text:
    Joseph Galluccio et al., Plaintiffs-Appellees, v. The Hertz Corporation, Defendant-Appellant.
    (No. 69-124;
    Fifth District
    September 7, 1971.

      Pope and Driemeyer, of East St. Louis, for appellant.
    Hoagland, Maucker, Bernard & Almeter, of Alton, (James K. Almeter, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This action was brought to recover damages based upon the dual theories of implied warranty and strict liability in tort. There were originally four plaintiffs. One of the plaintiffs, Galluccio, leased a Ford Econoline Van from the defendant, Hertz Corporation. The remaining three plaintiffs, Richard Cicere, Salvatore Barnetti and Carmelo Di Maria were passengers in the van and were members with Galludo of a rock and roll band. Tire group was traveling in the defendant’s vehicle from St. Louis, Missouri to Rock Island, Illinois. The plaintiffs were involved in a collision with an automobile driven by a person not a party to this action. The plaintiffs alleged that faulty brakes on the leased vehicle was the proximate cause of the collision.

Trial was held in January and February, 1969, and at the conclusion of the evidence plaintiff was granted leave to file an “Amendment to Complaint” which contained only the theory of strict liability in tort. The jury rendered a verdict for plaintiffs Galluccio, Barnetti and Di Maria. Upon these verdicts the court, on February 3, 1969, entered judgment from which this appeal is taken. Plaintiff Cicere apparently dismissed his count of the original complaint when the “Amendment to Complaint” was filed.

The defendant-appellant, The Hertz Corporation, hereinafter called Hertz, presents the following issues for review by this court. (1) Did plaintiffs’ amendment to complaint as amended state a cause of action? (2) Was plaintiff Barnetti, the driver of the vehicle, guilty of negligence as a matter of law and should the special interrogatory finding he was not so negligent be set aside? (3) Were the plaintiffs at the time of the collision engaged in a joint enterprise and should the special interrogatory finding that they were not so engaged be set aside? (4) Is the negligence of Barnetti imputable to plaintiff Galluccio? (5) Is the negligence of Barnetti imputable to plaintiff, Di Maria? and (6) Should the court grant a new trial for the defendant in the case of each plaintiff?

The collision which resulted in this lawsuit occurred on February 12, 1967, at about 6:30 P.M. at the intersection of Route 111 and Hartford Road on what is also known as Madison Avenue in Madison County, Illinois.

Plaintiffs had just finished their musical engagement at a night club in St. Louis. On February 11, 1967, plaintiff Galluccio leased a 1963 Ford Econoline Van from Hertz. The purpose of leasing the vehicle was to transport the group and instruments to their next engagement in Rock Island, Illinois.

The plaintiffs left St. Louis, Missouri, in the Hertz vehicle the afternoon of February 12, 1967, bound for Rock Island, Illinois. They were on their journey until the collision. The plaintiff, Barnetti was driving, plaintiff Galluccio was sitting in the middle of the front seat, plaintiff Di María was sitting on the right seat in the front. Richard Cicere was lying down in the back of the vehicle with the cargo.

At the time of the collision it was dark and the weather was clear. The intersection in question is four lane north-south on Route 111 and two lane east-west on Hartford Road. The intersection is controlled on all corners by stop signs. There is a railroad crossing fifty-eight feet four inches south of the southeast corner stop sign. The southeast corner stop sign controls traffic approaching the intersection from the south.

The plaintiffs were proceeding from the south in a northerly direction on Route 111 in the right-hand lane closest to the shoulder. The other vehicle in the collision was being driven in a southerly direction on Route Ill. This second vehicle made a stop at the intersection and proceeded to turn left (to the east) onto Hartford Road. The plaintiffs’ vehicle did not stop and struck the right side of the second vehicle. The plaintiffs’ vehicle left two skid marks thirty-nine feet six inches long. The skid marks commenced seven feet south of the southeast corner stop sign and continued uninterrupted to the point of impact.

The plaintiffs alleged that the brakes on the leased vehicle were faulty which proximately caused the accident. Plaintiffs’ evidence showed that the brakes were last relined some 45,000 miles before the collision. There was also evidence that the master brake cylinder on the vehicle had to be refilled from one-half to three-fourths every four months since December, 1965. The master cylinder was last refilled before the collision of June 10, 1966, some 11,600 miles and eight months before the collision.

Plaintiff Barnetti testified that the brakes failed causing the collision. He stated that as he approached the intersection of the collision, south of the railroad sign, he saw a sign on his left which said something about a stop ahead and he applied his brakes. “I hit my brake, and I got a brake”. About twelve or thirteen car lengths from the railroad sign he noticed two car lights ahead of him in an odd position. He stated that it looked as though they were coming up the island which separates the lanes of the highway. He testified that at this time his speed was 45 miles per hour. He observed the railroad sign and a red thing behind the railroad sign. When he was six to eight car lengths from the railroad sign, he again applied his brakes to slow down going over the railroad tracks. This time, however, upon applying the brakes, “there was nothing”. The vehicle kept rolling and he started to pump the brakes and tried to shift into second. As he passed over the railroad tracks he testified that he managed to pump up the brakes. When he felt a brake, he gripped the steering wheel hard and kept his foot hard on the brake. The next thing Barnetti recalls is waking up on the ground.

Plaintiff Bametti further testified that prior to the collision while driving the vehicle he had had difficulty with the vehicle. He said the steering was loose and the brakes were spongy and low. By “spongy” he said he meant the brake pedal was not solid.

A Mr. Donald Matthews used the vehicle last before the plaintiffs. He turned the van in on February 11, 1967. His testimony agreed with Barnetti that the brakes were low, the brake pedal going more than half-way to the floor. He also agreed that the steering was loose and worn.

The van was examined after the accident by a Mr. William Klug on behalf of the plaintiffs and by a Mr. Fred H. Deppe on behalf of the defendant. Mr. Klug was Automotive Service Manager and in charge of service operations of Hulton Ford, Wood River, Illinois. He has been in the automotive service field for virtually all of his working years which number in excess of 20. Over the past 15 years he has worked on or supervised the work on an average of one brake system a day. This work included Ford Econoline braking systems. Mr. Deppe is a metallurgist. His knowledge of hydraulic brake systems is “from the standpoint of a metallurgist factor”. He averaged for the past fifteen years from eight to fifteen brake disassemblies per year for brake failures. His only experience on Ford Econoline brakes is disassembly.

Both Mr. Klug and Mr. Deppe agreed that a “spongy” brake pedal indicated that the brake fluid had gotten low and air had gotten into the hydraulic system. They also agreed that when this happens a driver can suddenly lose his brakes entirely and that the brake pedal can then be built up by pumping. Both agreed that a 1963 Ford Econoline should have brakes relined approximately every 30,000 miles. Both agreed that the brakes on the van were worn out.

At the close of plaintiffs’ case and at the close of all the evidence the defendant filed Motions for Directed Verdict which were denied.

The defendant first contends in this appeal that this court should enter judgment in arrest of judgment since plaintiffs’ Amendment to Complaint as amended did not state a cause of action against the defendant. Defendant asserts that the law of strict liability in tort applies only to the sale of goods and applies to manufacturers, wholesalers, and retailers of goods citing Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill.App.2d 315, 229 N.E.2d 684, quoting from p. 334:

“The language of Suvada is all inclusive as to the parties in a chain who places the article into commerce. Prosser, in the Law of Torts, 3rd ed., Chapter 19, § 97, p. 862, discusses the liability of retailers and wholesalers, saying:
‘All of the valid arguments supporting strict liability would appear to apply with no less force against both kinds of dealers; and there are enough cases where the manufacturer is beyond the jurisdiction, or even unknown to the injured plaintiff, to justify giving the consumer the maximum of protection, and requiring the dealer to argue out with the manufacturer any questions as to their respective liability. Particularly today, when the large wholesale supply house or even the retail chain is often actually the prime mover in marketing the goods, and the manufacturer only a small concern which feeds it, there is no reason to draw distinctions between different kinds of sellers.’ ”

Plaintiff Galluccio was the bailee of the van and he executed the agreement. Defendant contends that the rights, duties and liabilities between, plaintiff Galluccio and the defendant must be governed by the Lease Agreement and law of bailment, and not the law of strict liability in tort. Defendant cites Insurance Company v. Elgin, Joliet & Eastern Ry. Co. (1956), 229 F.2d 705, 7th Cir. quoting at 1. 712:

“As said in 8 C.J.S., Bailments, §22, p. 255: 'The rights, duties, and liabilities of the bailor and the bailee must be determined from the terms of the contract between the parties, whether express or implied. Where there is an express contract, the terms thereof control, since both the bailor and the bailee are entitled to impose on each other any terms they respectively may choose, increasing or diminishing their rights, and their express agreement will prevail in the absence of such an agreement.’ ”

If this be correct, then the duty of the defendant to plaintiffs Barnetti and Di Maria must be considered as those of a bailor to third parties. This duty is set forth in Chambliss v. Walker Construction Co., 46 Ill.App.2d 287, 197 N.E.2d 83, a 1964 case and Huckabee v. Bell and Howell, Inc. (1969), 102 Ill.App.2d 429, 243 N.E.2d 317. The bailor is liable to a third person for injury if (1) he supplied the chattel in question; (2) the chattel was defective at the time it was supplied; (3) the defect could have been discovered by a reasonable inspection; and (4) the defect was the proximate cause of the injury. It must be pointed out that the Huckabee case was tried on the Scaffolding Act and common-law theories. The Chambliss case was likewise not tried under the theory of strict liability in tort. This court, as did the court below, finds compelling the reasoning and holding of Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769. Some of that Cpurt’s observations are:

