author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sidney Bickham, Defendant-Appellant.
    (No. 72-12;
    Fifth District —
    August 29, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Michael A. Schmitt, Senior Law Student, of counsel,) for appellant.
    Don P. Koeneman, State’s Attorney, of Chester, for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the Circuit Court of Randolph County finding him guilty of the crime of murder after his plea of guilty to that charge.

Defendant contends that the trial court erred in accepting his guilty plea without first determining whether he was competent to stand trial.

The record discloses that the defendant, a prison inmate, had been given a knife for the purpose of cutting some bacon while working in the inmates kitchen, and without any discernable motive, wrapped the knife inside a towel, walked into the dining room and began to stab and slash three other inmates of the penitentiary, killing one of them and seriously wounding the other two.

Immediately prior to trial, the defendant’s attorney presented a number of motions, including a petition to appoint medical experts to determine the sanity of the defendant. In explaining his petition, which was opposed by his client, the defense attorney stated:

“Your Honor, on November 3 I went to the penitentiary and interviewed numerous witnesses whose names were furnished to me by the State on apparently a week and one-half before that. I don’t have the exact date. In interviewing these State witnesses I made a tally at the end of the interview and over two-thirds of them commented based on their past experience in living with Mr. Bickham at the penitentiary for quite some time, they felt he was sick in the head, crazy and so forth, especially at the time of the offense. Petitioner has informed me, I mean the accused has informed me one of the defense witnesses the accused always felt someone was out to get him. On October 14 I was down at the penitentiary to visit with the defendant. He attacked another inmate who was much smaller in size, walking with another guard, in the presence of at least four or five other guards in the visitors’ center. In my presence he attacked this smaller inmate who was merely walking by with another guard. On being questioned by me shortly thereafter why he attacked the inmate, the defendant stated he had his hands in his pockets and looked at me like he was going to do something to me. Now, after I talked to the State’s witnesses and then I thought of this incident and then I looked at the Indictment and what the allegations are and some of the statements from other State’s witnesses as to what transpired here, after consulting with another attorney who visited with me on several occasions down at the penitentiary to interview these witnesses, I feel that it’s absolutely necessary that the accused have a medical expert examine him to determine his sanity. I make my judgment on the basis of what I have said and what I have seen and I would not like to proceed to trial without having a medical expert examine him first.”

The petition was argued and denied. A short time thereafter, the defense attorney presented substantially the same motion and attempted to clarify his position that he needed time to have the defendant examined, no matter who was going to pay for it. The State’s Attorney seemed to acquiesce, stating:

“I think if we go through all this again, if we continue this definitely until December 13, give them a date to have the man examined by any psychiatrist, but that there be no misunderstanding there will be no more dilatory tactics to preclude this case going to trial December 13.”

However, the court again denied the petition. Shortly thereafter, the defendant indicated that he wished to address the court. The following transpired:

“Defendant Bickham: I would like to know can I get me some lawyers that are going to defend my case. I don’t think these two cats, these two lawyers are defending my case. Lot of motions were filed that give these lawyers some—
By the Court: You mean some ideas?
Defendant Bickham: I would like a black attorney that would defend me from some NWACP [sic], some association and I don’t think they did a very good job on my case, you know, and I could use a convict lawyer to get a lot of this stuff done to help me out.
By the Court: You are making a motion that they be removed?
Defendant Bickham: Yes, sir.
By the Court: And they be substituted by a black lawyer to defend your case?
Defendant Bickham: Yes.
By the Court: Motion be denied.
Mr. Sachtleben: Your Honor, in view of that statement, I wish to say to the Court that this does come as a surprise to us and I want to caH to the Court’s attention something that went into the record no more than fifteen minutes ago where the accused said he was completely satisfied with our representation. I think this goes to show the fact once more that we need a psychiatric examination. I only want to caH it to the Court’s attention.”

