author: Mr. JUSTICE SEIDENFELD Mr. JUSTICE THOMAS J. MORAN

text:
    Chicago Title & Trust Company, as Trustee, Plaintiff-Appellee, v. The County of Du Page, Defendant-Appellant.
    (No. 72-58;
    Second District
    June 26, 1973.
    T. MORAN, J., dissenting.
    William V. Hopf, State’s Attorney, of Wheaton, (Frank Petra, Assistant State’s Attorney, of counsel,) for appellant.
    Edward Van de Houten, Jr., of Glen Ellyn, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant appeals from a declaratory judgment that held the zoning ordinance of the county unconstitutional and void in its application to plaintiff's property prohibiting the construction of an automobile service station with repair facilities.

The subject property is located at the northeast corner of Route 83 and 91st Street, an unincorporated area, in Du Page County. It has a frontage of 150 feet on the- east side of Route 83 and the west side of O’Neill Drive, and a frontage of 175 feet on the north side of 91st Street. It consists of two lots, aggregating 26,250 square feet. The westerly lot is improved with an 18-year-old frame house with no basement.

The property is zoned R-3 (single family residence) under the Du Page County zoning ordinance, and is part of the Tri-State Village Unit No. 4 subdivision lying to the north and northeast. The Tri-State Village subdivision is sparsely improved with some modest homes constructed in the middle 1940 s, and can be characterized as a fairly stagnant area. Three single family homes lie directly north and another east of the subject property and face O’Neill Drive.

Route 83, also known as the Robert Kingery Expressway, is a heavily traveled four lane divided highway, extending from Wisconsin to Indiana. Some 18,000 to 20,000 vehicles use this expressway during a 24-hour period. 91st Street is a section line road with stop signs at Route 83; the traffic on Route 83 at 91st Street being through traffic. O’Neill Drive is a subdivision street. The speed limit on Route 83 at 91st Street is 65 miles per hour.

The southeast comer of 91st Street and Route 83 is improved with a single family home that has been abandoned since a fire. Farther to the southeast the land is vacant. About Yz mile to the south is another subdivision. One and Yz miles to the east is the Sante Fe Speedway.

The southwest corner, zoned R-3, is presently vacant, but a circuit court decision has permitted the erection of a filling station there. Behind this presently vacant parcel is the Oaks Nursing Home allowed as a special use under the R-3 zoning. Farther southwest behind the nursing home is the Rosewood Trace apartment complex fronting both on Route 83 and 91st Street. Two blocks south of the subject property on the west side of Route 83 is a commercially zoned area adjacent to and part of another apartment complex.

The northwest comer of 91st Street and Route 83 is a vacant lot zoned residential and advertised for sale. One-half mile to the north of it and on the west side of Route 83 is the Timber Lake Estates property which consists entirely of single family homes ranging from $40,000 to $75,000. These homes have their own frontage road. Four homes sit high off the expressway, west and opposite the subject property. To the west on 91st Street, gutters and sidewalks for a new subdivision have been constructed.

There is much vacant land to the southeast, northeast, and northwest of the intersection in question. It is all zoned R-3.

Defendant contends the character and residential zoning of the area adjacent to the subject property is of such paramount importance that the trial court erred in its judgment permitting the proposed commercial intrusion into it. Defendant additionally argues that although the Route 83 traffic is a factor to be considered, it does not render the residential classification unreasonable; that the proposed use is unreasonable; and that plaintiff has not sufficiently proven that the existing ordinance is unreasonable.

The factors which are relevant to our review of zoning have been often stated (E.g., Hartung v. Village of Skokie (1961), 22 Ill.2d 485, 494; Kraegel v. Village of Wood Dale (1973), 10 Ill.App.3d 486, 294 N.E.2d 64, 67, 68), and need not be repeated in general terms. We will review those which we find particularly relevant to the case before us.

The strongest factor which favors the defendant is that the character of the area as well as the present zoning classifications and uses in the area are predominantly residential. All four corners and the surrounding area, except for a small area two blocks to the south, are zoned residential. The immediate neighborhood is zoned for single-family residences but includes many vacant lots. The trend to the south is to multiple family housing. The nursing home adjoining the southwest comer, which is kitty-corner from the subject property, is essentially residential in character. However, it is also true that the existing residential properties consist of modest homes in the main built some 25 years ago and which do not front on Route 83; and that although much vacant land is available, the immediate area in question appears to be stagnant from the standpoint of constructing single-family residences. Route 83 is a heavily traveled arterial highway with expanding use. And the property on the southwest corner has been determined, by court decision, to be suitable for a filling station with further evidence that the other two comers have been abandoned for single-family residence purposes.

The depreciation of surrounding properties which would be caused by the proposed use would, moreover, be comparatively slight or nonexistent. Plaintiffs expert testified that the depreciation would be zero; and defendant’s expert testified to depreciation of one house of 10% and lesser amounts as to other neighboring homes. Evidence indicated the proposed use would be modernly designed and screened from adjacent properties.

The hardship to the owners would be substantial if they should be restricted to single-family residence zoning. Testimony indicated that the property as presently zoned and used is valued at $18,000 — $20,000; while the amount to be paid by the Marathon Oil Company for the proposed use would be $75,000.

While there was some testimony that the proposed use might result in a safety hazard because of problems of ingress and egress onto Route 83 from the proposed filling station because of short acceleration lanes, the evidence supported the conclusion of the trial court that there would be no safety hazard, and, if necessary, appropriate safety measures could be taken by the State (which had already issued temporary access permits for the location).

All of the evidence, taken together, is sufficient to support the trial court’s conclusion that the substantial restriction in the value of plaintiff’s property which would be entailed if the single-family zoning classification were retained, is not required by any significant consideration of public welfare. In our view, the case was properly determined below on the principle that where the gain to the public is small when compared to the hardship imposed upon the individual property owner by the restriction of the zoning ordinance, no valid basis for the exercise of the police power exists. (Mobil Oil Corp. v. City of Rockford (1972), 8 Ill.App.3d 649, 654.) The law does not require that the subject property be totally unsuitable for the purpose classified but it is sufficient that a substantial decrease in value results from a restriction bearing no substantial relation to the public welfare. Atkins v. County of Cook (1960), 18 Ill.2d 287, 297; LaSalle Nat. Bank v. County of Cook (1957), 12 Ill.2d 40, 47-8; LaSalle Nat. Bank v. Vil. of Harwood Heights (1971), 2 Ill.App.3d 1040, 1047.

Defendant has cited our recent opinion in Hawkins v. County of Du Page (1972), 4 Ill.App.3d 306 (Abst.) which upheld a declaratory judgment denying a proposed rezoning for a motel, restaurant and filling station and which involved property abutting Route 83, as persuasive here. The case is distinguishable on its facts. In Hawkins, there was substantial evidence that the rezoning of the property would have a greater detrimental influence and cause greater depreciation to surrounding properties of substantial value than found to exist by the trial court in this case. The trial court’s decision was held not against the manifest weight of the evidence.

Defendant has further argued that Schultz v. Village of Lisle (1972), 53 Ill.2d 39, should be controHing here. We do not agree. In Schultz, the court expressly noted that the case did not present the usual zoning question in the customary manner. (53 Ill.2d at 41.) In finding the proposed use unreasonable when the existing classification was admitted to be invalid, the court stressed the fact that there were no gas station uses or zoning in the entire area. Additionally in Schultz there was no indication that the residential use was stagnant and there was evidence of depreciation and proof of the negative effect on the surrounding properties if the gas station were permitted.

Our recent opinion in Jackson v. County of Du Page (1973), 10 Ill. App.3d 497, 294 N.E.2d 773, is also distinguishable. Significantly, in Jackson there was neither a permitted use at the intersection in question similar to that proposed, nor did the property border on a highway With similar heavy traffic. Substantial residential properties bordered the subject property on two sides with others of “very excellent quality” in the neighborhood. In addition, there was evidence in Jackson of detriments to the public welfare besides depreciation to support the trial court’s determination upholding the ordinance’s validity.

The application of the traditional zoning test to the record before us requires the conclusion that, although the case is close on its facts, no substantial public interest would be served by denial of the proposed use. The judgment of the trial court is not against the manifest weight of the evidence and we therefore affirm.

Affirmed.

GUILD, P. J., concurs.

Mr. JUSTICE THOMAS J. MORAN

dissenting:

An earlier court order had allowed a gas station use on the corner diagonally across from plaintiff's property. That lot is owned by an adjacent nursing home and the permitted use has not been implemented. But for this single, unimplemented court-ordered exception, properties in the immediate area conform to existing residential zoning ordinances.