“A bailor for hire, such as a person in the U-drive-it business, puts motor vehicles in the stream of commerce in a fashion not unlike a manufacturer or retailer. In fact, such a bailor puts the vehicle he buys and then rents to the public to more sustained use on the highways than most ordinary car purchasers. The very nature of the business is such that the bailee, his employees, passengers and the traveling public are exposed to a greater quantum of potential danger of harm from defective vehicles than usually arises out of sales by the manufacturer * # °. (T)he liability of the manufacturer might be expressed in terms of strict liability in tort * * *. By analogy the same rule should be made applicable to the U-drive-it bailor-bailee relationship. Such a rental must be regarded as accompanied by a representation that the vehicle is fit for operation on the public highways.”
# # #
“Since the exposure of the user and the public to harm is great if rented vehicle fails during ordinary use on a highway, the answer must be that it (strict liability) continues for the agreed rental period. The public interests involved are justly served only by treating an obligation of that nature as an incident of the business enterprise. The operator of the rental business must be regarded as possessing expertise with respect to the service life and fitness of his vehicles for use. That expertise ought to put him in a better position than the bailee to detect or to anticipate flaws or defects or fatigue in his vehicles. Moreover, as between bailor for hire and bailee the liability for flaws or defects not discoverable by ordinary care in inspecting or testing ought to rest with a manufacturer who buys components containing latent defects from another maker, and installs them in a completed product, or just as it rests with a retailer at the point of sale of the consumer. And, with respect to failure of a rented vehicle from fatigue, since control of the length of the lease is in the lessor, such risk is one, which in the interest of the consuming public as well as of the members of the public traveling the highways, ought to be imposed on the rental business.” (Italics ours)

Cases from other jurisdictions in accord are McClaflin v. Barshire Equipment Rental Company, 79 Cal.Rptr., 337, Aetna Insurance Co. v. Guidry, 216 So.2d 859, Ettin v. Ava Truck Leasing, Inc., 251 A.2d 278, 53 N.J. 463, Martinez v. Nichols Conveyor, etc. Co., 52 Cal.Rptr. 842. See also A.L.R.2d 850 Anno. Lease on Hire-Warranties. Therefore, to the extent that the Chambliss and Huckabee cases are inconsistent with this opinion they will not be followed. Our conclusion is further strengthened by the case of Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182. The logic and rationale of the case, which dealt with a purchase, is quite appropriate to the case at hand, in which a lease is involved. ‘Without extended discussion, it seems obvious that public interest in human life and health, the invitations and solicitations to purchase the product and the justice of imposing the loss on the one creating the risk and reaping the profit are present and as compelling in cases involving motor vehicles and other products, where the defective condition makes them unreasonably dangerous to the user * * Therefore, we conclude the plaintiffs’ amended complaint as amended states a cause of action.

Defendant next asserts that the verdict and judgment in favor of Barnetti is against the manifest weight of the evidence as Barnetti was guilty of negligence as a matter of law. We cannot so find. This case was tried before the decision in Williams v. Brown Mfg. Co., 45 Ill.2d 418, 261 N.E.2d 305, declaring contributory negligence, as generally known in negligence actions, not a bar to recovery in strict product liability tort action. The jury we know, because of their answer to the special interrogatory in which they found plaintiff Barnetti was not guilty of negligence, considered the issue of Bametti’s negligence. Under the rule as set forth in Pedrick v. Peoria and Eastern Railroad Company, 37 Ill.2d 494, 229 N.E.2d 504, defendant was not entitled to a directed verdict or a judgment notwithstanding the verdict. Considering the evidence as a whole and keeping in mind that the jury is the arbiter of the credibility of the witnesses and weight to be given their testimony, there was sufficient evidence from which the jury could find that Plaintiff Barnetti was not guilty of contributory negligence. The jury’s verdict was not against the manifest weight of the evidence under the tests laid down in Haas v. Woodard, 61 Ill.App.2d 378, 209 N.E.2d 864 and Roth v. Lissner Iron & Metal Co., 88 Ill.App.2d 352, 232 N.E.2d 534. As stated in Haas v. Woodard, verdicts and judgments are not considered against the manifest weight of the evidence unless a conclusion opposite to that reached by the jury is clearly evident or that the jury’s verdict is palpably erroneous.

Because of the above holding, aU contentions made by the defendant that the jury incorrectly found the plaintiffs, in response to special interrogatories, not engaged in a joint enterprise; and the question of negligence aUegedly imputed to plaintiffs Di Maria and GaUuccio, must now be considered moot and, therefore, we shaU not consider them.

We shall now consider those remaining issues for which the defendant has cited authority for its view.

The defendant urges that the court erred in aUowing plaintiffs’ witness, William Klug, to give an opinion as to the braking efficiency of the left front wheel of the van. Defendant cites People v. Jennings (1911), 252 Ill.534, 96 N.E.2d 1077. We agree wherein it is stated “Expert evidence is admissible when the witnesses offered as experts have peculiar knowledge or experience not common to the world, which renders their opinions, founded on such knowledge or experience, an aid to the Court or jury in determining the questions at issue.” This case, however, does not conflict in any manner with Supolski v. Ferguson & Lange Co., 272 Ill. 82, 111 N.E. 544, from which we quote “The qualification of an expert witness rests largely in the discretion of the trial judge, and this Court will not reverse a case on that ground unless that discretion has been manifestly abused”. The qualifications of Mr. Klúg have, in part, been set forth previously and no purpose would be served by our now listing additional facets of Mr. Klug’s qualification. There has not been an abuse of discretion by the trial court.

Next, the defendant states that the plaintiffs’ counsel made inflammatory and improper argument to the jury which was prejudicial to the defendant. Defendant first contends that plaintiffs’ counsel comment on why the defendant’s counsel rejected certain jurors. Second, that defense counsel was referred to as a “corporation counsel” or “corporate attorney” and third, defendant objects to the following statement of the plaintiffs’ counsel made over objection: “He’ll (Di Maria) never go into his son’s bedroom at six o’clock in the morning and say * * # wake up son, it’s time to go hunting will he? He’ll never go out and say, son, let’s throw a football. He’ll never have a fifteen year old daughter come up to him and * * *. This boy will never be able to engage in a normal family life. Would that be worth a hundred thousand dollars? I think it would.”

As stated in Elizer v. Louisville & Northern Ry. Co., 128 Ill.App.2d 249, 261 N.E.2d 827: “The rule governing review of assignments of error based upon alleged improper argument to the jury is clearly stated in Belfield v. Coop., 8 Ill.2d 293, 134, N.E.2d 249. The character and scope of argument to the jury is left very largely to the trial court, and every reasonable presumption must be indulged in that the trial court has performed his duty and properly exercised the discretion vested in him (case cited). The attitude and demeanor of counsel and the general atmosphere of the trial are observed by the trial court, and cannot be reproduced in the record on appeal. The trial court, is therefore, in a better position than a reviewing court to determine the prejudicial effect, if any, or a remark made during argument, and unless clearly an abuse of discretion, its ruling should be upheld.” The trial court in its opinion and order stated “The court * * * finds no prejudicial error in plaintiffs’ final argument”. We find no abuse of discretion.

As a final issue for review, the defendant urges that the trial court erred and abused its discretion in giving certain instructions tendered by plaintiffs over defendant’s objections and refusing to give certain instructions tendered by defendant.

The defendant objects to the giving to the jury of plaintiffs’ Instruction No. 8. The Instruction is I.P.I. No. 15.01 defining proximate cause. Defendant urges the court erred because the instruction referred to the possibility of concurring causes. We think that there was sufficient evidence before the jury to allow them to adequately understand the nature and extent of the conduct of all the parties in the collision of the two vehicles. Thus, the jury could have determined that some negligence rested with the other vehicle. It was not prejudicial error for the whole instruction to have been given when, in fact, only the first sentence might have been given. Butler v. Palm, 36 Ill.App.2d 357, 184 N.E.2d 633. As noted in the Note on Use in I.P.I., “This instruction in its entirety should be used only when there is evidence of a concurring or contributing cause to the injury or death (other than acts or omissions of the plaintiff). In cases where there is no evidence of a concurring or contributing cause, the short version without the bracketed material may be used.” Here plaintiff Barnetti testified that although his vehicle was approaching the intersection without his being able to slow down, the other vehicle did not stop or slow down but continued to make its turn in front of him. Plaintiff Barnetti also testified that the lights of the other vehicle seemed to be coming from the island. Thus there was some evidence that there may have been fault other than that of the plaintiffs and defendant, herein.

The defendant further objects to the following instruction given to the jury as Plaintiffs’ Instruction No. 12:

“One who leases any product in a defective condition unreasonably dangerous to the use is subject to liability for physical harm to be caused to the user if:
a. The Lessor is engaged in the business of leasing such product, and
b. It is expected to reach the user in the condition in which it is leased.
This rule applies even if the lessor has exercised all possible care in the maintenance and lease of his product.
If you decide that the defendant violated the principles above stated on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not the defendant is liable.”

This instruction was identical to the approved in Dunham v. Vaughan & Bushnell Mfg. Co., supra, except for the references to the product being leased instead of being sold. In view of our holding as above stated, we find this instruction to be correct.

This court holds that the remaining objections to the instructions either given or refused are not well taken and that no purpose would be served by a more exhaustive recitation.

The judgment of the trial court is affirmed.

Judgment affirmed.

CREBS and JONES, JJ., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. Henry Lampley, Appellant.
    (No. 70-162;
    Fifth District
    September 7, 1971.