The motion for removal of his attorney was denied. The next day the defendant filed a motion for leave to file an interlocutory appeal. This motion was denied and the impaneling of the jury was commenced. Shortly thereafter, the defendant’s attorney informed the court that the defendant wished to enter a plea of guilty in accordance with an agreement worked out with the State’s Attorney. The court indicated that it was wiHing to concur in the negotiated plea and proceeded to accept that plea in conformity with Supreme Court Rule 402.

The Illinois Supreme Court has laid down the standard to be applied in such situations in the case of People v. Shrake, 25 Ill.2d 141, at 143:

” * [W]e have further held that if, before or during trial, facts are brought to the attention of the court, either from its own observation or by suggestion of counsel, which raise a bona ficle doubt as to a defendant’s present sanity, it becomes the duty of the court not to proceed until a jury has been empaneled and the doubt removed by a sanity hearing.”

Here, unlike most of the cases dealing with such an issue (see, e.g., People v. Plecko, 46 Ill.2d 301; People v. Sephus, 46 Ill.2d 130), there was absolutely no professional opinion upon which to base a judgment as to the defendant’s present sanity. The only basis upon which the trial judge could have made his decision was the behavior of the defendant during the course of the proceedings.

In our opinion, the facts and law in this case are almost identical to those of Pate v. Robinson, 383 U.S. 375, 15 L.Ed.2d 815, 86 S. Ct. 836, wherein the Court said at 385-86:

“* * * Where the evidence raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial, the judge on his own motion must impanel a jury and conduct a sanity hearing pursuant to Ill. Rev. Stat, c 38, § 104 — 2 (1963). [Citation.] The Supreme Court of Illinois held that the evidence here was not sufficient to require a hearing in light of the mental alertness and understanding displayed in Robinson’s ‘colloquies’ with the trial judge. * * * But this reasoning offers no justification for ignoring the unconstradicted testimony of Robinson’s history of pronounced irrational behavior. While Robinson’s demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue. [Citation.]”

In our opinion, the trial court erred in failing to order a competency hearing under the facts presented in this case.

For the foregoing reasons the judgment of the Circuit Court of Randolph County is reversed and the cause is remanded with' directions that the plea be stricken and for further proceedings consistent with this opinion.

Reversed and remanded.

EBERSPACHER, P. J., and CREBS, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE GUILD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger L. Woods, Defendant-Appellant.
    (No. 71-316;
    Second District —
    May 25, 1973.

      Supplemental opinion filed October 3,1973 upon rehearing.

      Sheldon Schapiro and Sol Kalena, both of Evanston, and Gerald Eisen, of Chicago, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

On May 9, 1970, the defendant was charged in a two count indictment with having committed the offense of indecent liberties with a child and attempt rape. The cause was tried by a jury and he was found not guilty of attempt rape but guilty of indecent liberties. Defendant applied for and the trial court granted probation for a period of five years, the first year to be served in the state prison farm at Vandalia, Illinois. The defendant has appealed and has alleged several grounds for reversal.

On May 23, 1970, at approximately 10:15 P.M. the defendant was arrested in Evanston, Illinois, by Evanston policemen upon a charge of rape, in which the motor vehicle of the defendant, a Buick Riviera, license # LG 9704, was involved earlier in the evening. He was taken to the Evanston police station, and his car subsequently searched. A revolver was found in the console between the two front seats and certain route cards were seized from the trunk of the car. The next day, on May 24, 1970, Marirose Brown, the complaining witness in the instant case, was driven by the Bensenville police to the Evanston police station. A lineup was had of four men including the defendant. Defendant’s private counsel was present. The complaining witness identified the defendant as the man who had committed the offenses against her in Bensenville, Illinois, on May 9, 1970.