My review of the record indicates that this is the only factor which distinguishes the present case from our recent decisions in Hawkins v. County of Du Page, 4 Ill.App.3d 306 (1972) and Jackson v. County of Du Page (1973), 10 Ill.App.3d 497, 294 N.E.2d 773. In my opinion, this distinction is insufficient to declare defendant’s ordinance invalid. I feel that the majority decision is inconsistent with our earlier holdings.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Gary Tadd, Defendant-Appellee.
    (No. 72-218;
    Second District
    July 2, 1973.

      James M. Carr, State’s Attorney, of Sycamore, (Charles H. Iskowich, Assistant State’s Attorney, of counsel,) for the People.
    John W. Countryman, of Castle, Burns & O’Malley, of DeKalb, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The State, appeals from a judgment dismissing speeding charges. It contends that the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 601(b)) applied to the offense which occurred on Circle and Graham Drives on the campus of Northern Illinois State University in DeKalb.

If the alleged offense did not take place on a “highway” within the meaning of chapter 11 of the Vehicle Code, defendant cannot be convicted of speeding under Ill. Rev. Stat. 1971, ch. 95%, pars. 11 — 201, 11 — 601(b).

The Code defines a highway as:

“(t)he entire width between boundary lines of every way or place of whatever nature when any part thereof is open to the use of the public as a matter of right for purposes of vehicular traffic, other than public ways for vehicular traffic within a park district for which the park district has maintenance responsibility, excepting the Chicago Park District.” Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 100.

In dismissing the complaint, the trial court found that Circle and Graham Drives were solely owned and maintained by Northern Illinois University, and thus were not streets or highways within the meaning of section 11 — 100 and 11 — 201 of the Code. Ill. Rev. Stat. 1971, ch. 95%, pars. 11 — 100, 11 — 201.

The phrase “open to the public as a matter of right” has been held to mean a street or highway given to the public for a public use and one which every citizen has a right to use. (Cihal v. Carver (1948), 334 Ill. App. 234, 238.) The court in Cihal went on to say that the distinguishing mark of a highway is that it must be a way which is open generaUy to the public use.

The roads in question were in fact owned by the Board of Regents, pursuant to its power to acquire and hold property under section 7 of the Regency Universities Act. (Ill. Rev. Stat. 1971, ch. 144, par. 307.) This Act states that, “All real property acquired by the Board shaU be held for the People of the State of Illinois, for the use of the Regency University concerned.” Thus, although the Board held the roads for the use of Northern Illinois University, the State remained the beneficial owner. (People v. Barrett (1943), 382 Ill. 321, 341; People v. University of Illinois (1928), 328 Ill. 377, 381-2.) The conclusion that ownership of roads is in the State is not decisive however. We must decide whether it then follows that the public may use them "as a matter of right” within the meaning of that term in the Motor Vehicle Code.

The Board of Regents is an agency of the State and holds its campus streets in trust for the People of the State. (See People Gas Lt. Co. v. City of Chicago (1953), 413 Ill. 457, 463, 464.) In this sense, the public may be said to have the use of the streets on the campus as a matter of right and without express permission. This is not to say that the right is absolute and unqualified. The State in the exercise of its police power may regulate the use of its streets and highways in the public interest. (People v. Linde (1930), 341 Ill. 269, 274-5; Chicago Coach Co. v. City of Chicago (1929), 337 Ill. 200, 206-7.) It follows that the State may empower one of its agencies, here the Board of Regents, to regulate and impair the use of streets and roads located on the campus in furtherance of particular needs and uses of the university. (See Dunkel v. Elkins (D. Md 1971), 325 F.Supp. 1235, 1243.) Thus, in effect, the regents could deny use of the roads to the general public “as a matter of right”.

The two cases cited by defendant for the proposition that use of roads by the public principaUy for university purposes does not make them highways (Koch v. Mraz (1929), 334 Ill. 67; People v. Waitkus (1964), 30 Ill.2d 335), are not helpful as they deal with the creation of a highway by prescription or user.

The problem which is presented by the record before us is that there was no evidence presented to the tidal court directed to the question whether the right to use the publicly owned roads located on the campus had been qualified or denied except as a matter of permission in exercise of the authority granted to an agency of the state. In defendant’s brief in this court, it has appended university regulations which state that “University facilities used for vehicular traffic and parking are used by permission of the Board of Regents and not as a matter of right # # # »

However, these regulations were not contained in the record of the trial court proceedings, were not presented to that court, and therefore cannot be considered. Moreover, the conclusions in the regulations do not establish that the university has clearly and correctly interpreted the statutory grant of power to deny the application of the Motor Vehicle Code to traffic offenses occurring on the campus streets and roads.

We therefore reverse and remand with directions to determine whether the public’s right to use the roads in question at the time of the charged offense was qualified or denied except as a matter of permission, under proper grant of authority. If no such regulation is shown, the roads in our view were used by the public “as a matter of right” within the purview of Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 100 and the speeding charge should be reinstated for trial; otherwise the charge should be dismissed.

Reversed and remanded with directions.

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

       This definition is in contrast to that in chapter 1 of the Vehicle Code, which defines a highway as “(t)he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Ill. Rev. Stat. 1971, ch. 95%, par. 1 — 126.

       The regulations also contain a provision G.6. which provides: “Operators of motor vehicles on university facilities are expected to comply with the ‘Rules of the Road’ as outlined in Chapter 11 of the Illinois Vehicle Code (Chapters 95%, Ill. Rev. Stat. 1971), and appropriate provisions of these laws; failure to observe will be a moving violation,”


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Sullivan, Defendant-Appellant.
    (No. 71-169;
    Third District
    June 18, 1973.

      James A. Geis, of Defender Project, of Ottawa, for appellant.
    Robert Richardson, State’s Attorney, of Ottawa, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

In April of 1969 the defendant James Sullivan was indicted for the crimes of burglary and theft from a business known as Herrcke’s Hardware and also for the crimes of burglary and theft from a business known as Cofoid’s Store, both business establishments being located in La Salle County. On May 5, 1969, the defendant entered a plea of not guilty to the charges of burglary and theft. On June 16, 1969, the defendant, being represented by court appointed counsel, withdrew his not guilty pleas and pled guilty to each of the four charges. The circuit court of La Salle County imposed concurrent sentences of not less than 4 years nor more than 7 years in the penitentiary on each of the four crimes charged.

The defendant now appeals from these convictions and a denial of a post-conviction petition and urges as error that the trial court did not personally inform him of the nature of the charges against him; that the trial court did not properly describe the penalty which could be imposed; that there was a failure to apprise him of his right to persist in his plea of not guilty and lastly, there was a failure to admonish the defendant that by changing his plea of not guilty to guilty he was also waiving the right to be confronted with witnesses who might appear against him.

The required procedure at the time of the defendant’s guilty plea is set forth as follows in chapter 38, section 115 — 2 of the Criminal Code:

“(a) Before or during trial a plea of guilty may be accepted when:
(1) The defendant enters a plea of guilty in open court;
(2) The court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.”

Also in effect at the time the defendant tendered his plea of guilty were the regulations set forth in Rule 401(b) of the Supreme Court, Ill. Rev. Stat. 1969, ch. 110A, sec. 401(b), which provided:

“(b) Procedure on Plea or Waiver. The court shall not permit a plea of guilty * * * by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands * * * the nature of the charge against him, and the consequences thereof if found guilty, * * * The inquiries of the court, and the answers of the accused to determine whether he understands his rights * * * and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case.”

In order to resolve the issues raised by the defendant we must examine the record so as to determine whether or not he had a full comprehension of his plea of guilty. In the trial court the following pertinent colloquy ensued:

“State’s Attorney: * 6 * Let the record further show that heretofore on May 5, 1969, the defendant entered a plea of not guilty to all the respective indictments. At this time, it is my understanding that the defendant, by and through counsel, tends to move for the vacation of the previously entered plea of not guilty, and instead plead guilty to each and every one of the aforementioned indictments, being four in number. Is that correct?
Public Defender: That is correct, your honor.
The Court: The court will allow you your motion to withdraw your plea of not guilty. And, before I allow your plea of guilty, I have to tell you a few things. How old are you Mr. Sullivan? Defendant: Thirty one, sir.
The Court: When you offer to plead guilty to a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, I have the duty to determine whether you understand the nature of the charge against you and the consequences thereof if found guilty. Have you discussed with your attorney the nature of the charge against you?
Defendant: Yes, sir.
The Court: Have you read your copies of these various indictments?
Defendant: Yes, sir.
The Court: Do you believe you understand the nature of all those charges?
Defendant: Yes, sir.
The Court: I find that the defendant understands the nature of the charges against him.”