      MORAN, J., dissenting.
    Morton Zwick, Director of Defender Project, of Chicago, (Kenneth L. Gillis, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of this court:

On a plea of guilty to theft of an automobile the circuit court of St. Clair County sentenced the defendant, Henry Langley, to the penitentiary for a term of not less than eight nor more than ten years. The sole issue presented on review is whether such sentence was so harsh and excessive as to require a reduction under the authority of Rule 615 (b) (4), Illinois Supreme Court Rules.

At defendant’s hearing on his application for probation it was determined that he was 48 years of age and that he was on parole at the time of his present offense. He had been previously convicted on several occasions for similar offenses and had received a one year sentence in 1954, two years for stealing in 1957, five to ten years for burglary and larceny in 1958, and six to ten years in 1964. Other than statements by counsel that defendant had not been convicted of any crimes of passion or violence and that he had served four years in the armed forces, no evidence in mitigation was offered.

Defendant contends, (1) that the sentence itself violates the principle of indeterminacy and therefore the minimum term should be reduced, (2) that the theft of an eight year old car is so close to a misdemeanor in terms of value that the entire sentence was inappropriate.

Defendant’s argument on the principle of indeterminacy is based on the cases of People v. Scott, 117 Ill.App.2d 344, and People v. Jones, 92 Ill.App.2d 124. In these cases notice is taken of the theory that to preserve the principle of indeterminacy a court should not impose a minimum sentence which exceeds one-third of the maximum. The theory is premised on the reasoning that a spread of years between the minimum and maximum terms permits an earlier parole, if warranted, and yet retains control and guidance for a further period of time which can be helpful in rehabilitation. We subscribe to this theory but even as stated in Scott it can be considered only as a guide and not as a hard and fast rule. Sentencing is a difficult task requiring the exercise of discretion based upon the facts of an individual case. It cannot, and should not, be subject to an arbitrary application of a simplistic mathematical formula. Here defendant has been convicted of a number of similar offenses and has received and served substantial sentences. He has shown no inclination to rehabilitate himself, nor has supervision on parole had any beneficial effect as indicated by the fact that he was on parole even at the time of his present offense. But defendant argues that a prior criminal record does not automatically mean that an offender is beyond rehabilitation. However true this statement may be in the abstract, it is irrelevant here. Defendant has demonstrated a remarkable propensity to commit the same type of offense over and over regardless of the penalty imposed and whether or not under parole and subject to supervision. Without some evidence of an effort to rehabilitate himself or even an expression of a desire to do so it can hardly be concluded that he will change his habits at this particular point in time. Under these circumstances we find that the lack of a substantial spread of years between the minimum and maximum of the sentence imposed is not of itself an adequate reason for reduction of the minimum term.

Finally, defendant contends that the entire sentence was inappropriate, that it was too harsh for the crime committed in that the theft involved an 8 year old car that was not worth much more than $150. He cites People v. Marshall, 96 Ill.App.2d 124 and People v. Glasgow, 126 Ill.App.2d 82, in support of his argument. In Marshall the defendant was convicted of an $8, unarmed, non-violent robbery and in spite of his prior record his sentence was reduced from a term of 5 to 12 years to 3 to 6 years. In Glasgow the conviction was for burglary in which the defendant obtained a pair of shoes and though defendant had a substantial prior record his sentence was reduced from a term of 5 to 10 years to 2 to 5 years. We have no quarrel with these cases, but neither do we believe that they should be determinative of the case before us. Here defendant stole an automobile, not a late model but nonetheless probably just as essential to the owner as a new model would be to its owner. As we have recently reiterated in People v. Dodd, Agenda 71-58, (Ill.App.2d), the authority of a reviewing court to reduce a sentence should bet applied with considerable caution and circumspection. (People v. Taylor, 33 Ill.2d 417); and the burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. (People v. Nelson, 41 Ill.2d 364). Here we find a total absence of any mitigating circumstances tending to confirm the possibility of rehabilitation, and in recognizing the need to adequately punish defendant for his crime and to safeguard the public from further offense of a similar nature, we find the sentence imposed by the trial court was proper.

The judgment of the circuit court of St. Clair County is affirmed.

Judgment affirmed.

JONES, J., concurs.

Mr. JUSTICE GEORGE J. MORAN

dissenting:

The majority disregards our opinion in People v. Lillie, 79 Ill.App.2d 177, which was authored by a former member of this court, wherein we said at ages 177, 178 and 179:

* * * We are, however, also aware of the constitutional provision that all penalties shall be proportioned to the nature of the offense (Article II, Section 11, Constitution of Illinois), and what purposes, hopefully, are to be achieved by the imposition of punishment for a criminal offense. People v. Brown, 69 Ill.App.2d 447, 208 N.E.2d 629; People v. Evrard, 55 Ill.App.2d 270, 204 N.E.2d 777.
‘It is generally true that rehabilitation is best achieved under a system which gives great discretion to tire parole authorities.’ (People v. Brown, supra.)
It is also true that the courts, by exercise of the power to fix minimum and maximum punishments within the limits provided by the Criminal Code, share with the parole authorities the responsibility for appropriate and effective implementation of the penal statutes.
# # #
The purposes sought to be achieved by the imposition of sentence are adequate punishment for the offense committed, the safeguarding of society from further offenses, and the rehabilitation of the offender into a useful member of society. People v. Brown (supra), People v. Evrard (supra). Adequacy of the punishment should determine the minimum sentence, with the maximum dependent upon the court’s divination as to the length of time required to achieve rehabilitation.
# # #
Advances in the fields of psychology, psychiatry and sociology have contributed to a greater understanding of the motives underlying the commission of criminal offenses, and the techniques and methods which are of value in the rehabilitation of offenders. Tire hope of earlier release is a great incentive to a prisoner to participate in the educational and rehabilitation of programs provided in modern penal institutions. Excessive minimum sentences, imposed by the courts may defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished.
Inherent in the parole system is the risk of recidivism, but an enlightened society has long since rejected the medieval concept of punishment which imposed the death penalty for crimes now categorized as petty offenses. Society’s safeguard against recidivism is the power of the parole authorities to terminate the conditional release and return the offender to prison. A lengthy maximum sentence is not so likely to impede the operation of the system because the prisoner, although subject to parole supervision, is not mandatorily confined.” (Emphasis added.)

The Lillie opinion has been quoted extensively by the courts of review in this state as a wise dissertation on the modern law of sentencing with due regard for the proper position of the courts in the sentencing process. This court quoted Lillie with approval in People v. Swafford, 89 Ill.App. 2d 176, and then said at 179: “The general purposes of the criminal code as set forth in chapter 38, section 1—2 are to prescribe penalties which are proportionate to the seriousness of the offense and which permit recognition of the rehabilitation possibilities among individual offenders, and to prevent arbitrary or oppressive treatment of persons accused or convicted of offenses.”

We further stated in Swafford that the sentence we imposed after modification of the trial court’s sentence was one that was proportionate to the offense committed and gave a great deal of discretion to the parole authorities.

In People v. Jones, 92 Ill.App.2d 124, Justice Drucker, speaking for the First District, Fourth Division, also quoted People v. Lillie and went on to say at page 128: “In American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Tentative Draft 1967) it was recommended to the legislatures at page 21 that: ‘In order to preserve the principle of indeterminacy, the court should not be authorized to impose a minimum sentence which exceeds one-third of the maximum sentence actually imposed.’ We believe these principles to be sound.”

In People v. White, 93 Ill.App.2d 283, Justice Craven of the Fourth District, speaking for a divided court, quoted Lillie with approval and went on to say at 288-89:

“* * * In addition, this sentence offends against the legislative mandate that all sentences be indeterminate, and an indeterminate sentence necessarily presupposes an opportunity for release determination under the Sentence and Parole Act. A sentence of not less than four nor more than five years effectively mitigates against that philosophy. What should be the spread between a minimum and a maximum sentence cannot be determined with mathematical certainty, nor indeed should the spread be subject to a precise and rigid formula necessarily applicable to all cases.
That there should be a substantial spread is obvious. We find ourselves in agreement with the general philosophy as expressed in People v. Brown, 60 Ill.App.2d 447, 208 NE2d 629 (1st Dist 1965); People v. Jones, 92 Ill.App.2d 124, 235 NE2d 379 (1st Dist 1968). See also 1966 U Ill L Forum 523, et seq., and ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternative and Procedures 21 (Tent Draft 1967).”

In People v. Freeman, 113 Ill.App.2d 7, Justice Lyons, speaking for the First District Appellate Court, Second Division, quoted Lillie with approval and went on to say at 15: “* * # Our legislature has indicated that it favors all sentences to the penitentiary to be for an indeterminate term. Ill. Rev. Stats. (1965), c. 38, Par. 1—7(e). In People v. Jones, 92 Ill.App.2d 124, 128, 235 NE2d 379, 381 (1968), the court recognized as a sound guideline, in implementing this principle of indeterminacy, that the trial court should not be authorized to impose a minimum sentence which exceed one-third of the maximum sentence actually imposed. Furthermore, in People v. Lillie, 79 Ill.App.2d 174, 179, 223 NE2d 716, 719 (1987), the court noted that excessive minimum sentences could defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished and by destroying any incentive a prisoner might have to participate in the educational and rehabilitation programs provided in modern penal institutions.”