The complaining witness testified that as she was walking to the shopping center in Bensenville, the defendant drove up in a blue car with a black top and asked her where a certain road was. He drove by again and asked her if she wanted a ride. She refused, kept on walking, he drove alongside her, opened the door; she testified she thought she saw a gun, and he told her to get in the car. Defendant then drove on and she asked to be let out. He continued to drive around the Bensenville area. She testified that he drove to the rear of the stores in the shopping center and parked his car by the garbage can. Defendant locked the doors with an electric button and engaged the complaining witness in general conversation. He asked her to have intercourse or commit deviate sexual acts with him which she refused. He then grabbed her by the right breast and placed his hand between her legs in the region of her vagina. She slapped him and purportedly struggled. He allegedly placed a gun in her side, she screamed and was able to open the door and get out of the car. She then went into the shopping center where she met a girl friend and complained to her about what had happened. Shortly thereafter, her parents drove her to the Bensenville police station where she made a statement to the police which was reduced to writing.

The first contention of the defendant is that he was not proven guilty beyond a reasonable doubt. In support of that contention he alleges that the testimony of the complaining witness as to the incident in question was not clear and convincing; that she suffered no injury, her clothes were not torn and she did not lose her earrings. Defendant further points out that she was not taken to a doctor. In this regard there is no allegation that the complaining witness was injured or that any penetration had been made into her vagina. It is obvious that a doctors examination was not necessary for any purpose. Defendant points out that as they were driving around the Bensenville area she had an opportunity to exit the car but did not do so. The defense pointed out upon cross examination of the complaining witness in her testimony at the trial, that in her statement to the police she did not mention a gun.

Among other alleged discrepancies in testimony urged by the defense was the identification of the car in question; that at the time of her complaint she stated the car was a dark blue automobile with a black top, bucket seats and a console between the two front seats. She was not able to positively identify the make of the car but thought it was a Mercury. The car the defendant was driving at the time of his arrest in Evanston was a Buick Riviera, a dark blue car with a black vinyl top, bucket seats and a console between the two front seats. Defendant states that it is unlikely that he v/ould attempt to have sexual relations “in a National parking lot on Saturday afternoon.” He neglects to mention the fact that the car was parked beside a garbage container at the rear of one of the buildings in the shopping area where the general public ordinarily does not park.

It is true that there are discrepancies in the complaining witness’ description of the vehicle and some minor discrepancies as to her description of the defendant, but it is to be expressly noted that two weeks later at the Evanston police station lineup she immediately identified the defendant as the man who had committed the assault upon her on May 9, 1970. The lineup appears to have been properly conducted, defendant’s counsel was present, and the complaining witness positively identified the defendant in the court room as the one who had committed the assault upon her in broad daylight.

The defendant next contends the complaining witness committed perjury. In her testimony at the trial in support thereof he raises the issue of the exact time of the occurrence. The original statement given to the Bensenville police stated the occurrence to have been about 2:20 P.M. After the arrest of the defendant in Evanston the complaining witness signed a statement in which the time is stated to have been at 2:00 o’clock. Defendant points out that the complaining witness in her testimony stated she noticed the time on a clock at the shopping center which read 2:54 before defendant appeared and that she exited the car between 3:00 and 3:30 P.M. On the basis that she alleged the occurrence to have been at 2:00 o’clock in her signed complaint defendant contends that this is a perjured statement. While various times are mentioned, it is to be remembered that the complaining witness was a fourteen year old girl who undoubtedly was under great stress at the time of the incident, and this court does not believe that this constituted perjury.

In People v. Strother (1972), 53 Ill.2d 95, 100-101, 290 N.E.2d 201, 204, the court stated:

“Minor discrepancies in testimony taken at two different times do not establish perjury nor destroy the credibility of the witness but only go to the weight of the testimony. [Citation.]”

The discrepancies in the time varying from 2:00 P.M. to 3:30 P.M. were brought out in great detail by the defense before the jury and was an issue considered by them.