The foregoing colloquy resulted from the trial court’s concern as to whether or not the defendant understood the nature of the charges against him. At the outset we must note that the guidelines to be followed by the trial court in accepting or rejecting a plea of guilty were set forth in chapter 38, section 115 — 2 of the Criminal Code and Supreme Court Rule 401. Supreme Court Rule 402 (Ill. Rev. Stat, ch. 110A, sec. 402) and its more stringent requirements had as yet not been promulgated. We believe that in the present case the trial court made more than a mere inquiry in ascertaining whether the defendant knew the nature of the charges against him. The defendant had counsel and was advised by him. Further the defendant acknowledged that he had personally read the charges contained in the indictment and that he understood them. We believe that the directives of Supreme Court Rule 401 were amply fulfilled. (See People v. Jordan, 133 Ill.App.2d 893, 272 N.E.2d 429.) The defendant argues, however, that in addition to the statutory guidelines the trial court was under a duty to comply with the directives contained in Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. We fail to find in Boykin any requirement that the trial court must personally inform a defendant as to the nature of the charges against him. The decision in Boykin was announced fourteen days prior to the defendants plea of guilty in the instant case and we are aware of the fact that as a result of Boykin our Supreme Court adopted Supreme Court Rule 402. (Ill. Rev. St at, ch. 110A, sec. 402.) In the instant case, however, the statute then governing pleas of guilty was Supreme Court Rule 401, which required that the trial court ascertain if the defendant understood the nature of the charges against him. This the trial court did in the present case.

The defendant further assigns as error that he was not properly informed as to the penalty which could be imposed if he persisted in his plea of guilty. Again we turn to the record which discloses the following:

“The Court: The punishment fixed by law for theft is one to ten years. The punishment fixed for burglary is any indeterminate term in the penitentiary, and what I mean by that is not less than one year. Now with that in mind, the court could sentence you to ten to twenty years, twenty to thirty years, one to ten years. Do you understand that type of sentence that could be given in this case?
Defendant: Yes sir.
The Court: Now, notwithstanding the fact that this penalty might be imposed, do you still want to plead guilty?
Defendant: Yes, sir.”

In examining this admonishment by the court regarding the penalty which could be imposed we can only conclude that the trial court graphically explained to the defendant as to what is meant by an indeterminate sentence. The court did not curtail its admonishment by merely using the words “indeterminate term” as in People v. Terry, 44 Ill.2d 38, 253 N.E.2d 383, or People v. Fairchild, 133 Ill.App.2d 875, 272 N.E.2d 445. The court admonished the defendant by setting forth concrete examples as to what is meant by an indeterminate sentence and we are at a loss to suggest a better procedure. In any event the defendant received sentences of a lesser term than those used as illustrations by the court and hence cannot justifiably complain that he was misled in pleading guilty or ignorant of the possible consequences of such a plea.

The defendant also contends that the court failed to apprise him of his right to persist in his plea of not guilty. The record belies such a contention in that the defendant was advised that he was entitled to a jury trial, that a jury was present for the purpose of hearing his trial and that if found not guilty he would be discharged. The court further advised the defendant that by pleading guilty he would be waiving his right to a jury trial. The defendant indicated by an affirmative answer that he realized he was waiving his right to such trial. This contention of the defendant is not borne out by the record.

Next the defendant complains that the court did not admonish him that by changing his plea to guilty he waived the right to be confronted by witnesses against him. While Supreme Court Rule 402 makes this admonishment a requisite such is not present in Supreme Court Rule 401 which governed the procedure in the present case. However, this precise question was raised in a case where Supreme Court Rule 402 was applicable and the failure to inform the defendant that if he entered a plea of guilty he would be waiving his right to be confronted by witnesses was held not to be reversible error. (People v. Shepard, 10 Ill.App.3d 739, 295 N.E.2d 310.) The defendant in this case was no stranger to the criminal justice system and an analysis of the record discloses that the plea of guilty was made voluntarily and understandingly. We find that the trial court substantially and sufficiently complied with the procedures governing the acceptance of a plea of guilty.

The defendant presents for review one further issue by claiming that convictions and sentences for burglary and theft arising out of the same conduct is error. The State confesses error as to this contention and rightfully so. Since the State concurs as to the question of the separate sentences and judgments it is unnecessary that we discuss this issue in detail. It is obvious that the offenses of burglary and theft on each of the premises involved resulted from the same conduct and therefore should not have involved both convictions for burglary and theft. (See People v. Myles, 2 Ill.App.3d 955, 275 N.E.2d 691.) Burglary being the more serious offense, the defendant’s convictions and sentences for this crime should stand while the convictions and sentences for the offense of theft should be reversed.

For the reasons stated in this opinion the defendant’s convictions and sentences for the crime of burglary are affirmed, but the convictions and sentences for theft are reversed.

Affirmed in part and reversed in part.

ALLOY, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Randy Goodman, Defendant-Appellant.
    (No. 72-106;
    Third District
    June 18, 1973.
    John L. Barton, of Marseilles, for appellant.
    Donald C. Woolsey, State’s Attorney, of Galesburg, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This was a proceeding by information for armed violence based upon an aggravated assault. After a plea of guilty the defendant Randy Goodman was sentenced by the Circuit Court of Knox County to 5 years probation with the condition that the first year be served in Vandalia. Defendant first contends that the information was fatally defective because it did not allege the elements of the underlying offense from which the charge of armed violence was derived — aggravated assault.

The information herein charges that on Feb. 5, 1972 the defendant and two others had:

“Committed the offense of armed violence in that when, armed with a dangerous weapon, to-wit: a loaded pistol, they committed an aggravated assault on the person of Donald M. O’Donnell, in violation of Paragraph 33(A) (2), Chapter 38 * * *.”

Article 33A of the Criminal Code of 1961 was added in 1967 to magnify certain existing offenses into a more serious offense when committed while armed. People v. Hardaway, 108 Ill.App.2d 325. Sec. 33A — 2 reads as follows:

“Armed Violence — Elements of the Offense
A person commits armed violence when, while armed with a dangerous weapon, he performs any act prohibited by Sections 10 — 1, 10 — 2, 11 — 1, 11 — 3, 12 — 2, 12 — 4, 12 — 6, 12 — 7, 16 — 1 (when a theft of property exceeding $150 in value), 19 — 1, 31 — 1, subsection (a) of Section 31 — 6 or sub-section (b) of Sec. 31 — 7 of this Act.”

The pertinent portion of Sec. 12 — 2 Aggravated Assault reads as follows:

“(a) A person commits an aggravated assault, when in committing an assault, he:
(1) Uses a deadly weapon;"

The Committee Comments state: “* * # Note that the elements of a simple assault, specified in section 12 — 1 must be present, and in addition one of the aggravated conditions must exist.” “An aggravated assault must be read with the definition of assault.” People v. Whelan, 132 Ill.App.2d 2, 267 N.E.2d 364; People v. McCaughan, 3 Ill.App.3d 720. Sec. 12 — 1 Assault reads as follows:

“(a) A person commits an assault when, without lawful authority, he engages in conduct which places another in reasonable apprehension of receiving a battery.”

“To commit an assault, including an aggravated assault, one without lawful authority must engage in conduct which places another in reasonable apprehension of receiving a battery.” (People v. Abrams, 48 Ill.2d 446, 459.) “It is sufficient to allege an offense in the language of a statute if the words so far particularize the offense that by their usé alone an accused is informed with reasonable certainty .of the precise offense with which he is charged, (People v. Mills, 40 Ill.2d 4), or by specifically alleging all the facts which constitute the crime.” (People v. Abrams supra.) It is apparent that the information in the instant case fatally fails to state the necessary elements of the underlying offense of assault and the judgment of conviction thereunder must be reversed. See People v. Heard, 47 Ill.2d 501.

It is unnecessary to consider the defendant’s other contentions.

Reversed.

ALLOY, P. J., and STOUDER, J., concur.


text:
    Marshall-Putnam Farm Bureau, Inc. et al., Plaintiffs-Appellants, v. Phillip Bissell Shaver et al., Defendants-Appellees.
    (No. 72-238;
    Third District
    June 19, 1973.