In People v. Scott, 117 Ill.App.2d 344, Justice Craven, speaking for the Fourth District, quoted Lillie with approval and had this to say at 350: “The minimum sentence measures parole eligibility. The maximum sentence measures the length of time that the inmate may be incarcerated, even without favorable parole consideration. When there is a substantial spread between the minimum and the maximum of a sentence the inmate in the institution can be directed toward academic or vocational training, and favorable prospective parole consideration operates as quite a catalyst. The existence of a substantial spread between the minimum and the maximum ensures the availability to the defendant of supervision after incarceration. The principle of indeterminacy of sentence necessarily leaves to the professionals in the behavioral sciences the determination of the optimum date for release. The court, in fixing the maximum, determines the total length of possible incarceration.”

I would not dismiss People v. Glasgow, 126 Ill.App.2d 82 and People v. Marshall, 96 Ill.App. 23 124, with a stroke of the pen as the majority does. Instead, I would follow them because in each of these cases the appellate court considered the petty nature of the offense in reducing the sentence, even though the defendants in both cases had prior records as bad, if not worse, than the defendant in the present case. In other words, the decisions in these cases made the punishment fit the crime, A most recent opinion, People v. Pantoja, - Ill.App.2d -(1st Dist.) written by Justice Burke, one of the most distinguished jurists in this state, recognized the emphasis that should be placed on rehabilitation by reducing a burglary sentence of ten to 25 years to five to 15 years in the penitentiary, even though the defendant had prior convictions for malicious mischief and burglary, remarking that the trial court sentence for all practical purposes negated the possibility of defendant’s rehabilitation.

The Tentative Final Draft of Illinois Unified Code of Corrections prepared by the Council On The Diagnosis and Evaluation of Criminal Defendants established by the General Assembly of Illinois, drafted a correctional code for submission to tire Illinois Legislature recommending, among other things, that the sentencing court “shall not impose a minimum period which is in excess of one-third of the maximum sentence imposed by the court.” Article 540-1.

The new Illinois constitution approved by the people of Illinois to take effect July 1, 1971 provides within its Bill of Rights that “(a) 11 penalties shall be determined both according to tire seriousness of the offense and with the objective of restoring the defender to useful citizenship.” Ill. Const., Article I, Section 11 (effective July 1, 1971). If the goals of the new Constitution are to be carried out, meaningful review of trial court sentences is essential because this is the only way to create a stable body of state law on this subject.

The majority opinion in this case completely disregards our statement in Lillie that all punishment should be proportioned to the nature of the offense. The punishment in this case does not fit the crime. Eight to ten years in prison is a long, long time to serve for stealing an eight year old car, the value of which could hardly have been more than the $150.00 required to take the crime out of the realm of petty larceny which carries a maximum sentence of one year. In other words, for committing a theft which to all intents and purposes amounted to petty larceny, he is given about as harsh a sentence as could be meted out for grand larceny.

The majority opinion in this case does not effectively share with the parole authorities the responsibility for appropriate and effective implementation of our penal statutes as we said it should in Lillie because the trial court and the majority in this appeal have arrogated to themselves the sole decision that this defendant is beyond rehabilitation.

The majority opinion in this case does not recognize that rehabilitation is best achieved under a system which gives great discretion to the parole authorities as we did in Lillie, for under this sentence they have little or no discretion to deal with this defendant.

The majority opinion in this case does not recognide that there have been advances in fields of psychiatry, psychology and sociology and that there are new techniques which are of value in the rehabilitation of offenders as we did in Lillie. When delivering the Louis D. Brandéis Lecture for 1960, David L. Bazelon, a renowned jurist and criminologist said: "In the administration of the criminal law today, we desperately need all the help we can get from modern behavioural scientists — before trial, and after trial. The law by itself, without these workers, is cast in the hopeless role of a socially isolated, traditional bulwark against the welter of personal, social and economic forces which create today’s problem of crime and the so-called criminal population.”

The majority opinion does not recognize that the hope of an earlier release is a great incentive to a prisoner to participate in the rehabilitative programs provided in modem penal institutions and has removed from him that incentive.

The majority opinion completely disregards our statement in Lillie that excessive minimum sentences may defeat the effectiveness of the parole system.

The majority opinion ignores the rationale of Lillie, Jones, White Freeman and Scott and the intent of our legislature that all sentences should be indeterminate.

Justice Bazelon’s words in 1960 were prophetic because in the past few years we have seen a great effort by the State of Illinois and other states to rehabilitate those incarcerated in our penal institutions through techniques developed by the behavioral scientists. At one of the Annual Illinois Judicial Conferences we heard the Director of the Department of Corrections for the State of Illinois, a behavioral scientist, tell us that the principal object of the Department was to alter the behavior of the inmates so that they could function when they returned to society. Great strides are now being made by behavioral scientists in treating the mentally ill, in aiding children with learning disability and in altering the behavior of criminals. James V. McConnell, Criminals Can Be Brainwashed — Now, Psychology Today, 14 (April, 1970); Milton Rokeach, Persuasion that Persists, Psychology Today, 68 (Sept. 1971); Roger W. McIntire, Spare the Rod, Use Behavior Mod, Psychology Today, 42 (Dec. 1971); M. Hindelang, A Learning Theory Analysis of The Cor rectional Process, Issues in Criminology, 43 (Winter 1970); J. D. Grand, Delinquency Prevention Through Participation in Social Change, Criminal Law Bulletin, 530 (July-August 1971).

Most behavioral scientists claim that all criminal behavior has to be learned, and what can be learned can be unlearned. In other words, they now claim that recidivism can be treated. However, if the courts remove their rehabilitation tools, we will never know whether their claims are valid.

It is no secret that disparity of sentences, long minimum sentences and no substantial spread between the minimum and maximum sentence, make the rehabilitation of prison inmates much more difficult. The sentence the majority now affirms has all of these vices.

I dissent.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John David Daugherty, Defendant-Appellant.
    (No. 70-138;
    Fifth District
    September 15, 1971.

      Pearce & Fechtig, of Carmi, for appellants.
    Frank Bonan, State’s Attorney, of McLeansboro, for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The defendant was convicted of the crime of theft of property not exceeding $150.00 in value in violation of Ill. Rev. Stat, ch. 38, par. 16—1, at a jury trial in the circuit court of Hamilton County.

He contends that he was not proven guilty beyond all reasonable doubt. The evidence discloses that on December 17, 1969 Loren W. LeVault took his two female beagle hounds hunting near his home in Flannigan Township, Hamilton County, Illinois. He returned home at dark, but left the dogs running. He heard the dogs running about ten o’clock that evening and let them run all night without making any attempt to retrieve them. Both dogs had collars, but neither had identification tags. When the dogs did not appear the following morning, he began a search for them. On December 27, 1969, he went to Kincaid, Illinois and met three men who subsequently testified that they had purchased two female beagle hounds from the defendant. LeVault made positive identification of the dogs at the time he met the three men.

The defendant testified that on December 19 he saw a man with a couple of beagle hounds hunting rabbits on his rented farm. After talking with the man for a few minutes he bought the dogs from him for $20.00. No receipt or bill of sale was given or requested. The same day he went to Kincaid, Illinois and sold the dogs.

Whether the defendant stole the dogs as contended by the State or purchased them as he contended was a question of fact decided adversely to the defendant by the jury. The weight and credibility of the evidence is essentially a matter for the trier of fact. In our opinion there was sufficient evidence for the jury to find the defendant guilty beyond all reasonable doubt.

The defendant next contends that the trial court abused its discretion when it failed to grant him a continuance so that he could be represented by counsel of his own choice. The defendant originally retained a lawyer who appeared with him at his arraignment and who tried this case on his behalf. Approximately two months elapsed between the arraignment and the trial and the defendant was out on bond during this period. Prior to the trial his lawyer told defendant that he could not represent him unless he was paid or unless he was appointed by the court to represent him. The defendant did not ask for other counsel until he appeared at trial. At the trial the defendant informed the court that he had retained another lawyer, but that lawyer was unavailable because he was a delegate to the Constitutional Convention of the State of Illinois, The trial judge then appointed the lawyer who had been representing him from the beginning to represent him at the trial. The lawyer then announced ready for trial with no further objection from the defendant. Under these circumstances we cannot say that the trial court abused its discretion in refusing to grant the defendant a continuance for the purpose of retaining other counsel. People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239.

Defendant finally contends that the trial court improperly instructed the jury. We have examined all of the instructions and find that the trial court fully and properly instructed the jury on every phase of this case.

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

Judgment affirmed.

EBERSPACHER, P. J„ and JONES, J., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Appellee, v. Roy Cook, Appellant.
    (No. 69-53;
    Fifth District
    September 16, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Matthew J. Moran, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (William R. Poston, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Roy Cook, pleaded guilty in the circuit court of St. Clair County to the crime of murder and was sentenced to the penitentiary for a term of not less than 50 nor more than 75 years. On appeal here he contends that the trial court erred in entering final judgment on his guilty plea without first determining that there was a factual basis for the plea in contravention of Supreme Court Rule 402(c). (Ch. 110A, Sec. 402(c), Ill. Rev. Stat. 1969 Supp.) He also argues that on the basis of the testimony at his hearing in aggravation and mitigation the trial court should have recognized that he was under a misapprehension as to the facts and law involved and that the court on its own motion should have caused the guilty plea to be withdrawn.

Defendant’s indictment consisted of four counts charging that on February 18, 1968, he committed murder, murder while attempting to commit a felony, aggravated battery and attempt to commit a burglary. He was arrested nine days after the crime and at his arraignment he pleaded not guilty. On February 17, 1969, accompanied by his privately retained attorney, he requested and was granted leave to change his plea to guilty as to the first count of murder and the other three counts were then dismissed. Admitting that the trial court’s constitutional admonishments preceding acceptance of his plea were full and complete, defendant seems to base his appeal on the “factual basis” question arising solely from his own testimony at the hearing in aggravation and mitigation.

