because that’s another act of aiding and abetting Lonzo.” Defense counsel objected and the trial court overruled the objection.

It is well established that mere presence at the scene of a crime or negative acquiescence in another’s actions is insufficient to make defendant accountable. (People v. Rodriguez (1980), 89 Ill. App. 3d 941, 945, 412 N.E.2d 655.) It is, however, a factor which may be considered in determining whether defendant aided or abetted. People v. Torres (1981), 100 Ill. App. 3d 931, 938, 427 N.E.2d 329; People v. Ray (1979), 80 Ill. App. 3d 151, 156, 399 N.E.2d 977.

We agree with defendant that the trial court should have sustained defense counsel’s objection. Nevertheless, we do not believe the court’s failure to sustain the objection was reversible error. The jury was properly instructed on the law of accountability and defense counsel had the opportunity to respond to the statement in closing argument.

Sixth, defendant argues that the trial judge gave an improper response to a juror’s question during deliberations. The juror asked “On attempt murder, does the intent have to apply to he [sic] and the person for whom he is responsible? Please clarify.” Over defense counsel’s objection, the trial judge wrote back: “The defendant, or a person for whose conduct he is responsible, must have the required intent.” Defendant claims that the judge’s response was misleading and in essence eliminated the requirement of intent on the part of defendant.

The jury had properly been instructed that the State must prove “that the defendant or a person for whose conduct he is responsible did so with intent to commit the crime of murder.” The judge’s response to the juror’s question was nothing more than a reiteration of what he had stated in instructing the jury. There was no error in the trial judge’s response to the juror’s question.

Seventh, defendant argues that the trial court deprived him of his right to a fair trial by permitting a juror to remain on' the jury after she said she could no longer be fair. On Friday, August 23, a juror informed the trial judge that she could not continue to serve because her husband’s vacation started the following Monday and she had plans to leave on a trip with him. She stated that she could be fair and impartial through Monday. The case went to the jury at 5:20 Monday evening. Neither defense counsel nor the juror made any protest at this time. Deliberations continued for six hours Monday night, after which the jury was sequestered for the evening. The jury resumed deliberating Tuesday morning at 9:35. Later that day, the jury reached its verdict. The verdict was announced at 3:30 p.m.

The determination of whether a juror possesses a state of mind which will enable her to give the accused a fair and impartial trial rests within the sound discretion of the trial judge and will not be reversed unless it is against the manifest weight of the evidence. (People v. Veal (1978), 58 Ill. App. 3d 938, 971, 374 N.E.2d 963.) The burden is on the party objecting to the juror to show the prejudice of the juror. (People v. Chatman (1977), 49 Ill. App. 3d 1034, 1036, 364 N.E.2d 739.) Defendant has failed to show any prejudice on the part of the juror or any prejudice resulting from the trial judge’s handling of the matter. We find, therefore, that defendant was not deprived of his right to a fair trial.

Eighth, defendant argues that the sentence he received for his conviction of attempt murder was excessive. It is axiomatic that sentencing is a matter of judicial discretion. Absent a clear abuse of discretion, the sentence imposed may not be altered by the trial court. People v. Perruquet (1977), 68 Ill. 2d 149, 158, 368 N.E.2d 882.

The trial judge thoroughly considered the facts and circumstances of the case in passing sentence on defendant. He considered: that defendant was the older of the two offenders; that defendant had ample opportunity to extricate himself from the situation but failed to do so; and that Lonzo had been sentenced to 15 to 60 years in prison. The judge did not abuse his discretion in sentencing defendant to a term of 10 to 30 years.

Finally, defendant argues that he was denied his right to a speedy trial because of the length of time between his arrest and trial. Defendant was arrested on April 8, 1973. His trial did not start until July 23, 1979. The record indicates that there were approximately 64 continuances during this period. Of those 64 continuances, 31 were on defendant’s motion, 31 by agreement and 2 were on the State’s motion. A defendant is considered to have occasioned a delay where he requests a continuance, agrees to a continuance or when his actions otherwise contribute to the delay. (People v. Bivins (1981), 97 Ill. App. 3d 386, 392, 422 N.E.2d 1044.) Because the large majority of continuances were either requested or agreed to by defendant, we do not believe he was denied his right to a speedy trial.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

CAMPBELL, P. J., and O’CONNOR, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID P. PETERSON, Defendant-Appellant.
    Fourth District
    No. 4 — 82—0062
    Opinion filed September 1, 1982.