      Walter D. Boyle, of Hennepin, for appellants.
    Heyl, Royster, Voelker & Allen, of Peoria, and Earle V. Ryan, of Toluca, (George Brinkman, of counsel,) for appellees.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff Marshall-Putnam Farm Bureau, Inc., was the owner of a certain building located in the defendant City of Henry, adjacent to a building owned by defendant Shaver. The other plaintiffs were employees of the Farm Bureau and defendant Warner was the mayor of the City of Henry. Plaintiffs filed a fourteen count complaint. Count I alleges that defendant Shaver negligently abandoned his building and allowed it to deteriorate to a condition where it was likely to collapse at any time; that he failed to repair it or demolish it in violation of Illinois Revised Statutes 1969, chapter 127%, section 9. The count further alleges that Shaver’s building did collapse, damaging the Farm Bureau and its building.

Count II alleges that the City of Henry had actual knowledge of the condition of Shaver’s building and had been requested by the Farm Bureau to take action to remedy or alleviate the condition; that the city had a policy of insurance affording coverage to itself, and its officers and employees for liability for damages arising out of such occurrences; that such policy was contracted for pursuant to or by virtue of Ill. Rev. Stat. 1969, ch. 85, sec. 9 — 103; that the city negligently faffed to seek the repair or demolition of Shaver’s building in accordance with Ill. Rev. Stat. 1969, ch. 24, sec. 11 — 31 — 1, or its inherent emergency police power and negligently failed to act pursuant to Ill. Rev. Stat., ch. 127%, sec. 9. The count then alleges the collapse of Shaver’s building and the damages to the Farm Bureau.

Count III is identical to Count II, except it is against the defendant Warner, individually and as mayor of the City of Henry.

Count IV is identical to Count II, except it is based on willful and wanton conduct.

Count V is identical to Count II, except it is based on willful and wanton conduct.

Count VI is identical to Count II, except it is based on willful and wanton conduct and the added allegation that the defendant’s conduct was contrary to Ill. Rev. Stat. 1969, ch. 85, sec. 2 — 202.

Count VII is identical to Count II, except it is against defendant Warner, for willfiil and wanton conduct contrary to Ill. Rev. Stat. 1969, ch. 85, sec. 2 — 202.

Count VIII is for certain employees of the Farm Bureau against Shaver.

Counts IX through XIV are for the employees against the city and Warner. .These counts are based on the same respective theories of liability as Count I and Counts II through VIII. The damages alleged to the employees are for physical and mental discomfort, inconvenience and annoyance while working for the Farm Bureau during the period of the repair of the building.

Counts II through VII and IX through XIV were dismissed by the trial court on the grounds that they were barred by the provisions of Local Governmental and Governmental Employees Tort Immunity Act and were substantially insufficient in law..

Count VIII was dismissed on the ground that it was insufficient in law. Plaintiffs elected to stand on the complaint as filed and have taken this appeal.

The first question presented to us is the constitutionality of Ill. Rev. Stat. 1969, ch. 85, sec. 9 — 103, for the reason that it is a grant of a special privilege to local public entities to determine their own liability for tort. We consider this question to be settled by the supreme court of this state in Sullivan v. Midlothian Park District, 51 Ill.2d 274, 281 N.E.2d 659. The court there held that section 9: — 103 was neither arbitrary nor unreasonable and did not constitute special privilege or special legislation. We therefore hold, in accordance with the provisions of section 9 — 103, that the immunity granted to the defendant City of Henry, and its defendant Mayor Warner, for negligence by reason of the provisions of the Local. Governmental and Governmental Employees Tort Immunity Act will be waived within the limits of a policy of insurance shown to have been contracted for and issued in compliance of section 9 — 103.

The defendant city and mayor next argue that they did not owe any duty to the Farm Bureau. The defendant city and mayor actually take the position that a municipality owes no duty under any circumstances to the owner of a building adjacent to an abandoned building likely to collapse. The Farm Bureau argues that the city and mayor, because of their alleged actual knowledge of the dangerous condition of Shavers building and the request to them by the Farm Bureau to remedy or alleviate the condition, created a special duty to afford protection to the Farm Bureau. Huey v. Town of Cicero, 41 Ill.2d 361, 243 N.E.2d 214.

The question of whether or not a duty was properly performed is a question of fact, but whether, under the facts, the law raises a duty is a question of law. (Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 187 N.E.2d 425, 447; 31 Ill.2d 69, 199 N.E.2d 769.) We believe that Counts II through VII are so far sufficient in law as to afford the Farm Bureau the opportunity for a trial to prove facts sufficient to raise a duty as alleged.

The defendant city and mayor take the position that assuming a duty, there can be no breach, and if there was a breach of duty, it was not the proximate cause of the Farm Bureau’s damages. They argue that only a court can order the repair or demolition of a budding under chapter 24, section 11 — 31 — 1, and that only a fine can be levied under chapter 127%, section 9, and that any action on their part would not have afforded any protection to the Farm Bureau. We cannot agree with this as a matter of law. The Farm Bureau is here also entitled to a trial on these issues. We believe the trial court erred in dismissing Counts II through VII inclusive.

As to Counts VIII through XIV, we believe the trial court properly dismissed these counts. These counts asked for damages for the employees of the Farm Bureau unrelated to physical injury, ownership of the budding or occupancy as an owner or tenant. No case has. been cited to this court permitting recovery for great physical and mental discomfort, inconvenience and annoyance allegedly suffered by the employees in carrying on their employment duties for an owner or tenant of a budding solely because of damage to the building.

Plaintiff cites Schutz v. Abbott Laboratories, Inc., 51 Ill.2d 143, 281 N.E.2d 323. This was a case involving homeowners who suffered a loss of use of their residence and theatre owners and operators who sustained damage to their business. In the absence of a similar property interest in plaintiff employees in this case, the Schatz case does not apply. Fields v. City of Johnston City, 143 Ill.App. 485, also involved a property interest of owners or tenants and does not apply to this case.

For the reasons hereinbefore given, that portion of the order dismissing Counts II through VII is reversed and the cause is remanded to the trial court for further proceedings. That portion, of the order dismissing Counts VIII through XIV is affirmed.

Affirmed in part and remanded in part.

ALLOY, P. J., and STOUDER, J., concur.


text:
    Reldon Trost, Plaintiff-Appellee, v. Frank M. Tynatishon, Individually and as Mayor and President of the Board of Trustees of the Village of Milan, Defendant-Appellant.
    (No. 72-285;
    Third District
    June 19, 1973.

      Franklin M. Wallace, of Rock Island, for appellant.
    William M. Walker, of Rock Island, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff, Reldon Trost, brought an action against defendant, Frank M. Tynatishon, both individually and as mayor and President of the Board of Trustees of the village of Milan, for a writ of mandamus to compel the defendant to sign payroll checks due and owing the plaintiff for services performed and thereafter to be performed. The defendant moved to strike the complaint as it pertained to relief sought against him individually and this motion was granted. After the filing of further pleadings, being a counterclaim and answer by the defendant and an answer to the counterclaim by the plaintiff, the cause was heard and a writ of mandamus was ordered to be issued.

The factual situation which gave rise to this action stems from a dispute between the defendant and the board of trustees of the village of Milan regarding the appointment of a village zoning officer.. The defendant as mayor appointed the plaintiff Trost as zoning enforcement officer to serve from May, 1969, to May, 1970, and from May, 1970, to May, 1971. At a meeting of the village board of trustees on May l, 1972, the board refused to accept a new appointment to the position of zoning officers which was proposed by the defendant. At a subsequent meeting held on June 5, 1972, the defendant stated to the board that he was appointing a John Anderson as zoning officer. It is stipulated by the parties that there was in effect at this time a village ordinance which provided as follows:

“Zoning Enforcing Officer — This ordinance shall be administered and enforced by the Zoning Enforcing Officer who shall be appointed by the President with the Village Board’s concurrence.” Sec. 81, Article 8 of the Ordinances of the Village of Milan.

The defendant’s proposed appointment of Anderson was never voted upon by the trustees but instead a trustee moved that the plaintiff Trost be retained as zoning officer. Upon being put to a vote this motion received three affirmative votes and one trustees’ negative vote as well as a negative vote from the defendant. The village attorney advised that the motion had carried and the defendant then announced that he was vetoing this action taken by the board and that Anderson would be the acting zoning officer until June 19, 1972. It was then moved that the defendant’s appointment of Anderson be rejected and this motion received a three to two affirmative vote, the defendant as mayor again casting a negative vote.