The next alleged error complained of by the defendant pertains to his arrest in Evanston. There is no question but that the identification of the defendant in the Evanston police station lineup was a necessaiy element of proof. Many conferences were held in chambers in which the trial judge assiduously admonished counsel that the reason for the arrest in Evanston was to be kept from the jury. Examination of the record discloses that this was accomplished even though at one time it was necessary for the court to admonish defense counsel that he was indirectly putting this into evidence. There is no argument that it is highly improper and prejudicial to introduce evidence of a similar or prior crime. That is not the case before us. The identification of defendant by the complaining witness in Evanston, the description of the car and the gun found by the Evanston police, were of probative value for the instant offense. At no time was the jury apprised that the defendant was arrested by the Evanston police, no reference was made to “arrest” or “custody.” There is a distinct difference between evidence of prior unrelated offenses being presented to the jury and the situation in the case before us.

The defendant alleges that the gun in question and certain route cards found in the automobile were improperly admitted into evidence. Prior to trial, a motion to suppress these items was heard by the trial court and denied. The defendant contends the search of his car was illegal. An examination of the record does not substantiate this allegation. The police officers testified that they wanted to search his car, that he gave them the keys and agreed. Upon direct examination, defendant denied that he had a gun in the car on May 9, 1970, and the following colloquy took place.

“Q. And did you have the gun in the Buick Riviera on May 24th when the police officers stopped you in Evanston?
A. Yes. It was still in the car.
Q. And at that time did they request to search your car?
A. Yes.
Q. And you let them, did you not?
A. Yes, I did.
Q. And were certain cards also seized?
A. In the trunk of my car, Yes.”

In this court’s opinion such a statement by the defendant is consent. In People v. Ledferd (1968), 38 Ill.2d 607, 610, 232 N.E.2d 684, the court said:

“One who consents to a search waives his constitutional protection against unreasonable search. [Citations.] Whether consent has been given is a question of fact to be determined initially in the trial court, and where the evidence on the issue is in conflict this court will uphold the trial court’s finding unless it is clearly unreasonable. [Citations.] Here, the trial judge found that the defendant consented to the search. It is not within the province of a court of review to assess the credibility of witnesses and a study of the evidence presented at the hearing on the motion to suppress does not lead us to conclude that the court’s finding was unreasonable.”

See also People v. Armstrong (1968), 41 Ill.2d 390, 396, 243 N.E.2d 825; People v. Harris (1966), 34 Ill.2d 282, 285, 215 N.E.2d 214.

The defendant in this regard further contends that the salesman route cards should not have been seized. The Evanston police were in fact searching' the car for any evidence that might have related to the rape charge in Cook County. It was subsequently ascertained that the route cards which covered the village of Bensenville area did in fact have probative value. We will not substitute our judgment for that of the trial court under the facts herein.

Defendant next contends the trial court erred in its rulings as to alleged hearsay evidence. The first allegation is that the teletype communication between the Bensenville police department and the Evanston police department giving the name of Roger Woods was hearsay and should not have been admitted. The contents of the teletype communication were not divulged to the jury and the communication was introduced actually as a means of showing why the complaining witness was brought into contact with the Evanston police department. We find no error in this regard. With further relation to hearsay, the defendant attempted to bring out the question of discrepancies between the police reports and the evidence presented, contending that this was impeachment by omission. The court refused to allow the cross examination. As the State points out, if he were attempting to impeach the officer for an omission in his report he had not laid a proper foundation. Subsequently, however, the defendant went into great detail as to the pohce reports in question. The court held that the defense had opened the door in his examination and aUowed the pohce officer to testify to his conversation with the complaining witness about the gun and the fact that she thought the car was a Mercury. The record discloses that the detective then testified that he told the girl not to include the use of the gun in her statement if she were not positive. Her testimony at the trial indicates that she thought that it was a gun. A11 of this was presented in detaH to the jury and we find no error in this regard. The jury was fully apprised of the aHeged discrepancy as to whether or not the defendant did or did not have a gun, and aU of the alleged inconsistencies of the complaining witness’ testimony and statements were brought out by defense counsel and were considered by the jury in their determination.