      John D. McFetridge, of Lawrence E. Johnson & Associates, of Cham-paign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Mona C. Mack, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court;

Defendant was tried by jury in the circuit court of Champaign County on the offenses of driving while under the influence of intoxicating liquor and resisting a peace officer. He was convicted of the former charge, acquitted on the latter, and sentenced to 180 days in the Department of Corrections. On appeal, he asserts his guilt was not proved beyond a reasonable doubt, and the trial court erred (1) in denying his motion to strike and dismiss the driving under the influence charge, (2) in denying his motion for a severance, and (3) in permitting the prosecution to introduce selected portions of a transcript of defendant’s prior testimony. We affirm.

The evidence at trial indicated that on August 15, 1981, at about 4:30 a.m. a deputy sheriff found defendant’s automobile in a soybean field about 30 to 40 feet from a road. The car’s engine was running and defendant was leaning over the wheel with his legs under the steering wheel, appearing to be' sleeping. The deputy testified he shook the defendant, who awoke and partially sat up whereupon the deputy asked defendant if he was all right and for some identification. According to the deputy, defendant turned his face away and started to lay back at which time he, the deputy, grabbed defendant’s arm and shoulder, shook him, pulled him to a sitting position, and questioned him again. The deputy stated defendant failed to answer, pushed his arm toward the deputy and lay back down. The deputy testified that defendant smelled of “alcohol” and held onto the steering wheel when he tried to remove defendant from the vehicle.

The deputy’s testimony continued as follows: He reapproached defendant’s vehicle about 30 minutes later after a tow truck had arrived. Defendant appeared to be asleep but the deputy shook him awake and placed a cuff on defendant’s left hand. Defendant still did not get out of the car. As the deputy attempted to force defendant out, defendant hung onto the steering wheel and buckled his legs underneath it. The deputy removed defendant with the help of the tow track driver. At this time the deputy also noticed a strong scent of alcohol on defendant’s breath and that defendant spoke harshly. After defendant was placed in the back of a squad car, he continued to resist. Although the deputy had not given defendant any kind of tests, he testified to an opinion that defendant was then intoxicated.

Defendant had previously been tried on the single charge of resisting arrest. A mistrial was declared there when the jury was unable to agree. Over defendant’s objection a transcript of his testimony at that trial was admitted into evidence and read to the jury. Defendant testified there as follows: After work on August 14, 1981, he went to his parents’ home and had a meal. He did not have any alcohol there. He went to a friend’s house and had two beers. He then went to Prairie Lands and had four drinks from 12:30 to 3 a.m. He then left in his car. He felt sleepy. He had no difficulty driving but he had to go slow due to the rain. When he reached the intersection at 2500 North and 1300 West, he ran off the road. At that intersection the road curves left and also goes straight. He wanted to go left but passed it. While pulling back he ran into the ditch and onto the bean field.

We deem the evidence fully sufficient to support the conviction. Defendant admitted to having two beers at a friend’s house and then four drinks at a nightclub and that he was groggy when he left the club. While the existence of rain could have partially explained why defendant drove off the road, the jury could have concluded that his grogginess, induced by intoxicants was a contributing factor. Such a conclusion would be corroborated by the difficulty the deputy had in awakening defendant and defendant’s resistance. The opinion of the deputy added further weight. Any substantial impairment of the ability of the accused to drive resulting from the ingestion of intoxicants is sufficient to support a conviction for driving under the influence of intoxicating liquor. (People v. Wheatley (1972), 4 Ill. App. 3d 1088, 283 N.E.2d 279.) A reasonable jury could find beyond a reasonable doubt that such impairment existed here.

Prior to trial the court denied a defense motion to dismiss the driving under the influence charge. The motion was based upon the provisions of section 3 — 3(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 3(b)) concerning multiple prosecutions for the same act. It states:

“If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.”

The resisting a peace officer charge was filed on August 7, 1981. As previously stated, in mid November 1981 a trial of the charge was held and the jury was discharged when it could not reach a verdict. Then, on November 25, 1981, the driving under the influence of intoxicating liquor charge was filed. Defendant’s motion to dismiss maintained that the later charge was filed too late because the two charges are based on the same act and were both known to the prosecuting officers at the time of the filing of the initial charge. Defendant maintains he showed that the prosecutions were required to be brought at the same time and the trial court erred in denying the motion.