At a subsequent meeting held on June 26, 1972, a motion was made to retain the plaintiff as zoning officer and that his salary be placed in escrow until the problems concerning the appointment were resolved. This motion was carried by the customary three to two vote.

On August 21, 1972, at a meeting of the board the defendant renewed his appointment of Anderson and requested a vote be taken. This request of the defendant was ignored and for what effect if any it may have, another motion was made to retain the plaintiff as zoning officer. This motion received affirmative votes from all trustees and a negative vote from the defendant.

The zoning officers job in the village of Milan is a part-time job and the plaintiff would appear Monday through Friday at the municipal building one hour each afternoon and from 9:00 A.M. to 12:00 P.M. on each Saturday morning. During this time he made inspections, issued permits and attempted to solve the various zoning problems that were presented to him. Anderson also made his appearance at the municipal building during a portion of this time but with the exception of answering the phone on a few occasions and accompanying the plaintiff on two occasions he performed no other duties.

The plaintiff in his petition for a writ of mandamus alleges that he was to be compensated at the rate of $200.00 per month but that the defendant refused to sign and issue to him his salary check. The plaintiff asked that the writ direct the defendant sign and deliver to him his prescribed salary for so long as he is the duly appointed, acting and qualified zoning officer and the trial court directed the issuance of the writ as directed.

It is the contention of the defendant that the trial court erred in directing the issuance of a writ of mandamus under the facts and circumstances of this case. In support of this contention the defendant first argues that John Anderson, who he attempted to appoint as zoning officer, was a necessary party to the action and since he was not made a party the court was without jurisdiction. In support of this argument the defendant cites the case of People v. Powell, 214 Ill. 475, 73 N.E. 795. We quarrel not with the holding set forth in Powell but we do not deem it to be applicable in the present case. In Powell the petitioner sought a writ of mandamus to compel the respondents to withdraw their certification of an individual for the position of sanitary inspector and in his place to certify the petitioner. A different situation prevails in the case before us in that the petition for a writ does not seek to oust an incumbent from office but instead seeks to compel a village official to perform a ministerial duty, namely the signing and issuance of salary checks to a village employee. Rather than the case of Powell cited by the defendant we rely upon Hertel v. Boismenue, 229 Ill. 474, 82 N.E. 298, in which our supreme court found that in a mandamus action to compel a county superintendent of schools to approve a township treasurer’s bond, the former treasurer was not a necessary party since his right to the office was not involved. In the instant case the trial court was not called upon to determine whether or not Anderson was rightfully entitled to the position of zoning officer and he was consequently not a necessary party to the proceedings.

The defendant next argues that mandamus will not lie to compel the doing of an act which one is not yet under an obligation to perform. In making this assertion the defendant is objecting to that portion of the writ in which the trial court directed him “to hereafter pay and deliver unto petitioner said prescribed salary for so long as petitioner is the duly appointed, acting and qualified Zoning Enforcing Officer for said village of Milan.” This issue was not presented in the trial court and we could well take the position that no objection will be considered by this court where it has not been urged in the trial court. (See People ex rel. Bourne v. Johnson, 48 Ill.App.2d 307, 199 N.E.2d 68.) However, regardless of defendant’s failure to properly raise the issue in question we do not believe it to be meritorious. It is clear from the record that the defendant specifically prayed in his counterclaim that the court enter an order declaring the rights of the parties. This the court did but now being dissatisfied, the defendant claims the court went too far when its order provided for future payment of compensation. Had the trial court failed to provide for the issuance of future salary checks to the plaintiff so long as he was entitled to them, then it is foreseeable that each and every month this individual would have been compelled to seek a writ of mandamus. Such a procedure would make “the law” an object of ridicule and therefore is not to be sanctioned.

Next the defendant argues that the plaintiff was a de facto officer rather than a de jure officer and therefore he cannot compel payment of compensation by a writ of mandamus. If the plaintiff was in fact a de facto officer then the defendant’s argument is well taken and therefore we must determine whether the plaintiff’s classification was that of de facto or de jure. An officer de jure is one who is clothed with the full legal right and title to the office. He is one who has been legally elected or appointed to an office, and who has qualified himself to exercise the duties thereof according to the mode prescribed by law.

In order to determine the classification of the plaintiff we direct our attention to the applicable statute, being chapter 24, section 3 — 8 — 1 of Illinois Revised Statutes, which provides:

“Appointments-Resignations. The president, by and with the advice and consent of the board of trustees, may appoint (1) a treasurer; (2) one or more street commissioners; (3) a village marshal; and (4) such other officers as may be necessary to carry into effect the powers conferred upon villages.
Any officer of any village may resign from his office. If such officer resigns he shall contiue in office until his successor has been chosen and has qualified. If there is a failure to appoint a village officer, or the person appointed fails to qualify, the person filling the office shall continue in office until his successor has been chosen and has qualified.” (Emphasis supplied.)

We are of the opinion that the italicized portion of the statute is applicable in the instant case. The plaintiff had been appointed as zoning officer for the village of Milan for the years 1969-70 and 1970-71. His appointment for the years was concurred in by the village trustees and he qualified and assumed the duties of the office. When a dispute arose as to reappointment which resulted in no valid appointment being made pursuant to the village ordinance, then he became a holdover in the office by virtue of the statute which we have set forth and which provides “* * * the person filling the office shall continue in office until his successor has been chosen and has qualified.” We do not find that by his holding over in the office pursuant to statute he was a de facto officer. A de facto officer is one who, while in actual possession of office, is not there in a manner prescribed by law. Such was not the situation in the instant case. The plaintiff was in office by virtue of a statutory provision and consequently was a de jure officer until his successor was appointed and qualified in accordance with the ordinances of the village of Milan. Where tenure of office is for specified time and until successor qualified, expiration of time does not vacate office. City of Pekin v. Industrial Com., 341 Ill. 312, 173 N.E. 339.

The defendant in this appeal attempts to attack the pleadings of the plaintiff by asserting that they do not set forth sufficient facts to warrant a mandamus. Specifically the defendant assigns as error the plaintiff’s failure to plead the village ordinance which provides for the appointment of various officials, including the zoning enforcement officer. Having failed to raise this issue in his motion to reconsider the trial court’s action he cannot now raise the same in this court. However, even if we were to consider this assignment of error we could only conclude that it is not well taken. The ordinance which the defendant now alleges should have been pleaded was introduced and received as evidence by stipulation. From an examination of the record it is clear that the trial court had all the necessary and relevant evidence before it when it decided this case.

For the reasons set forth the judgment of the trial court directing the issuance of a writ of mandamus is hereby affirmed.

Affirmed.

ALLOY, P. J., and DIXON, J., concur.

       For purposes of this opinion the actions of the defendant shall be referred to as actions of the mayor, rather than that of President of the Board of Trustees.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Glenn Hickman et al., Defendants-Appellees.
    (No. 72-32;
    Third District
    June 8, 1973.

      Rehearing denied July 10, 1973.

    Martin Rudman, State’s Attorney, of Joliet, for the People.
    Thomas E. Hett, of Chicago, for appellees.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Robert Bruce Papes, Anthony Rock and Glenn Hickman were indicted by the Grand Jury of Will County for the offenses of murder and burglary. After trial by jury the defendants Rock and Hickman were found guilty of the crimes of murder, burglary and criminal damage to property. Papes was found guilty of burglary and criminal damage to property but not guilty of murder. The defendants Hickman and Rock filed a motion to arrest the judgment of guilty of murder and burglary. This motion was partially granted by the trial court in that the judgment of guilty for the crime of murder was arrested.

Papes was placed on probation for a term of two years for the offense of burglary and as a term of probation was ordered to serve six months at the Illinois State Farm at Vandalia. The defendant Rock was sentenced by the trial court to a term of not less than one (1) year nor more than one (1) year and one (1) day in the penitentiary for the offense- of burglary. The defendant Hickman was placed on probation for the offense of burglary for a period of two years and as a term of probation he was ordered to serve nine months in the Illinois State Farm at Vandalia.

The State has appealed from the order of the trial court arresting the judgment of murder as to the defendants Rock and Hickman.