Defendant alleges that the trial court should have granted the motion of the defendant for a directed verdict as to the attempt rape charge. The trial court at first was incfined so to do but then denied this motion and submitted the question to the jury, which found the defendant not guHty of attempt rape. Defendant’s contention is that the inclusion of an attempt rape charge which aUowed the court to instruct the jury on the subject of rape, prejudiced him and aUowed the use of “emotion packed instructions.” Under the facts aHeged in this case we find that the action of the trial court in allowing the question to go to the jury was proper. The complaining witness testified that defendant used a gun, that he wanted intercourse, that he wanted her to commit a deviate sexual act, that he fondled her body, that he exposed himself, aH of which in this court’s opinion are sufficient to submit the question of attempt rape to the jury.

Defendant objects to the closing argument, specificaHy as to two statements made by the prosecutor, one of which was “you have heard of statutory rape in the past.” The objection was sustained and the jury was instructed to disregard the statement. The purpose of this statement was doubtless an attempt to show that consent was not a defense to a charge of indecent liberties or attempt rape. Such a statement was improper but in view of the facts herein, does not constitute such error as would prejudice the substantial rights of the defendant.

An additional aHeged error pertains to a rainstorm which had occurred on the afternoon of the incident herein.

Defendant contended that at the time of the incident herein there was a rainstorm and that he was at work at his place of employment, the Domestic Air Express, Mannheim and Irving Park roads. Defendant introduced a tornado warning issued by the U.S. Weather Bureau covering the time of 2:50 P.M. until 3:30 P.M. for Du Page, Northern Cook and Lake Counties. The State in turn then introduced a weather report issued by the U.S. Weather Bureau at O’Hare International Airport showing that the rain in question occurred between 2:48 P.M. and 3:10 P.M. Defendant did not object to the admission of this- document in evidence. However, it was pointed out that these times were Central Standard Time and the defendant had testified in his alibi, that he left his place of employment between 3:30 P.M. and 3:40 P.M. and that it was raining very hard. The O’Hare International Airport weather report shows that the rain commenced at 2:48 Central Standard Time which was 3:48 P.M. Daylight Savings Time in this area. The alibi defense witness, Arthur Donarski, had testified that Woods left the plant at 3:30 P.M. but prior to that he had gone outside and that it had "started to rain excessively”; that he came back in and was wet. The testimony therefore of both the defendant and his alibi witness would be that the rain occurred prior to 3:30 P.M., whereas the weather report of O’Hare airport indicates it did not start until 3:48 P.M. Defendant objects to the admission of the weather report because there was no proof as to the distance between the weather station at the O’Hare Airport and the Domestic Air Express at the southeast comer of the intersection of Mannheim and Irving Park road. Mannheim and Irving Park road bisect O’Hare airport. The proximity of the weather station located at the airport and defendant’s place of employment is patent from the record. While it well may have been preferable for the State’s Attorney to indicate the exact distance between the weather station and defendant’s place of employment, failure to do so does not constitute reversible error, and this court may take judicial notice of such proximity. Once again, this is a question as to time in this instance first raised by the defendant. We consider this was a factual question for determination by the jury.

Lastly, defendant objects to the sentence imposed stating that he has been out on bond for a period of two years and has had no further arrests. In substance, defendants contends the ends of justice would best be served placing him on probation for the five year period without requiring him to serve the one year sentence. The State recommended 4-8 years in the penitentiary which the court rejected. A probation hearing was had in which the defendant produced Dr. Mildred Buck, a psychologist employed by the Division of Mental Health; Chicago Board of Health. Dr. Buck stated that she had seen Roger Woods at least fifty times in the past year since the incidents in Bensenville and Evanston, and it was her opinion “that the defendant had a very good chance of living a good life once this matter was resolved.” She further stated that if he were placed on probation that he would not get in trouble again and that she would be willing to work with him.

Under the circumstances of this case we will not substitute our judgment on the question of probation and sentence, and feel that the sentence imposed by the trial court was based upon the court’s due consideration of the facts of the case, the treatment being given to defendant, and all favorable aspects of the probation report. We therefore affirm the decision of the trial court.

Affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING

Mr. PRESIDING JUSTICE GUILD delivered the opinion of the court:

The defendant petitioned this court for rehearing setting forth for the first time the provisions of the Unified Code of Corrections in this State pertaining to “split sentences”. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 6—3(d).) The defendant is correct in stating that this matter has not reached final adjudication as of the effective date of the statute. (People v. Harvey (1973), 53 Il.2d 585, 294 N.E.2d 269.) Defendant is further correct in stating that incarceration may not presently be imposed as a condition of his probation except sentences of periodic imprisonment as set forth in Article 7 of the Unified Code of Corrections. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 7—1, et seq.) People v. Rhinehart (1973), 11 Ill.App.3d 859, 296 N.E.2d 781; People v. Davis (1973), 12 Ill.App.3d 1014, 299 N.E.2d 342.

In the instant case the defendant was granted probation for a period of five years, the first year to be served in the State Prison Farm at Vandalia.

The defendant being entitled to the benefit of the provisions of the Unified Code of Corrections (Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1005 — 6—3(d)), we therefore affirm the judgment of conviction and remand this cause to the circuit court of Du Page County for proper sentencing.

Affirmed and remanded with directions.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: Mr. PRESIDING JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobbie Jean Davis, Defendant-Appellant.
    (No. 12144;
    Fourth District —
    August 23, 1973.

      Rehearing denied October 2,1973.

    John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana, (Robert G. Frederick, Assistant State’s Attorney, and Roy E. Clark, Senior Law Student, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE CRAVEN.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Swartz, Defendant-Appellant.
    (No. 72-13;
    Fifth District —
    August 24, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Richard E. Cunningham, Staff Attorney, and Luther Simmons, Senior Law Student, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (Philip G. Feder, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

William Swartz was convicted of the offense of burglary after a jury trial in the circuit court of St. Clair County. He was sentenced to a term of not less than fifteen nor more than twenty-five years in the Illinois State Penitentiary. Due to unusual circumstances the case is now here on direct appeal.

Appellant’s brief presents five issues for review. First, that defendant was not proven guilty beyond a reasonable doubt; second, the court erred in giving an instruction defining reasonable doubt; third, prejudicial error occurred when the State brought out the fact that defendant remained silent at the time of his arrest; fourth, that the closing arguments by the State constituted prejudicial error; and fifth, that the sentence imposed was excessive.

There was positive eyewitness identification of the defendant together with numerous circumstances which indicated his guilt. We find no merit to the contention that defendant was not proven guilty beyond a reasonable doubt. As to the next three contentions, the objections now made were not made at the trial and would thus under ordinary circumstances be waived. After a review of the entire record we find no reason why the ordinary rule of waiver should not apply.

As regards the contention that the sentence was excessive we note that defendant had two prior felony convictions. However under the circumstances of this case we do not need to pass on that question. During the pendency of this appeal the Uniform Code of Corrections (ch. 38, sec. 1001 et seq.) has become effective. Under the Uniform Code the maximum sentence for this offense is twenty years and the minimum cannot exceed one third of the maximum. Since this defendant has now served over seven years, we see no necessity to remand for resentencing. We therefore reduce the sentence to a minimum of six and two-thirds years.

Judgment affirmed and sentence reduced.

G. MORAN, P. J., and JONES, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Shirley Mitchell, Plaintiff-Appellant—(Kenneth Mitchell, Plaintiff,) v. White Motor Company, Defendant-Appellee—(Charles Landenheim et al., Exrs. of the Estate of John Lanin, Deceased, Defendants.)
    (No. 73-126;
    Fifth District —
    August 27, 1973.
    John E. Norton, Professional Corporation, of Belleville, (Edward J. Kionka, of counsel,) for appellant.