Defendant misinterprets the application of the single prosecution requirements of section 3 — 3(b). As explained in the Committee Comments to section 3 — 4 of the Code (Ill. Ann. Stat., ch. 38, par. 3— 4, Committee Comments, at 214 (Smith-Hurd 1972)), section 3 — 4 provides the method of enforcing the requirements of section 3 — 3(b). Section 3 — 4(b) concerns the situation where a defendant should have been charged at the time of the prosecution with another offense. It provides for a bar of the subsequent prosecution only when the prosecution of the other offense has terminated by either a conviction or an acquittal. Because of the hung jury, the defendant here was neither convicted nor acquitted. People v. Miller (1966), 35 Ill. 2d 62, 219 N.E.2d 475.

After defendant’s motion to strike was dismissed, the defendant • moved for a severance. That motion was denied and defendant was tried for the offenses of driving under the influence of intoxicating liquor and resisting a peace officer.

Section 111 — 4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111 — 4) states in pertinent part:

“Joinder of Offenses and Defendants.
(a) Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction.”

Defendant contends that the two offenses are separate and distinct and have no elements in common. He states that the offense of operating a motor vehicle while under the influence of intoxicating liquor was completed prior to the offense of resisting a peace officer. He states that no “common scheme” existed, and the fact that the corroborative evidence was the product of the same investigation does not affect the independence of the offenses themselves. Defendant contends the counts should not have been joined together.

We need not decide whether the two offenses with which defendant was tried rose out of the same transaction. The evidence would have been the same in the driving under the influence case even if the resisting arrest charge had been severed. Accordingly, the defendant was not prejudiced, and an economy of time resulted from trying the cases together. (See People v. Sockwell (1977), 55 Ill. App. 3d 174, 371 N.E.2d 100.) The trial court is clothed with substantial discretion in ruling on a motion to sever. (People v. Marbley (1975), 34 Ill. App. 3d 434, 340 N.E.2d 247.) That discretion was not breached here.

Finally, defendant complains of the introduction into evidence, over his objection, of his testimony at the previous trial devoted entirely to the resisting arrest charge. Citing the dissent in Miller v. People (1905), 216 Ill. 309, 74 N.E. 743, defendant argues the use of the evidence shows that defendant had testified before and would make it more difficult for him to exercise his privilege not to testify in the present case. However, that argument was not accepted by the Miller majority. The decision of the majority is precedent binding upon us. Defendant also seeks to analogize to the rule which forbids use of a defendant’s testimony at a suppression hearing as part of the State’s case in chief. (People v. Luna (1967), 37 Ill. 2d 299, 226 N.E.2d 586; People v. Sturgis (1974), 58 Ill. 2d 211, 317 N.E.2d 545, cert. denied (1975), 420 U.S. 936, 43 L. Ed. 2d 412, 95 S. Ct. 1144.) However, there the purpose of the rule is to permit a defendant to protect himself against the use of unlawfully obtained evidence without impairing his privilege against self-incrimination. As stated in Luna, a defendant is not compelled to testify at a first trial to protect any constitutional right. The general rule is that an accused who elects to testify at a trial waives his privilege against self-incrimination through the use of that testimony at a subsequent trial. (Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.) Defendant argues that here he had no reason to believe that the testimony would be used against him in a driving while intoxicated charge. We see no reason to limit the use of the testimony to future trials that are foreseeable. The trial court properly admitted evidence of the former testimony.

The judgments of conviction and sentence are affirmed.

Affirmed.

LONDRIGAN and TRAPP, JJ., concur.


author: JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES W. COOKSON, Defendant-Appellant.
    Fourth District
    No. 17453
    Opinion filed August 26, 1982.

      Daniel D. Yuhas and Gary S. Rapaport, both of State Appellate Defender’s Office, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

Defendant, Charles W. Cookson, was charged in the circuit court of Sangamon County with the offense of armed robbery in violation of section 18 — 2(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a).) He was tried to a jury and convicted and following a sentencing hearing, he was sentenced to 6 years’ imprisonment.

Defendant’s sole contention on appeal is that the trial court erred in giving a jury instruction consistent with Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1981) (IPI Criminal). We do not agree.

At defendant’s trial it was determined that his brother had, while armed with a pistol, robbed a Huck’s Convenience Store in Springfield, Illinois. The robbery was witnessed by a police officer and a customer of Huck’s. Defendant’s brother ran to defendant’s car, jumped in, and defendant then attempted to elude the off-duty police officer who was following in his pickup truck. Defendant and his brother were stopped and arrested. A large amount of money was found in defendant’s back pocket.