The factual situation which resulted in the trial of the defendants occurred on the evening of April 2, 1970, at which time seventeen policemen from the police force of the city of Joliet were participating in a surveillance of a building known as the Illinois Wine and Liquor Warehouse. Among the officers involved in the surveillance was Sergeant James Cronk, who shortly before 10:15 P.M. noticed Robert Bruce Papes and the defendant Anthony Rock pass by the warehouse several times in a Cadillac automobile. Later several officers saw a Chevrolet automobile enter an alley south of the warehouse and stop at a side door of the building. Several people left the automobile and disappeared from sight into the doorway. The driver of this vehicle, who was Papes, walked a short distance, made a surveillance of the area, returned to the automobile and then drove out of the sight of the officers. After several minutes Papes was again seen walking in the alley and after once more looking over the area he again disappeared from the sight of the police officers when he went to the location of the side doorway of the warehouse. It was within a matter of a few seconds of Papes’ disappearance that Sergeant Cronk saw three individuals exit from the side doorway of the warehouse, at which time he signaled the officers to close in from various directions towards a concrete parking lot which was to the rear and west of the warehouse.

Papes and the defendants Rock and Hickman upon seeing the officers approaching them proceeded to run. Papes ran in a southwesterly direction and the defendants Rock and Hickman in a northwesterly direction toward some bushes located at the northwest corner of the parking lot. Papes was apprehended when a Sergeant Erwin pointed a shotgun at him. Papes submitted to an arrest and upon his person was found a loaded pistol and additional cartridges. As the defendant Rock was running he was carrying a small object in his hand. The defendant Hickman was carrying an attache case as he was fleeing.

The defendants Rock and Hickman ran through the bushes while in the meantime Sergeant Cronk ran to the rear of the warehouse where he noticed two people running in a northwesterly direction. Sergeant Cronk yelled “halt — police” several times but his commands were ignored. He lost sight of the two fleeing individuals but within seconds thereafter saw a man carrying a handgun running towards the bushes at the northwest corner of the parking lot. Sergeant Cronk, believing that this approaching individual was one of the burglars of the Illinois Wine and Liquor Warehouse, and referring to the handgun, ordered the person to “drop it.” When there was no compliance to this warning Sergeant Cronk fired his shotgun at the individual, who was later discovered to be Detective William Loscheider of the Joliet police force. Loscheider was killed by this shot from his fellow'officer's gun.

Approximately one-half hour later the defendants Rock and Hickman were arrested as they were walking on a street approximately two and a half blocks from the warehouse. Neither of the defendants had a weapon on his person.

Subsequent to the fatal shooting of Loscheider the police officers discovered that entry to the warehouse had been made by removing a panel from the side door and also by removal of the lock from thé door.

During the trial of the defendants an analyst from the Illinois Bureau of Identification Crime Laboratory testified that the tool marks found on the side door of the warehouse were made by a screwdriver found in an attache case which was discovered on the parking lot to the rear of the warehouse.

During the course of the trial the court struck from the murder count of the indictment as to the defendants Rock and Hickman all allegations as to. the defendants arming themselves in furtherance of ' a conspiracy to burglarize the Illinois Wine and Liquor Warehouse.

The foregoing constitutes a brief summary of the unusual factual situation which led to this appeal and which presents to us the question as to whether or not the trial court erred when it entered an order arresting a judgment of guilty of' murder against the defendants Rock and Hickman which had been returned against them by the jury.

More narrowly presented we must determine whether the actual shooting which caused the death of an innocent victim must have been performed by the defendants or someone acting in concert with them in order to comply with the requirements of the felony-murder doctrine.

Our criminal code contains statutory provisions relating to the felony murder doctrine, being Ill. Rev. Stat., ch. 34, sec. 9 — 1(a)(3), which provides:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
# # #
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.”

The defendants urge an interpretation of this statute to the effect that the person who kills or performs the acts which cause death must be the same person as the one who is attempting or committing a forcible felony before liability for murder can be imposed.

While the syntax of the words involved in our felony-murder statute could be interpreted on the restrictive and narrow lines urged by the defendants, we do not believe that in statutory construction we are bound to consider only the wording used in the statute. The court in construing a statute may consider the notes and reports of the commission pursuant to which the statutory provision was adopted. (I.L.P. Statutes, ch. 6, sec. 126, p. 115, see 1952 Op. Atty. Gen. 159.) Turning our attention to the committee comments in regard to the statute in question we find on page 9 of Smith Hurd Ill. Ann. Stat., ch. 38, the following comments in regard to the application of sec. 9 — 1(a) (3), the felony-murder provision:

“It is immaterial whether the killing in such a case is intentional or accidental, or is committed by a confederate without the connivance of the defendant. * * * or even by a third person trying to prevent the commission of the felony.”

In support of the committee comment that one can be guilty of murder where the killing resulted from the act of a third person trying to prevent the commission of a felony, there is cited the case of People v. Payne, 359 Ill. 246, 194 N.E. 539.

In Payne we have a factual situation where armed robbers entered the home of two brothers. One of the brothers discharged a weapon to prevent the robbery as did one of the robbers. The other brother was killed and it could not be determined whether he was killed by his brother or the robber. Our Supreme Court in affirming the defendant’s conviction of murder stated:

“Where several persons conspire to do an unlawful act, and another crime is committed in the pursuit of the common object, all are alike guilty of the crime committed, if it is a natural and probable consequence of the execution of the conspiracy. * * * It reasonably might be anticipated that an attempted robbery would meet with resistance, during which the victim might be shot either by himself or someone else in attempting to prevent the robbery, and those attempting to perpetrate the robbery would be guilty of murder.”

There- are other cases in Illinois where our reviewing courts have recognized that a defendant may be criminally responsible for the killing of another during the commission of a forcible felony even though no certainty exists that the defendant or his cohorts performed the fatal act. (See People v. Krauser, 315 Ill. 485, 146 N.E. 593; People v. Danner, 105 Ill.App.2d 126, 245 N.E. 2d 106.) Our Supreme Court in the Payne case, however, was confronted with a factual situation quite similar to the one presented to us in the instant case and in Payne the court clearly adopted the theory that a defendant and co-conspirators acting in concert- with him can be held responsible for a killing of an innocent third party during the commission of a forcible felony even though the killing was not actually done by a person acting in concert with the defendant or his co-conspirators.

We hold it to be of no consequence that in the instant case Detective Loscheider was killed at. a time when the defendants were attempting to escape. Our Supreme Court has held that the period of time involved in an escape with immediate pursuit after committing a crime becomes part of the crime itself. (See People v. Golson, 32 Ill. 2d 398, 207 N.E. 2d 68.) In Golson the court quoted language from the opinion in People v. Bongiorno, 358 Ill. 171, 192 N.E. 856, wherein it was stated:

“* * * [W]here two or more persons engage in a conspiracy to commit robbery and an officer is murdered while.in immediate pursuit of either or both of the offenders who are attempting to - escape from the scene of the crime with the fruits of the robbery, each of the conspirators is gmlty of murder, for the crime had not been completed at the time inasmuch as the conspirators had not won their way to a place of safety. We pointed out that a plan to .commit robbery would be futile if it did not comprehend an escape with the proceeds of the crime, and that unless the plan was to kill any person attempting to apprehend the conspirators at the time of or immediately upon gaining possession, of the property, the plan would be inane.”

The defendants both in the trial court and in this appeal urge that the applicable law is set forth in the case of People v. Morris, 1 Ill. App. 3d 566, 274 N.E. 2d 898. In Morris the defendant and two cohorts entered a restaurant armed for the purpose of committing a robbery. A struggle ensued between a patron and one of the cohorts during which gunfire erupted and the cohort was killed. The defendant Morris, one of the would-be robbers, was charged with murder of his co-conspirator under the theory of the felony-murder doctrine and was convicted of the crime of murder by the trial court. The reviewing court reversed the trial court holding that the felony-murder doctrine is not applicable against a surviving felon when a co-felon is justifiably killed during commission of a forcible felony.

We do not believe that the rationale of the Morris case is controlling in the instant case since Morris presented a factual situation which differed in one very significant detail. In Morris, unlike the case before us, the victim was not an innocent third party. In Morris the victim was not free from culpability but was in fact an individual who was attempting to commit a felony. We do not hold that the character of the victim is controlling merely because he was a felon, nor do we indulge in the fanciful theory that the victim being a felon assumed the risk and thereby constructively consented to his death, but we do hold that he assisted in setting in motion a chain of events which was the proximate cause of his death and therefore in the criminal law as in the civil law there is no redress for the victim.

Clearly the case of People v. Payne, 359 Ill. 246, 194 N.E. 539, and the case now before us are distinguishable from Morris in that unlike Morris, innocent parties were killed. We interpret Payne as setting forth the rule that he whose act causes in any way, directly or indirectly, the death of an innocent victim is guilty of murder by virtue of the felony-murder doctrine.