At this lengthy hearing it was determined that Louis Obernuefemann was shot and killed in the yard of his home when he returned and discovered two men apparently trying to burglarize his house. Defendant testified that he had gone to the decedent’s house with James Mullinix, not to burglarize it, but because Mullinix wanted to talk with the decedent concerning a union problem involving a charge that the decedent was engaging in scab carpenter work. When Mullinix started to pry open the back door defendant said he told him he did not want to get involved, but at that moment the decedent and his son drove up, so he and Mullinix jumped into the bushes to hide. Defendant stated that he then pulled out his gun, a Lama 380, cocked it and held it on his hip while in a prone position alongside his friend. He then said that the decedent approached the bushes with a shotgun and struck him across the nose with the butt end; that defendant’s gun went off accidentally; that he then ran to his car and drove off. He stated he went to a tavern, hid his gun there, and then disposed of his car in a nearby lake. Later, after discarding his pants because they were powder burned, he went to Mullinix’s house to inquire about him as he thought he may have killed Mullinix. In answer to a specific question if he knew he was pleading guilty to murder, defendant answered, “Yes, but it wasn’t my gun that killed him. It wasn’t the gun in my hands.” He stated that the State claimed a .22 caliber bullet killed the decedent and that Mullinix had been carrying a .22 caliber gun and, in fact, had admitted to him that he had shot the decedent. In answer to further questions, defendant admitted that he could have fired his gun more than once and that he never told Mullinix about getting hit by the decedent.

James Mullinix testified that he and the defendant went to the decedent’s house to burglarize it, having picked it out at random as it did not look as if anyone were home. He stated that he was a carpenter but that he held no union office, that he did not know the decedent and did not know whether he was a carpenter. While using a pry bar on the back door a car drove up and he and defendant jumped into the bushes. When decedent and his son approached the bushes he heard several shots, one going right by him at the boy, and he then ran and went back to his own house on foot. He stated that he was not armed, but that defendant had a .22 caliber automatic. Later, he said, defendant came to his house and told him that after driving around looking for him he had disposed of the car in a lake. He stated further than he did not notice anything unusual about defendant’s nose or face and defendant did not say anything about it.

Decedent’s 16-year-old-son testified that as they drove up to the house they noticed a strange car and being suspicious, his dad got a 6" steel rod from the trunk. They then walked towards the back of the house and two men jumped out from the bushes, one of them shooting. He was hit in the arm and the one who ran to the car and drove off was the man with the gun. Decedent’s wife testified that her husband was an automobile mechanic, not a carpenter; that he' did not have a shotgun; that she heard 4 or 5 shots and that the man who got in the car came from the side of the bush where the shots were fired. The other man ran off in a different direction.

At the conclusion of the testimony there was no request nor even an indication that defendant wished to withdraw his plea. He was specifically asked by the judge whether he had anything further to say before pronouncement of sentence and he replied in the negative. His attorney stated that in his opinion there were very few contradictions between defendant’s story and that of the State’s witnesses and urged merely that in imposing sentence the court should keep in mind the possibility of rehabilitation in view of the fact that defendant was a young man of 27 years of age with a wife and two children.

Defendant’s first contention that the court’s failure to determine a factual basis for his plea prior to its acceptance automatically necessitates a vacation of the plea is without merit. He cites McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, as authority for his argument interpreting Rule 11 of the Federal Rules of Criminal Procedure, which is almost identical with our Supreme Court Rule 402(c) relative to a determination of a factual basis for a plea, it was there held that such rule should be strictly construed and that failure to comply with it requires that the plea be vacated. Subsequently, however, it was held that this decision was not applicable retroactively, that only those defendants whose guilty pleas were accepted after April 2, 1969, the date of the McCarthy opinion, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11. (Holliday v. United States, 394 U.S. 831, S.Ct. 1498.) We hold the same to be true in Illinois, for Supreme Court Rule 402(c) did not become effective until September 1, 1970, and defendant’s plea herein was made and accepted on February 17, 1969. We therefore find that the rule is inapplicable in this case and defendant is not entitled to an automatic vacation of his plea.

Apparently in anticipation of this ruling defendant proceeds to a further argument that his plea cannot be said to have been entered knowingly and with full understanding in face of the fact that at the hearing three days later he actually denied that his presence on the scene was motivated by any criminal intent. We cannot accept this argument. It is purely self-serving, and, if recognized as valid, it would open a Pandora’s box of never ending litigation affecting all guilty pleas and subjecting them to doubt at the whim of the accused. A defendant has no absolute right to withdraw a plea of guilty. (People v. Christman, 128 Ill.App.2d 232.) Permission to do so rests in the sound discretion of the trial court to be granted when necessary to correct a manifest injustice based on the facts of the individual case. (People v. McNair (Agenda 71-25) (Ill.App.2d).) Nor is a subsequent statement of innocence sufficient of itself to require aUowance of a motion to withdraw a guilty plea where a defendant has been properly and fully admonished prior to acceptance of his plea, for it is the obligation of the defendant to show that a court has violated its discretion in refusing to permit a withdrawal. (People v. Walston, 38 Ill.2d 39.) Here neither defendant nor his attorney saw fit even to request the trial court to withdraw his plea. It would appear that defendant’s purpose at his hearing in aggravation and mitigation was merely an attempt to gloss over his involvement in the crime in an effort to persuade the court to impose a lighter sentence that he might have otherwise. We find that defendant’s contention, made for the first time on appeal, is not weH taken. It is clear that defendant was fully and properly admonished and that at the time he entered his plea he did so knowingly and with full understanding. It is likewise clear from his own testimony that he fired a number of shots, not just one accidentally, and that he disposed of his gun, his car and his pants; and he even reiterated that he knew he was pleading guilty to the murder of decedent. As stated in North Carolina v. Alford, 91 S.Ct. 160, an accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the acts constituting the crime, or even if his guilty plea contains a protestation of innocence, when he intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt.

Under the circumstances of this case we can perceive of no reason why the ends of justice would be better served by vacating defendant’s plea and allowing him to plead anew. The judgment of the circuit court of St. Clair County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frederick Freerking, Defendant-Appellant.
    (No. 70-64;
    Second District
    September 9, 1971.
    Opinion by Mr. JUSTICE GUILD.
    E. Roger Horskey, of Defender Project, of Elgin, for Appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (Dudley E. Owens, Assistant State’s Attorney, of counsel,) for the People.


text:
    Kenneth G. Hardway et al., Plaintiffs-Appellees, v. Board of Education of Lawrenceville Township High School, District No. 71, Defendant-Appellant.
    (No. 70-68;
    Fifth District
    September 16, 1971.
    Gosnell, Benecki & Quindry, of Lawrenceville, (Maurice E. Gosnell, of counsel,) for appellant.

      Drach, Terrell & Deffenbaugh, of Springfield, (Valjean R. Smith, of counsel,) for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The defendant, Board of Education of Lawrenceville, appeals from an order of the circuit court of Lawrence County wherein judgment was entered in behalf of the eight plaintiffs in amounts ranging from $98.00 to $724.00 per plaintiff.

On March 22, 1967 the Board of Education of Lawrenceville Township High School District No. 71, Lawrenceville, Illinois, approved a salary schedule for the 1967-1968 school year. On April 17, 1967, a notice was sent to each teacher which indicated the maimer in which that individual’s salary was determined. This was computed by listing the teacher’s degree, plus semester hours beyond that degree, and the years experience in teaching. These notices included a provision that the contracts were subject to the School Laws of the State of Illinois. The eight plaintiffs were all teachers within the District and each received a notice specifying his salary and the method of computation.

On May 19, 1967, the Illinois Legislature amended Section 24-8, Chapter 122, Illinois Revised Statutes to provide for certain increases in the minimum salary which school boards may pay teachers. The pertinent provisions of the section state:

“Effective July 1, 1967, and based upon experience in a school district, teachers who serve on a full-time basis shall have their salaries increased to at least the following amounts above the starting salary for a teacher in such district in the same classification; * *

On May 26, 1967, the Office of the Superintendent of Public Education issued a memorandum written by its legal advisor which read in part:

“To all County Superintendents and School Administrators:
The Governor approved House Bill No. 797 on May 19, 1967, and we enclose herewith a copy thereof. Numerous questions have already aiisen concerning the proper interpretation of some of the provisions of the Bill. It has therefore been determined that a general memorandum on this subject is advisable.
There can be no doubt that the first paragraph of Section 24-8 fixes the absolute mínimums which must be paid beginning July 1, 1967, to full-time teachers.
The second paragraph of the Bill provides for salary increases effective July 1, 1967, based upon experience in a school district, with a provision for increases in the amounts therein set forth ‘above the starting salary for a teacher in such district in the same classification.’ It is the opinion of this office that the reference to such district applies to a school district in which the teacher is presently employed on a full-time basis. In order to make up the requirement of 5 years experience, 8 years experience, or 13 years experience as provided in the bill, such experience may only be counted for the district in which the teacher is employed and which will be required to grant the increases. In other words, a teacher who has taught in other districts may not have the experience in those districts counted as qualifying such teacher for an increase in salary # *

Thereafter the Board of Education adopted a motion which provided that experience outside the district would not be included in the calculation. A revised salary schedule was prepared to conform with the decision. Under the revised schedule none of the plaintiffs received a lesser salary than that contained in the original notice of April 17, 1967.