Defendant, in a statement to the police which was presented in pertinent part to the jury, said that he did not know that his brother was going to rob the store, and that his first knowledge came when his brother jumped into the car and tossed a wad of money onto the front seat. The testimony was inconclusive as to the amount of money actually taken from the convenience store. However, there was no question that an amount similar to that found on defendant was taken. The denominations of the money were determined to include ones, fives, and $10 bills, but no $20 bills. The money taken from defendant matched these denominations.

The hat and sunglasses which defendant’s brother had worn during the robbery, as well as the handgun, were removed from defendant’s car upon his arrest.

Defendant presented no evidence and the State tendered a jury instruction to which the defense objected. Nevertheless, the trial court gave the instruction over defendant’s objection. The instruction given was as follows:

“If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by armed robbery. However, you are not required to draw that inference.”

The instruction is taken from the 1968 edition of IPI Criminal, and modified. Apparently the second edition of IPI Criminal (1981) was not available at the time of trial.

Defense counsel’s objection to the instruction was that there was no evidence that the money taken from defendant was in fact stolen, and therefore no evidence to support giving the instruction. The court noted that defendant had been in possession of the money. The court also noted that while no one from the convenience store had testified to the exact amount, the court believed that the instruction could be given because it did not require the jury to draw the inference.

Defendant again complained of the instruction in his motion for a new trial. During argument on the post-trial motion the court noted that he had suggested not giving that instruction. However, a review of the discussion revolving around it at the instruction conference reveals that the trial judge made no such suggestion. The court noted, at the hearing on the post-trial motion, that the instruction he had given was not published in the official pattern instruction text (1968 ed.); however, he gave the last sentence of the instruction in order to comply with People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 161.

The court also noted that the situation in the instant case was different from one in which the exact serial numbers on the bills could be correlated to the ones found in defendant’s pocket. However, the court found there was sufficient corroborating evidence in the instant case in that defendant’s brother robbed the store; jumped into his car; defendant attempted to elude the police; the weapon was found in defendant’s car; and the money found in his pocket. We note also that defendant’s own statement was corroborative of this.

At the time of defendant’s trial Illinois Pattern Jury Instructions, Criminal (1968) was used. IPI Criminal No. 13.21 (1968) at that time provided as follows:

“If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by [here insert name of crime charged].”

In an effort to satisfy the requirements of Housby, the trial court instructed the jury that they were not required to draw the inference of IPI Criminal No. 13.21 (1968).

IPI Criminal No. 13.21 (2d ed. 1981) has been substantially modified to comply with Housby. The current version of the instruction reads as follows:

“If you find beyond a reasonable doubt that the defendant had exclusive possession of recently stolen property, and that there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by
You never are required to make this inference. It is for the jury to determine whether the inference should be drawn.
Exclusive possession of recently stolen property may be reasonably explained by the facts and circumstances in evidence.”

The committee note to IPI Criminal No. 13.21 (2d ed. 1981) states that the committee recommends that the instruction not be given. The committee believed that particular types of evidence should not be singled out by the instruction, rather they should be left to the argument of counsel. The note indicates that Housby delineates the appropriate time to give this instruction and that the trial judge should first determine as a matter of law whether the jury could find recent and exclusive possession. IPI Criminal No. 13.21, Committee Note (2d ed. 1981).

Housby requires that a conviction not be based on exclusive, unexplained possession of recently stolen goods alone. In order to satisfy due process there must be corroborative evidence. The court in the instant case determined that sufficient corroborative evidence had been introduced.

In Housby the court also noted that no single instruction is to be judged in artificial isolation. Rather, each instruction must be viewed in the context of the entire charge. There the court noted that Hous-by’s jury was given, in addition to No. 13.21, several other instructions including one which told the jurors they were not to single out any particular instruction. Additional instructions told the jurors of the elements of the offense and what would require acquittal.

In the instant case the charge included IPI Criminal (1968) Nos. 1.10 and 2.03; No. 14.01, which states the elements of the crime of armed robbery; No. 14.02, which states that if any of the propositions satisfying the elements is not proved beyond a reasonable doubt, then the defendant should be found not guilty; and most importantly, No. 3.02 on circumstantial evidence. In the context of the entire charge the giving of No. 13.21, in the instant case, comports with Housby, especially since the same instructions were given in that case.