We are aware of the conflicting views from other jurisdictions concerning the application of the felony-murder doctrine in cases such as we are now considering, but we are only concerned with following the law as it has been established in our own state, and therefore hold that Payne is. controlling in the instant case and that the defendants are guilty of the crime of murder. There should be no doubt about tire “justice" of holding a felon guilty of murder who engages in a robbery followed by an attempted escape and thereby inevitably calls into action defensive forces against him, the activity of which results in the death of an innocent human being.

Mr. Justice Cardozo in “The Nature of the Judicial Process”, pages 66, 67, said, and we believe wisely, that “When they (Judges) are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance. * * * The final cause of law is the welfare of society.”

Following the precepts of Justice Cardozo we need not extend the existing rules in order to protect society, but are only required to follow the law as set forth in the case of Payne. This we do and accordingly direct that the order of the trial court of Will County arresting the judgment of murder as to tire defendants in this case be reversed and that further this case is remanded for sentencing of the defendants for the crime of murder.

Reversed and remanded.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Green et al., Defendants-Appellants.
    (No. 12006;
    Fourth District
    June 20, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellants.
    Basil G. Greanias, State’s Attorney, of Decatur, (Scott B. Diamond, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendants-Appellants Jerry Green and Gene Hubbard entered pleas of guilty to the charge of armed robbery and each was sentenced to an indeterminate term of 5 to 7 years in the penitentiary.

On June 20, 1972, the defendants appeared before the trial judge. Defendants’ counsel announced that the defendants were offering to plead guilty. The following exchange between defendants’ counsel and the judge appears in the record:

“THE COURT: The indictment has been returned for a number of weeks now and they have been furnished copies of the same. I assume they understand the nature of the charges?
MR. DAVIS: I have explained them fully to them, Your Honor, and I believe they do.
THE COURT: All right, the indictment is rather short and concise. Next let’s get into if they understand the nature of the charges, let’s get into what the Criminal Code provides in the way of a possible penalty or sentence, * *

Thereafter the court fully and carefully admonished the defendants in conformity with sub-pars. (2), (3), (4) of Rule 402, and determined, in conformity with sub-sec. (b) that the plea was voluntary, and determined in conformity with sub-sec. (c) that there was a factual basis for the plea. The record further discloses, however, that the court overlooked the explanation of the nature of the charge. This omission requires reversal. The provision of Rule 402 which directs that the court shall not accept a plea of guilty without first addressing the defendant personally, informing him of and determining that he understands the nature of the charge is a requirement separate and distinct from the provisions of sub-par. (c) which mandates the determination of a factual basis for the plea. These two requirements are in separate paragraphs of the Rule and one does not duplicate the other. Informing the defendant of the nature of the charge requires that the trial judge by reading or paraphrasing the essential allegations of the indictment, explain to the defendant the acts (and the accompanying state of mind where applicable) which the State alleges him to have committed; it also requires that the court then read or paraphrase and explain to the defendant the applicable, section of the Criminal Code which proscribes the conduct attributable to the defendant as alleged in the indictment

The factual basis of the plea consists of an express admission by the defendant that he committed the acts alleged in the indictment (with the accompanying state of mind where applicable) or a recital to the court of evidence which will support the allegations of the indictment.

Accordingly the judgment of the trial court is reversed and the cause remanded with directions to permit the defendants to plead over.

Reversed and remanded with directions. .

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


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Rudolph, Defendant-Appellant.
    (No. 56428;
    First District (5th Division)
    June 8, 1973.

      James J. Doherty, Public Defender, of Chicago, (Suzanne M. Kohut, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert C. Samko, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant was found guilty after a jury trial of the crimes of murder of Francisco Servidio and armed robbery of Caroline Ballinger. After a hearing in aggravation and mitigation, he was sentenced to twenty to thirty-five years for murder and fifteen to twenty-five years for armed robbery, the sentences to run concurrently.

Defendant raises the following issues on appeal: whether the admission into evidence of the testimony of Charles and Mildred Bastin, concerning an illegally seized radio, and of defendant’s statement to police violated defendant’s fourth and fourteenth amendment rights; whether defendant was proven guilty of the offenses of murder and armed robbery beyond a reasonable doubt; whether the court’s failure to instruct the jury on “mere presence” at the scene of a crime denied defendant a fair trial; and whether the sentence imposed by the trial court is excessive. EVIDENCE

Defendant and Kenneth Helm were both indicted for the murder of Francisco Servidio and the armed robbery of Francisco Servidio and Caroline Ballinger. Prior to trial defendant moved to suppress a statement which defendant had given to the police, on the grounds that he was not informed of his constitutional rights. The motion was denied. Defendant then moved to sever his cause from that of his co-defendant, which was granted.

Defendant also moved to suppress the use of a radio seized by the police in the apartment of Charles and Mildred Bastin, defendant’s brother-in-law and sister. At the hearing, it was established that the police went to the Bastin apartment on the belief that defendant might be residing there. Mr. and Mrs. Bastin answered the door and the officers identified themselves and asked if defendant was inside. Mrs. Bastin testified that the police knew that defendant was her brother. Mr. Bastin told police that he did not know where defendant could be found. The officers asked permission to enter, and before any reply was given, they walked into the apartment. Officer Sandburg confiscated a radio from the top of a bookcase. Since no express invitation was given the police, the trial court granted the defendant’s motion to suppress the radio as a product of an illegal search. Defendant then moved to suppress testimony of Charles and Mildred Bastin involving the radio and a statement by defendant to police on the theory that both were the fruits of the illegal search and seizure. The court denied the motion.

The trial began on June 1, 1971 with Mrs. Caroline Ballinger testifying for the State that she, her husband, and the deceased, Francisco Servidio, resided in a first floor apartment at 2513 West Harrison Street in Chicago. At approximately 4:00 A.M. on the morning of May 29, 1970, Mrs. Ballinger was awakened by the ringing of the front doorbell. Looking through the window in the front door, she saw a male whom she did not recognize, who asked to see the deceased and asked to come inside because someone was trying to kill him. After refusing to allow the stranger to come inside, Mrs. Ballinger returned to bed. The witness testified that approximately fifteen minutes later she was awakened by a crash at the back door. While attempting to leave the apartment and seek help, the man she had seen earlier at the front door grabbed her, put a knife to her throat, and pulled her back into the apartment. Another man, not as tall as the one who grabbed her, was also inside the apartment. The two men demanded money and she gave them some. While left alone, she escaped through the back door. She stopped a police car and upon returning to her apartment with the police, she discovered the deceased bleeding profusely from an apparent stab wound, and that $150 belonging to the deceased, $35 of her own money, the deceased’s wristwatch, and her radio were all missing.

Charles Bastin testified for the State that on May 29, 1970 at approximately 6:00 A.M., defendant, carrying a radio, and Kenneth Helm, co-defendant, entered the Bastin home. Appearing “high” and “shaky,” the two men counted on the kitchen table approximately one hundred dollars, dividing the sum between them.

Police Officer Thomas Sherry testified that on June 3, 1970 defendant voluntarily surrendered himself to the police after a warrant for his arrest was issued. After defendant was placed under arrest, informed of the charges against him, and advised of his constitutional rights, defendant made a statement in the presence of Sherry and another police officer. Defendant stated that at 6:00 A.M. on May 29, 1970 he left the Bastin apartment to go to the Maxwell Street business area to buy some things for his children. He met an acquaintance, one Kenneth Helm. The two men proceeded to the home of the deceased, Francisco Servidio, where Helm said he was going to make some money. Helm went around to the rear of the apartment while the defendant remained outside. When Helm did npt reappear after some period of time, defendant entered the first floor apartment from the rear of the building. He saw Helm, butcher knife in hand, standing over the deceased who was lying on the floor bleeding. He told Helm that he wanted no part of the crime, left the apartment, and proceeded down an alley. After Helm later rejoined him, defendant bought a radio from Helm for seven dollars. He also told the police that he knew that the radio was a part of the proceeds of a robbery, that he wasn’t sure, in advance, that Helm entered the building to rob someone, and that Helm had a habit of robbing people in the area.

At the end of the State’s case-in-chief the defendant moved for. a directed verdict. The court granted the motion in regard to the armed robbery of Francisco Servidio, denying it as to the other counts.