The plaintiffs filed suit alleging that the revised salary schedule did not give them full credit for the years experience set forth in the notice of April 17. For example, the notice of April 17, 1967, sent to the plaintiff, Kenneth G. Hardway, stated:

“Your salary for the 1967-68 school year is determined from the salary schedule as follows:
M.S. Degree plus 0 semester hours and 18 years experience (including the 1967-68 school year) x9/9........$8004.00”

If given credit for the same years experience, namely, 18 years, Hard-way, under the revised salary schedule of August 21, 1967, would have received $8,728. The plaintiffs contended that they were entitled to such increases based upon their years of service and the school board should give credit for the years of experience in teaching in other school districts. The trial court entered judgment in favor of the plaintiffs.

In its opinion the trial court found that although plaintiffs received the amount specified in the original notice of April 17, 1967, and although they were paid amounts in excess of the minimum salary provided in Section 22-8 of the School Code, the action of the board in refusing to grant credit for years of experience in teaching in school districts other than the Lawrenceville District was arbitrary and discriminatory. The court noted that the language of the amendment “based upon experience in a school district” is capable of being interpreted to mean that credit should be given for years of teaching in any Illinois school district or interpreted to mean that credit should be given only for years of teaching in the school district in which teachers are presently employed.

On August 17, 1968, the Legislature again amended Section 24-8 of the School Code. The statute was amended by deleting the words “based upon experience in a school district” and replacing them with “based upon previous public school experience.” The trial court’s opinion stated that it viewed this amendment as a clarification of the legislature’s original intention.

The appellant contends that the plain, simple language of the 1967 enactment leaves no room for any interpretation as to the legislature’s meaning. Rather, the Board of Education contends that the replacing of the words “experience in a school district” by “previous public school experience” indicates a major change in the Act. In its brief the board quotes the opinion rendered by the Office of the Superintendent of Public Education.

We concur in the decision of the trial court. It is the cardinal rule in construction of statutes that a statute must be construed so as to ascertain and give effect to the intention of the general assembly as expressed in the statute. (Gregory v. County of La Salle, 91 Ill.App.2d 290, 234 N.E.2d 66.) The Illinois courts have held that although construction of statutes by the executive or administrative branch of government are not binding, such construction should be and is persuasive. (Strat-O-Seal Manufacturing v. Scott, 72 Ill.App.2d 480, 218 N.E.2d 227.) However, subsequent to the interpretation of the statute by the Office of the Superintendent of Public Instruction, the legislature amended the statute in May of 1968. The Board of Education contends that this change was not a clarification but was a major change in policy. However, it is noted that the legislature in its amendment of August 1968 did not change the effective date of the provisions, July 1, 1967, although the amendment was enacted more than one year after the effective date. If the legislature did intend a major change in policy, then it would seem that the effective date for such a change would be at the present or some future date. The only change in the amendment was replacing the phrase “experience in a school district” with the phrase “previous public school experience.” We believe the trial court properly construed the later amendment as a clarification of the legislature’s original intention.

The Board of Education also contends that there was no evidence of arbitrary or discriminatory action on its part and therefore the trial court must be reversed. A school board has discretionary control over the salaries of its teachers subject only to any limits expressly fixed by the School Code and to constitutional prohibitions against actions that are arbitrary, discriminatory and unreasonable. (Richards v. Board of Education, 21 Ill.2d 104, 171 N.E.2d 37.) In view of our finding that the board did not comply with the provisions of the School Code by refusing to allow credit for teaching experience acquired outside of its district, it is unnecessary to consider the issue of whether its action was arbitrary or discriminatory.

The judgment of the trial court is affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and CREES, J., concur.


author: Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leonard A. Mason, Defendant-Appellant.
    (No. 70-127;
    Fifth District
    September 16, 1971.

      Paul Bradley, of Defender Project, of Mt. Vernon, for appellant.
    Peyton Berbling, State’s Attorney, of Cairo, for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant was convicted in a bench trial for possession of less than 2.5 grams of marijuana and was placed on probation for one year and fined $250.00 plus costs of suit. The question presented is whether the defendant was properly found guilty where the chief evidence was a marijuana cigarette which was found on his person in a search following his arrest. A motion was made by the defendant to suppress this evidence. By stipulation the evidence heard on the motion was the evidence on guilt or innocence.

The chief of police of the City of Cairo received a telephone call from an unnamed person, the owner of a filling station who was, in the opinion of the police chief, a reliable informer because this person had previously given information to other officers of the police department. The chief had never before acted on any information received from this person. The information received from this person was that the defendant and another “might have narcotics on them.” The chief of police found the defendant and another person driving an automobile on Washington Avenue in the City of Cairo and arrested them for “suspicion of possession of narcotics.” The subsequent search took place in the police squad room.

Only the chief of police testified at the hearing and the foregoing is all of the relevant evidence.

The question raised by the defendant is whether there was probable cause for the arrest of the defendant and, therefore, for the subsequent search of his person.

Generally, there is no substantial question but that a warrantless search of the person of an individual who is properly under arrest which provides evidence tending to support the commission of the crime for which the person was arrested is reasonable. The preliminary inquiry is whether there exists any probable cause for the arrest. The constitutional prohibition being against unreasonable searches and seizures, no immunity from search is given on the occasion of a lawful arrest. People v. Clark, 9 Ill.2d 400, 137 N.E.2d 820; Harris v. United States, 331 U.S. 145, 91 L.Ed. 1399.

The question presented, therefore, is whether the arrest was lawful. More particularly, the question is whether the arresting officer (the chief of police) had any reasonable ground for believing that the defendant had committed the criminal offense of possession of marijuana prior to the arrest.

Probable cause for arrest and search can present a very complicated and intricate problem. The circumstances shown by the evidence here so clearly fail to meet the test of reasonableness that it is not necessary to analyze the rule.

In this instance the arresting officer had “information that the two defendants might have narcotics on them,” and apparently was informed that the defendant and the driver of the car were at some general location in Caño.

Probable cause or reasonable cause for arrest may be supplied by information from informants where it is reasonable for the arresting officer to rely on this information, (People v. Hoffman, 45 Ill.2d 221, 258 N.E.2d 326.) The information referred to means factual information. It is not necessary to discuss what are facts for this purpose since the “information” relied upon here was only a conclusionary possibility and in no sense a fact. If the arresting officer had any information on which he relied, it was not revealed by the testimony. In the absence of reasonable facts there was no reasonable or probable cause for the arrest so that the arrest was unlawful and the search was therefore illegal. See Illinois Code of Criminal Procedure, section 107 — 2(c) (grounds for a proper arrest), Section 108.1 (lawful arrest as basis for search), Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 Sup. Ct. 1509; and Preston v. United States, 370 U.S. 364, 11 L.Ed.2d 777, 84 Sup. Ct. 881.

The lawfulness of the arrest depends upon the justification for the arrest at the time it was made and the discovery of narcotics upon search after the arrest does not relate back to operate as a justification for the arrest. (People v. Galloway, 7 Ill.2d 527, 131 N.E.2d 474; and People v. Roebuck, 25 Ill.2d 108, 183 N.E.2d 166.)

Since the essential question is one of an unreasonable search and seizure and the only basis on which the defendant was arrested was a possibility or a suspicion which was reported to the arresting officer by a person whose reliability was in no way proved, the search is, on the face of the matter, unreasonable, and it is not essential to establish that the arrest was unlawful, but under the facts set forth in this case the arrest also was illegal. The evidence of the marijuana cigarette should have been suppressed, and since there was no other evidence capable of supporting a conviction, the judgment of the trial court must be reversed.

Judgment reversed.

EBERSPACHER and MORAN, JJ., concur.


author: Mr. JUSTICE CREES

text:
    The People of the State of Illinois, Appellee, v. Ronald E. Chamness, Appellant.
    (No. 70-63;
    Fifth District
    September 22, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, (Theodore A. Gottfried and Bruce Stratton, of counsel,) for appellant.
    Don P. Koeneman, State’s Attorney, of Chester, (D. McMeekin Conn, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE CREES

delivered the opinion of the court:

Defendant, Ronald E. Chamness, and two other prisoners, were jointly indicted in three counts for escape from Illinois State Penitentiary at Menard, theft, and armed robbery. After accepting pleas of guilty to escape the circuit court of Randolph County sentenced each of them to like terms in the penitentiary of not less than three nor more than five years, and the other two counts were dismissed. Defendant Chamness has appealed here contending that his sentence was excessive and that the trial court erred in denying his motion to withdraw his guilty plea.

From the record it appears that on February 23, 1970, defendant and his two companions, armed with a knife, overcame two prison guards, took their watches, $80 from their pockets, and the complete uniform of one and the uniform coat of another. They then stole a pick-up truck and left the prison grounds. The following day defendant was apprehended. In the ensuing weeks defendant appeared in court on six different occasions when a number of his motions were heard and denied. Finally, on May 8, 1970, accompanied by his attorney, defendant withdrew his motion for a competency hearing and, at his request, his guilty plea was accepted after a full admonishment from the court. Sentencing was postponed until May 14, and it was at this time that defendant asked for and was refused permission to withdraw his plea.

Defendant makes no contention that he was not fully admonished as to his constitutional rights, or that he did not knowingly and intelligently enter his plea. Rather he argues, as he did before the trial court, that he was pressured to plead guilty by the court and by prison authorities, and that he was not guilty of escape because when he left the prison his sentence was up. No evidence whatsoever was offered or even mentioned as to the supposed pressure exerted by the prison authorities, and his charge against the court is wholly belied by the record. In the many hearings before the court defendant was treated with courtesy and understanding. The judge acted with great restraint under circumstances when a less patient man might have been provoked. We find such charges without merit. Likewise, his contention as to the expiration of his prior two to six year sentence for robbery is ill-taken, for the pursuit of judicial process, and not escape, is the proper remedy for one who believes himself unlawfully held in custody. (People v. Hill, 17 Ill.2d 112.) Moreover, the record clearly shows that defendant’s prior sentence did not expire until May 14, 1970, approximately three months after his escape, and defendant was aware of this fact as he specifically acknowledged it on two different occasions in previous hearings before the court.