Defendant urges, however, that the evidence was insufficient to show that the property discovered in defendant’s possession was stolen. If such were the case, Housby would not be satisfied as the inference of guilt must flow from the proved fact of unexplained possession of recently stolen goods.

It is correct, as defendant states, that it is error to submit an instruction to the jury where there is no evidence to support the giving of the instruction. (People v. Shackles (1977), 44 Ill. App. 3d 1024, 358 N.E.2d 1329.) The danger in giving such an instruction is that the jury may be misled into believing that it is the court’s opinion that the evidence would support a finding that the facts exist upon which the proposition of law is based. (Shackles.) However, both the People and the defendant are entitled to appropriate instructions which present their theories of the case to the jury if, and when, such theories are supported by the evidence. (People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319.) Very slight evidence on a given theory in a case will justify the giving of an instruction on that theory in a criminal prosecution. People v. Strong (1979), 79 Ill. App. 3d 17, 398 N.E.2d 216.

In view of the committee’s recommendation, we do not determine whether slight evidence on a given theory in any case will justify the giving of IPI Criminal No. 13.21 (2d ed. 1981). We determine that the evidence in the case at bar was sufficient to support the instruction as given.

In the instant case the question is whether the money found in defendant’s possession, taken together with the other facts of the case, constitutes sufficient evidence to warrant the giving of the instruction. The value of the property taken is immaterial, and it need not be precisely identified when the character of the property is such that exact identification is difficult. This is particularly true of money which in most instances cannot be positively identified. (People v. Lagios (1964), 51 Ill. App. 2d 440, 201 N.E.2d 245.) The value of the property taken is not an element of the crime of armed robbery. (People v. Smith (1966), 66 Ill. App. 2d 257, 213 N.E.2d 135.) Minor variations in the amount and denominations of stolen money are not sufficient to raise a reasonable doubt. Lagios.

In the instant case we hold that it was not necessary that the currency taken from the defendant be shown to be the exact currency taken in the robbery. This would require an impossible task on the part of the prosecution since money is generally undistinguishable. In light of the foregoing cases, the evidence was sufficient to determine whether the money found in the defendant’s possession had been recently stolen. Therefore, on that basis the giving of the instruction cannot be condemned.

Defendant also urges that the use of IPI Criminal No. 13.21, apparently in either version, has been discouraged even in cases where property was clearly stolen. However, his reliance on People v. Killings (1982), 103 Ill. App. 3d 1074, 431 N.E.2d 1387, is misplaced.

In Killings the instruction given was similar to IPI Criminal No. 13.21 (1968). We held that, in light of Housby and the committee note to IPI Criminal No. 13.21 (2d ed. 1981), absent a history of instructing on the inference such an instruction was disapproved for future use. Our holding there cannot be relied upon to attack the use of IPI Criminal No. 13.21 (2d ed. 1981) under appropriate circumstances, since we did not consider it in Killings.

We agree with the committee that Housby sets forth the bases for using the instruction in its revised form. Where Housby has been satisfied and the record reveals sufficient evidence for a determination, as a matter of law, that the jury could find recent and exclusive possession, IPI Criminal No. 13.21 (2d ed. 1981) may be given.

In the case at bar the evidence was sufficient to support a finding of recent and exclusive possession, Housby was satisfied, and the trial judge was aware of the requirements of Housby, as is implicit in his revision of the 1968 version of the instruction. The use of IPI Criminal No. 13.21 (2d ed. 1981) would have been proper; the instruction given was not error.

Defendant cites numerous cases contending that in those cases where courts of review have sustained the use of the instruction the property in question was conceded to be stolen property or else the proof that it was stolen was unassailable. We have reviewed those cases and do not agree that that is a prerequisite to the giving of the instruction. Housby established the bases for the giving of the instruction, and we determine that Housby has been satisfied in the instant case.

In the case at bar it was proper to give the instruction. The fact that the clerk could not identify the specific bills as those stolen in the robbery does not support reversal. There was sufficient circumstantial evidence to infer that the money in defendant’s possession was stolen. His own statement was that he had given his brother money to buy something at Huck’s, his statement also linked the currency found in his possession to the robbery, his brother admittedly robbed the store, and the denominations and amount were similar to that testified to by store employees.

Therefore we determine that the evidence was sufficiently corroborative to support the giving of the instruction. Moreover, in the context of the entire charge we find that the instruction was not improper.

For the foregoing reasons the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

GREEN, P. J., and MILLS, J., concur.