Defendant testifying in his own behalf related much the same account of the morning of May 29, 1970 as did Officer Sherry. Defendant claimed that he met Helm between 7:30 and 8:00 A.M., that he had no knowledge of the robbery, that he walked inside the apartment and saw Helm standing over the deceased with a knife in hand, and that defendant received $80 for a painting job. Defendant was convicted of murder and armed robbery and took this appeal.

OPINION

Defendant contends that the testimony of Charles and Mildred Bastin should have been suppressed by the trial court as being the product of an unlawful search and seizure. Defendant’s first theory of. exclusion is that since the identity of the two witnesses was discovered, by reason of an unlawful search and seizure of the apartment, their entire testimony should have been suppressed. Defendant cites two cases in support of this contention. (People v. Albea (1954), 2 Ill.2d 317, 118 N.E.2d 277 and People v. Martin (1942), 382 Ill. 192, 46 N.E.2d 997.) The two cases are distinguishable because the identity of the witnesses in both cases was discovered as a result of illegal searches. In the case at bar, Mrs. Bastin testified that the police knew that defendant was her brother. The police officers believing that defendant could be found at the Bastin home went there, where they were confronted by Mr. and Mrs. Bastin at the door. Clearly, the officers knew that the Bastins were potential witnesses before the illegal search of the premises ever occurred and the two witnesses were properly allowed to testify.

Defendant’s second theory is that neither Mr. Bastin nor Mrs. Bastin would have testified but for their being confronted with the illegally seized radio. The court in United States v. Evans (8th cir. 1972), 454 F.2d 813, reached the same issue and upheld the trial court’s admission of the testimony into evidence. In Evans, the police illegally searched a Mr. Chandler’s car and upon discovering burglary tools confronted Chandler with the tools and demanded an explanation. Chandler then implicated defendants in a burglary. In upholding the conviction, the court held that even though a “but for” relationship between the illegal seizure of the evidence and the statement by Chandler may have existed, the relationship was too attenuated to require reversal. In reaching this conclusion, the court relied upon Wong Sun v. United States (1963), 371 U.S. 471, 487-88:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint’ ”

In the case at bar, the name and identity of the Bastins were properly acquired by the police and not by use of any illegal means. There is no contention that the officers acted in bad faith in the search or in the interrogation. Also, the Bastins apparently voluntarily cooperated with the police in giving a statement at their apartment and with the State in testifying at trial. We find that the relationship between the illegal seizure of the radio and the statements by the Bastins to be too attenuated to require suppression of the statements.

Defendant next contends that his own statement to police after his arrest should have been suppressed. Defendant’s first theory of exclusion is that his statement was induced by the police officers’ confronting him with the illegally seized radio. We reject this argument since we find nothing in the record to indicate that defendant was, in fact, confronted with the radio.

Defendant’s second theory of exclusion is that were it not for the unlawful seizure of the radio, no probable cause to arrest defendant existed; were it not for the probable cause for arrest, no arrest warrant could issue; were it not for the existence of the arrest warrant, defendant would not have been threatened with arrest; and were it not for being threatened with arrest, defendant would never have surrendered himself and made the statement. Without deciding whether this chain of events theory is legally valid, we find that even without the unlawful seizure of the radio, probable cause for arrest existed. Mr. Bastin’s statement to police (already held to be admissible (see infra)) concerning the radio and linking defendant to Helm, was itself a sufficient basis for probable cause. Therefore, we hold that defendant’s statement to police was properly admitted into evidence.

Defendant next contends that the State did not prove him guilty of murder and armed robbery by the required standard of proof. We find that on the basis of evidence presented to the jury, the defendant was proven guilty beyond a reasonable doubt. Caroline Ballinger, one of the victims, testified that when she first attempted to escape from Helm, she noticed another strange man in her apartment. This other man and Helm both demanded money. Defendant admitted being at the scene of the crime, that he and Helm were alone at the time, and that he was unlawfully in the apartment. The jury evidently believed Mrs. Ballinger’s testimony that Helm’s companion personally took part in the robbery and disbelieved defendant’s claim that he remained outside while the robbery was consummated. Mr. Bastiris testimony further linked defendant to the crimes, when he stated that defendant and Helm brought a radio to the Bastin apartment (the same morning a radio was stolen from Caroline Ballinger), that the two men had approximately fifty dollars each, which they counted on the witnesses’ kitchen table, and that both men were highly excited. We find overwhelming evidence to support the conviction of defendant for personally participating in the armed robbery. Even accepting defendant’s version of the events, that he had no direct involvement in the actual stabbing of the deceased, defendant’s conviction for murder likewise is sustained on the basis of his accountability for the actions of his co-felon, Helm, under Ill. Rev. Stat. 1969, ch. 38, sec. 5 — 2. In so ruling, we follow the case of People v. Chavis (1967), 79 Ill.App.2d 10, 223 N.E.2d 196, which sustained the convictions of co-robbers for the attempted murder by one of them during the course of tire robbery. Although prosecution under Ill. Rev. Stat. 1969, ch. 38, sec. 9 — 1(a) (3), tire so-called felony murder statute, would have been preferable under the facts of our case, People v. Chavis approves of the present prosecution under the accountability statute.

Defendant argues that accountability is not proven by mere presence at the scene of the crime. We agree, but find sufficient involvement by defendant in the planning, commission, and retaining of the proceeds of the crime. Defendant also argues that his guilt on an accountability theory is predicted on the guilt of his cofelon. This is clearly not the law. (See Ill. Rev. Stat. 1969, ch. 38, sec. 5 — 3.) Therefore, we find that defendant was proven guilty beyond a reasonable doubt of armed robbery and murder.

Defendant next argues that the trial court committed error in failing to instruct the jury that mere presence of the defendant at the scene of a crime is insufficient to establish guilt by way of accountability. The court is under a duty to instruct the jury only as to the elements of the crime with which the defendant is charged. (People v. Davis (1966), 74 Ill.App.2d 450, 221 N.E.2d 63). A jury instruction dealing with defendant’s theory of the case is not given as a matter of right by the trial court on its own initiative. (People v. Carvin (1960), 20 Ill.2d 32, 169 N.E.2d 260; People v. Baker (1956), 8 Ill.2d 522, 134 N.E. 2d 786). Since defendant did not tender an instruction on “mere presence,” the trial court was under no duty to instruct the jury on its own motion.

Defendant finally contends that his sentence is excessive. The Illinois Supreme Court in People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269 held that the sentencing provisions of the Uniform Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, Secs., 1005 — 8 — 1) applies to cases pending on direct appeal. Thus, we are obliged to apply the Uniform Code of Corrections to the case at bar. The statute sets out a suggested minimum in the case of murder, 14 years, and in the case of armed robbery (a Class I felony), 4 years. The court is granted discretion to set a higher minimum term by considering “the nature and circumstances of the offense and the history and character of the defendant.” The trial judge had an opportunity, superior to ours, “in the course of the trial and hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed * * *” (People v. Taylor (1965), 33 Ill.2d 417, 424, 211 N.E. 2d 673, 677; People v. Adams (1969), 113 Ill.App.2d 205, 220, 252 N.E.2d 35,43.) In view of tire very violent nature of the crimes committed, we feel that the trial court in sentencing defendant was acting well within the discretion conferred by the statute, and that this is not an appropriate case for this court to exercise its power to reduce the sentence.

The judgment is affirmed.

Affirmed.

DRUCKER, P. J., and ENGLISH, J., concur.

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

       Sec. 5 — 3 provides in part:
      A person who is legally accountable for the conduct of another which is an element of an offense may be convicted upon proof that the offense was committed and that he was so accountable, although the other person claimed to have committed the offense has not been prosecuted or convicted * * *.

       Secs. 1005 — 8 — 1 (c) provides in part:
      (1) for murder, the minimum term shall be 14 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term;
      (2) for a Class I felony, the minimum term shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term;


author: Mr. JUSTICE SIMKINS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edmund Papanni, Defendant-Appellant.
    (No. 11950;
    Fourth District
    July 12, 1973.
    Albert F. Manion, of Defrees, Fiske, Voland, Alberts & Hoffman, of Chicago, for appellant.
    James R. Rurgess, Jr., State’s Attorney, of Champaign, (Robert G. Frederick, Assistant State’s Attorney, and Robert Park and Joel Halper, Senior Law Students, of counsel,) for the People.
   Opinion by

Mr. JUSTICE SIMKINS.


author: Mr. JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Larkin, Defendant-Appellant.
    (No. 72-157;
    Second District
    June 12, 1973.
    Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Opinion by

Mr. JUSTICE T. MORAN.