In a number of recent cases we have had occasion to consider the standards governing review of a trial court’s denial of a request to withdraw a guilty plea. Permission to do so rests in the sound discretion of the trial court, to be granted not as a matter of right but rather as necessary to correct a manifest injustice. (See People v. Walston, 38 Ill.2d 39; People v. McNair (Agenda 71-25) (Ill.App.2d); People v. Christman, 128 Ill.App.2d 232.) Under the circumstances present here we can conceive of no defense worthy of consideration by a jury nor any reason why the ends of justice would be better served by allowing defendant to withdraw his plea. We therefore find that the trial court did not err in denying defendants request.

Next, defendant contends that his sentence is excessive and he asks that it be reduced on review. It has been frequently held that substantial reasons for reducing a sentence must be shown and that the burden rests upon a defendant to prove such mitigating circumstances as will warrant a reduction. (People v. Taylor, 33 Ill.2d 417; People v. Lampley (Agenda 70-162) (Ill.App.2d); People v. Dodd, (Agenda 71058) (Ill.App.2d); People v. Ledferd, 94 Ill.App.2d 74.) Here defendant received the same sentence as his companions in the escape and no specific facts are presented to distinguish his position from theirs. Some argument is made that because a psychiatrist’s report described defendant as a mild to borderline case of mental retardation, having poor judgment and a susceptibility to being led by others, it may be concluded that the other two escapees, and not defendant, were the instigators of the escape, and that defendant played only a passive role in the incident. Such a conclusion is unsupported and unwarranted from the facts. Defendant showed himself in court to be quite knowledgeable in legal matters and of all circumstances surrounding the escape. That he now claims to have merely “walked away” because he believed his time was up is pure fiction, contrary to previous admissions on his part. Having taken part in an escape from prison by force with its attendant dangerous possibilities both to prison guards and other prisoners we can see no justification for reducing the sentence imposed by the trial court.

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

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Eugene Dunbar, Defendant-Appellant.
    (No. 70-235;
    Second District
    July 29, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, and E. Roger Horsley, of Defender Project, of Elgin, for appellant.

      John B. Roe, State’s Attorney, of Oregon, and William B. Scott, Attorney General, of Springfield, (Alan Cargerman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

After a trial by jury in the circuit court of Ogle County, Robert Eugene Dunbar was found guilty of the offense of indecent liberties with a child, and was sentenced to a term of six to ten years. The issues before this court are whether the defendant was denied the effective assistance of counsel and whether he was proved guilty beyond a reasonable doubt.

The complaining witnesses were two girls, Judy Cryer and Ethel Perdue, who were 11 and 12 years old, respectively, at the time of the incident and lived at the Nachusa Lutheran Home for Children. The testimony of the two girls was that they rode into Dixon, Illinois, in a school bus on September 19, 1969, but instead of going to school they skipped school that day. They were walking in Page Park, which adjoins the high school, and soon after 11:00 A.M. the defendant drove up in his car, accompanied by a John Fischer. The defendant got out of his car, told the girls they should be in school, and after showing them a badge, told them they would have to come to headquarters. He ordered them into his car, which had a police radio and two large antennae. The girls thought the defendant was a policeman. Judy got in the back seat with Fischer, while Ethel rode in front with the defendant. The defendant drove out into the country to an unmarked building, where he had the girls get out of the car. He unlocked the door to the building which was a one-room clubhouse of a motorcycle club, and they went inside the building. Thereupon tire defendant told the girls he would have to search them, and he ran his hands over both of their bodies, front and back. Thereafter, he went outside the building with Fischer for a short period of time. Upon returning, the defendant ordered the girls to take off their clothes. Although they objected, they did disrobe after being ordered to do so. After the girls had disrobed, the defendant ordered Judy to sit with Fischer, while he stayed with Ethel. The testimony of the girls is that the defendant laid on top of Ethel and tried to molest her sexually. Later Judy sat on the defendant’s lap and he touched her privates. After approximately one half-hour from the time of entering the building, the defendant told the girls to put their clothes on, and the four of them drove back to Page Park. Judy got out of the car, but Ethel asked her to get back into the car as they were all going for hamburgers. After going to a drive-in restaurant, they returned to Page Park. The defendant and Fischer left, and the girls, after waiting for the school bus, rode home on the bus and arrived there about 4:15 P.M. They told a friend about the incident, and she told a Mrs. Chubb, their supervisor. The incident was reported to the police, and the girls accompanied and directed the police to the building and later identified the defendant from a lineup.

The defendant testified that he had never seen the complaining witnesses before; that he worked on his motorcycle in the morning of September 19, 1969; had lunch and thereafter sat down by the river and read until he punched in for work between 3:15 and 3:20 P.M. This alibi testimony as to what the defendant did prior to going to work that afternoon is uncorroborated.

The defendant, in his argument that he was denied the effective assistance of counsel, states that his trial counsel, a public defender, failed to object to many leading questions; failed to impeach Fischer, who was a State witness, by his grand jmy testimony; and failed to request instructions regarding the accomplice testimony of Fischer and the alibi defense.

It appears that the public defender filed a pre-trial motion for psychiatric examination which was made, and the psychiatric opinion was that the defendant was able to understand the nature of the charges against him and to cooperate in his defense. The public defender also filed a pretrial motion requesting that the State’s Attorney produce a list of witnesses, a copy of the minutes of the grand jmy, and a copy of any alleged statements or confessions. This motion was granted. The girls apparently never made any statements to the police or State’s Attorney, but the defense did secure the testimony which Fischer, the accomplice, had given before the grand jury. The public defender was faced with the situation of two young girls who described the incident to the jury clearly and without hesitation. The public defender made several objections to leading questions, but apparently as a matter of strategy conducted the defense by drawing out inconsistencies in their testimony without taking the risk of emphasizing the testimony as to the indecent liberties by numerous objections. Also, he was relying upon convincing the jmy that the defendant had punched in for work at 3:23 P.M. so that he could not have been present at the time and place the crime supposedly occurred.

As to the matter of attempting to impeach Fischer’s testimony by means of the grand jury transcript, the girls had already testified to the same material facts that Fischer testified to, and as previously stated, the defense was an alibi.

With regard to the claim that the defendant was denied the effective assistance of counsel because of the public defender’s failure to tender certain instructions, the State had tendered and the court had given the standard Illinois pattern jury instructions applicable to this type of case, including an instruction on “interest, bias or prejudice” of a witness as effecting his credibility. It appears that the public defender had essentially the same set of instructions prepared but did not tender them because they already were tendered by the State’s Attorney. It cannot be said that the public defender incompetently represented the defendant because he did not tender a special accomplice instruction. Cf. People v. Werhollick, 101 Ill.App.2d 353, 360.

Although complaint is made that no instruction is given on the issue of alibi, in view of the factual situation that developed, it is quite possible that the public defender did not want to tender the standard instruction on the issue of alibi. It is also contended that the fact the public defender did not offer evidence to supplement the probation officer’s report at the hearing on aggravation and mitigation demonstrated the incompetency of defense counsel. That report seemed to be fairly complete, and there is no indication that the public defender could have offered some facts in mitigation which he did not. In People v. Alexander, 45 Ill.2d 53, in deciding that incompetency of counsel was not established under the circumstances present therein, it is stated at page 56:

“In support of his argument that he was denied the effective assistance of counsel at his trial, the defendant relies upon the fact that his trial counsel failed to file any pretrial motions in his behalf, that he did not request a list of witnesses, that he was totally unprepared to confront and cross-examine the State’s witnesses, that he failed to request witnesses’ prior statements either in the form of police reports or grand jury testimony, and that he failed to inquire whether the arresting officers had informed the defendant of his constitutional rights. We have examined these contentions in light of the entire record in the case, and we are unable to agree that the defendant was incompetently represented.”

Here the public defender presented pre-trial motions, cross-examined witnesses and did many things, the omission of which was held not to show incompetency in light of the entire record in the Alexander case. A review of the record herein clearly establishes that the public defender very diligently and adequately represented the defendant in view of the factual situation he was confronted with and made an impressive argument to the jury. The defendant was not denied his constitutional right to the effective assistance of counsel. (People v. Alexander, supra; People v. Washington, 41 Ill.2d 16, 21-22), and substantial prejudice to idle defendant was not shown by the type of representation he received. People v. Bernette, 45 Ill.2d 227, 233-234; People v. Morris, 3 Ill.2d 437, 445.

We next turn to the contention that the defendant was not proved guilty beyond a reasonable doubt. Defendant states that the testimony of the complaining witnesses is a fabrication; that there were many inconsistencies in the testimony of Judy, Ethel and Fischer as they relate to each other; that under the circumstances the girls could have escaped had they tried when they went for hamburgers; and that the girls made no outcry or complaint either at the drive-in or to the bus driver on their way home. Nevertheless, it is for the jury to determine the credibility of the witnesses, and the inconsistencies in the testimony of the various witnesses do not appear to be as to material elements of the crime. The lack of outcry as noted, or attempt to escape under the circumstances here present, are to be considered by the jury but do not require a verdict of “not guilty.”

Defendant also contends that there was a lack of the required corroboration necessary in this type of case. It is well established that where conviction of the crime of indecent liberties rests upon the testimony of a child, the evidence must be corroborated or must otherwise be clear and convincing. (People v. Ulrich, 30 Ill.2d 94, 98; People v. Glugla, (Ill.App.2d), Appellate Court, 2d District, No. 70-152.) The testimony of the two girls appears to be clear and convincing, and there is also substantial corroboration of their testimony despite minor inconsistencies in their testimony and that of Fischer.

Defendant’s alibi can only be substantiated after 3:23 P.M. of the day in question for that is the time when a Mr. Wilkenson, who is in charge of time cards at Henry Pratt Corporation, testified that the defendant punched in on a time card. The testimony of the other witnesses as to when they returned to Page Park for the last time is not positive and exact and, therefore, does not negate the conclusion that the incidents did happen prior to the defendant checking in for work.

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

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


author: Mr. JUSTICE DIXON

text:
    The Department of Business and Economic Development, etc., Plaintiff-Appellee, v. Roger E. Schoppe et al., Defendants-Appellants.
    (No. 70-253;
    Second District
    August 2, 1971.

      Corrigan, McKay, Quetsch & O’Reilly, John R. Mackay, and Edward Graham, all of Wheaton, for appellants.
    William J. Scott, Attorney General, of Springfield, (Frank S. Righeimer, Assistant Attorney General, of counsel,) for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The Department of Business and Economic Development filed a petition on December 24, 1968, in the circuit court of DuPage County to condemn designated portions of farm land owned by appellants for the operation of a BEV Particle Accelerator by the United States Atomic Energy Commission. Under the quick-take provisions of the Eminent Domain Act, plaintiff’s became vested with fee simple title after the court made a preliminary finding of just compensation in the following amounts: Gebhardt, $51,750.00; Schoppe, $114,500.00; Geise, $260,000.00.

On March 4, 1970, the cause went to trial before a jury, which returned verdicts awarding appellants the following: Gebhardt, $50,298.57; Schoppe, $102,414.78; Giese, $245,566.08. Judgment was entered on tire verdicts and post trial motions to set aside the verdicts and grant a new trial were denied. This appeal results.

The land taken from the Gebhardt farm consisted of 20.699 acres out of a total holding of 116 acres. The northern boundary of the farm was on Roosevelt Road, and the part being taken was south of the C.B. & Q. track which runs through the south half of the tract. The jury awarded $50,298.57 for the part taken. The testimony of the valuation witnesses for this parcel ranged from a low of $41,000.00 to a high of $103,000.00.

That part of the Schoppe farm taken consisted of 42.146 acres out of a total holding of 116.76 acres. All witnesses agreed an additional 7.488 acres south of the C.B. & Q. track not taken was damaged. The valuations placed on the part taken by the witnesses varied from $84,300.00 to $275,730.00 and the damage to the remainder from a low of $4,300.00 to a high of $17,500.00. For that part taken, the jury awarded $102,414.78. Their verdict for damages to the 7.488 acres was $7,480.00.

The total 100 acres of Giese’s parcel was taken. Valuations by witnesses ranged from a low of $230,000.00 to a high of $400,000.00. The jury awarded $245,566.08.

On appeal, the owners first urge that plaintiff’s counsel misused the voir dire examination making it impossible for defendants to have a fair and impartial jury and defendants also contend plaintiff’s counsel injected prejudicial error into the opening statement making it impossible for defendants to receive a fair trial.

Regarding the voir dire examination: the following four questions were asked the veniremen which are claimed by defendants to be prejudicial, but at the time of questioning there was no objection. (1) “The Court: If I were to ask you all of the questions that were asked of the other prospective jurors, would your answers be substantially the same as those who have been accepted for service?” (2) “The Court: Do you understand that in a criminal case it is necessary that the defendant be proven guilty beyond a reasonable doubt, whereas in matters of this kind, in a civil matter, it is the preponderance or the greater weight of the evidence which applies. Do you understand that?” (3) Question 3 was asked by defendants’ attorney, Mr. Valentine: “And you would have no hesitancy in following the law as given to you by his Honor, Judge Locke, if you are selected as a juror here, would you, sir?” (4) Question 4 was asked by petitioner’s attorney, Mr. Righeimer: “And you understand that the State is going to testify to a substantial amount of his property and we expect to pay a substantial amount, but we don’t have to pay one cent more than is actually fair, and all four of you, I hope, feel that you can give a fair verdict in this case; is that right?”

Regarding the opening statement: During the opening statement by petitioner’s counsel, Mr. Righeimer, counsel for defendants made a motion for a mis-trial because of Mr. Righeimer’s following statement:

“And I expect that that evidence will show that whereas farm land would be valued considerably less, that the market value of this property as established by sales of similar property in the area is from $2,200 to $3,000 an acre.
Now, that will be established by the testimony of appraisers who know the area, and we expect the evidence to show that those values close to them were also established by the first appraiser that these defendants hired to appraise this property and whose appraisals they have rejected. And they have gone out to get other appraisers who appraised the property higher, but the first man they hired, his appraisals, and this is
Mr. Valentine: I will object at this point
Mr. Righeimer: * * * in the area the evidence will show are substantially what our appraisals are.
And that will be the evidence in the case as far as we are concerned.
Thank you.”

Appellants further urge that it was error to allow Jay T. Fitts, who was engaged by defendants to appraise the premises in question and then dismissed, to testify as an expert in behalf of the petitioners.

Since the jury in a condemnation suit is called only for the purpose of finding values and fixing damages, these issues cannot be broadened nor the jury influenced upon voir dire by immaterial matters calculated to be prejudicial. On voir dire, an attorney has the right to malee such reasonable inquiry as will intelligently permit him to exercise his right to peremptory challenge, but an abuse of that right will warrant a new trial. City of Quincy v. Best Supply Co. (1959), 17 Ill.2d 570, 162 N.E.2d 373.

The record before us does not disclose an objection to the questioning of the venire by the judge or by counsel for petitioner. Furthermore, it was admitted in appellants’ brief, at page 11, that “the defendants’ attorney raised no objection to the asking or answering of any or these questions posed by the trial judge or Mr. Righeimer.” Since defendants never raised an objection to petitioner’s questions or statements of the venire, nor requested that counsel be warned by the court in his questioning, this failure to object will be regarded as a waiver of the objection and defendants will not be heard to raise the question for the first time on appeal.

Regarding defendants’ second point, we have referred to the record and we find counsel for defense objected only once during opening statements and no objections were raised during closing statements. The general rule in Illinois is a Court of Review will not consider assignments of error unless a timely objection has been made and the trial court afforded an opportunity to rule upon the issue. (Forest Preserve District v. Kercher (1946), 394 Ill. 11, 66 N.E.2d 873; Forest Preserve District v. Krol (1957), 12 Ill.2d 139, 145 N.E.2d 599.) Our Supreme Court, however, has held a reviewing court may hear arguments for the first time even though no objection was made and no ruling was made or preserved at the trial level if the arguments were so prejudicial that a party litigant could not receive a fair trial. Belfield v. Coop (1956), 8 Ill.2d 293, 134 N.E.2d 249.

We have examined defendants’ authority on this point, Belfield v. Coop, supra, and find it clearly distinguishable. In Belfield, the defendants were characterized during the argument as “thieves,” “usurpers,” and “defrauders.” It is clear from these remarks that plaintiffs attorney intended to inspire the passion and prejudices of the jury. Examining the record in the light of Belfield guidelines, we could not find any remarks by plaintiff’s counsel intending to inspire the passion and prejudices of the jury. For this reason, we find no merit in defendants’ contention that the opening and closing statements of plaintiff’s counsel made it a practical impossibility for defendants to receive a fair trial.

Finally, appellants claim the testimony of Jay T. Fitts was prejudicial to then- case. Mr. Jay T. Fitts was employed by the defendants to appraise their property, but before the hearing, was dismissed. Mr. Fitts was subpoened by the petitioner and at trial gave his opinion to the value of the Gebhardt and Giese land.

The rule in Illinois governing testimony of experts formerly employed by one party and then asked to give testimony for the opposing party was stated in People of the State of Illinois v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208 at 200:

“A witness is not the property of either party to a suit and simply because one party may have conferred with a witness and even paid him for his expert advice does not render him incompetent to testify for the other party.”

The question of whether petitioner could have specifically brought out that Fitts was first employed by appellants has not been decided in Illinois. But we have examined the authorities cited by defendants (Department of Public Works and Buildings v. First National Bank (1965), 61 Ill.App.2d 78, 209 N.E.2d 21; State Highway Commission v. Earl (1966), 143 N.W.2d 88; Texas v. Biggers (1962), 360 S.W.2d 516); and find them clearly distinguishable. In First National Bank, the witness brought out in examination that he had been appointed by the trial Court to appraise the property at the earlier hearing.

In the Earl and Biggers cases, one party was specifically trying to bring out on examination that an expert witness was formerly employed by the opposing party. Both reviewing courts held the fact of prior employment by the opposite party was not relevant or material to the issues to be decided.

In the case at Bar, petitioner would have been deprived of the pleasure of introducing the witness, Mr. Fitts, as a former appraiser of appellants because such would have no relevancy to the issues to be decided. But petitioner would not have been deprived from using Fitts as an otherwise qualified witness.

Since petitioner introduced Mr. Fitts as a qualified appraiser and not as a former appraiser of appellants, there was nothing prejudicial to appellants in the presentation of the testimony of Mr. Fitts. For these reasons, we conclude the judgment of the circuit court will be affirmed in all respects.

Judgment affirmed.

ABRAHAMSON and PAGE, JJ„ concur.