      Brady, Donovan & Hatch, of Belleville, (Harold Donovan and Dennis Rose, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This action was brought in the circuit court of St. Clair County by Shirley and Kenneth Mitchell, husband and wife, for damages arising from injuries sustained by Kenneth Mitchell when the hood of a truck manufactured by defendant White Motor Company fell upon him. The complaint was filed more than two years and less than five years after the alleged injury to the husband. In Count One of the complaint, Shirley Mitchell seeks to recover from White Motor Company for loss of her husband’s services and consortium resulting from her husband’s injuries, based upon principles of strict tort liability. (Count Two is not involved in this appeal.)

Upon motion, the trial court dismissed Count One of the complaint and entered judgment against Shirley Mitchell and in favor of White Motor Company on the ground that her claim is barred by the statute of limitations, from which this appeal is taken. No questions are raised on the pleadings, and a finding pursuant to Supreme Court Rule 304(a) was entered.

The sole issue presented is whether a wife’s cause of action for damages for loss of her husband's services and consortium resulting from personal injuries sustained by him is governed by the two-year statute of limitations application to “actions for damages for an injury to the person” (Ill. Rev. Stat. 1967, ch. 83, par. 15) or the five-year statute of limitations applicable to actions “to recover damages for an injury done to property, real or personal, * * * and all other civil actions not otherwise provided for.” Ill. Rev. Stat. 1967, ch. 83, par. 16.

The identical issue and contentions of the parties has not been passed upon by a reviewing court of this State, however, the identical issue and the same contentions in regard thereto have recently been considered and resolved in two Illinois United States District Courts, in the cases of Johnson v. Hi-Way Dispatch, Inc., (E. D. Ill. 1972), 352 F. Supp. 929, and Hockett v. American Airlines, Inc. (N.D. Ill. 1973), No. 70 C 652, decided May 7, 1973, (F. Supp.). Both cases applied what was considered to be the applicable Illinois law, and arrived at the conclusion that an action for loss of consortium is subject to the five-year Statute of Limitations which governs “all civil actions not otherwise provided for”, and falls outside the scope of the two-year limitation period. We so hold as to both the alleged loss of consortium and loss of the husband’s services.

Agreeing with the holdings and reasoning of those decisions on the issue here involved we therefore reverse the order of dismissal and judgment entered thereon, and remand this cause for further proceedings.

Reversed and remanded.

CREBS and G. MORAN, JJ., concur.


author: Mr. JUSTICE SMITH

text:
    The Biddle Advertising Company, Plaintiff-Appellee, v. Lloyd A. Fry Roofing Company, Defendant-Appellant.
    (No. 11793;
    Fourth District —
    September 5, 1973.

      Costigan, Wollrab, Fraker & Wochner, of Bloomington, (WiUiam F. Costigan, of counsel,) for appellant.
    Markowitz, Lawrence, Lenz, Jennings & Naylor, of Bloomington, (Robert Markowitz and John Naylor, of counsel,) for appeUee.
   Mr. JUSTICE SMITH

dehvered the opinion of the court:

Plaintiff was agent for defendant. Plaintiff operates an advertising agency and defendant engaged its services. Plaintiff had suggested to defendant that it could enhance its sales by utilizing yeUow-page advertising in telephone directories. Defendant agreed. Plaintiff then entered into a contract with Ruben H. Donnelley Company which handles such advertising. This was a written agreement between plaintiff and DonneUey and while there is a place for defendant to sign, it remained unsigned. The Agreement For National YeUow Page Service designated defendant as “AGENCY’S CLIENT”, plaintiff as “PURCHASER”, and DonneUey as “SELLING COMPANY”. The contract read that any advertising ordered could be canceUed by plaintiff giving to DonneUey thirty day’s notice prior to the closing date of the directory or directories concerned. While defendant was not a signatory to this contract — professed to have never seen it — there was evidence that it knew the terms thereof, particularly as to the thirty day canceUation clause. This is important, because the amount sought by plaintiff is for yeUow page advertising in directories which had closing dates during the thirty days foUowing notice of canceUation and there was evidence that a representative of plaintiff had explained to officers of defendant that notice must be given thirty days prior to the closing date of any given directory to effect cancellation. The arrangement for advertising began in September, 1966. On October 30, 1969, defendant canceUed its contract with Donnelley by letter and sometime thereafter (April) Donnelley acknowledged cancellation, which was effected for all directories which were scheduled to close after December 1, 1969. Defendant stated in its letter of October 30, that, “it is agreed we wiU start the phase out’ program on our YeUow Sheet Advertising, effective November 1, 1969. No further advertising will be approved for directories coming up for reprint after November 1, 1969.” Donnelley’s letter in response acknowledged cancellation and continued, “We have issued canceUation orders for aU directories which were scheduled to close on or after December 1, 1969. Any directory which closed prior to this date will be published and billed.” Suffice it to say that during the three-year period there was extensive advertising for defendant for which DonneUey billed plaintiff and plaintiff billed defendant, adding a 15% commission. There is no question but that the advertising services sued for were performed — and evidence by defendant that such services were poorly performed during the entire course of the contract is not germane to this appeal, if for no other reason than that an issue thereon was not made up by the pleadings. The circuit court held for plaintiff and entered judgment for the amount sought — $13,607.72.

Defendant says on review that there are no questions of a factual nature — that they are all ‘legal questions” involving (a) whether an agent (plaintiff) can recover against its disclosed principal (defendant) for an obligation allegedly due a third party (Donnelley) with whom the agent has conducted business, (b) whether an agent can recover against its principal on an obligation allegedly due a third party when the agent is advised of defenses in existence on behalf of the principal, and (c) whether an agent in discharging its duty to its principal can pay an account on behalf of the principal after being advised by the principal that no amounts are due. These questions we deem beside the point — the undercurrent through them all is that defendant was a “disclosed principal”, hence the third party must look to the principal; a fortiori, the agent has no standing vis-a-vis the principal. But this admitted circumstance — a disclosed principal — is immaterial here because plaintiff was responsible for the payment of advertising services rendered by Donnelley to defendant.

This liability of the agent here comes about in two ways — the contract itself and the custom and usage of the trade or business in explanation of the contract. The contract called for Donnelley to render bills to plaintiff upon publication which were payable within 30 days. This indeed happened — Donnelley never billed defendant but always billed plaintiff. As to custom, the evidence disclosed that in the advertising business the agency is liable for payment of charges arising from advertising placed with a given media. Additionally, it was the credit rating of the agency here and not the client (defendant) that Donnelley would look to — “The general custom in the industry for contracts such as this as to the responsibility for the payment of bills is that the minute we took an order from Fry Roofing Company (defendant), we became financially responsible to the Donnelley Company where the advertising was placed. This has happened in tens of thousands of publications over the past 30 years. The Fry Roofing Company never paid directly to the Donnelley Company.”

We agree with the defendant that there are no factual issues. Defendant (as to plaintiff) was the client and principal, plaintiff (as to defendant) its advertising representative and agent, and Donnelley

(as to defendant) a third party but a contractual party with plaintiff as agent for defendant to whom services were to be rendered. Now, ordinarily, a contract made with an agent of a disclosed principal does not render the agent liable should his principal default. In this context, the agent and the principal are indistinguishable — if the agent is liable, the principal is liable and visa versa, but not otherwise — as to third parties, the liability of the principal is not the liability of the agent. (Petrando-United States Law Printing Co. v. Barry, 4 Ill.App.2d 319, 124 N.E.2d 85.) In 1 Ill. Law & Practice 766, Agency § 130 it is said:

“It is considered a weH settled principle of law in IlHnois that an agent is not liable for the acts of a disclosed principal * * °.
An agent acting within the scope of his authority is not liable on an undertaking or contract for the principal where he expressly discloses his agency or the person dealing with him knows of the agency unless the agent binds himself either expressly or by inference to become personally responsible.” (Emphasis supplied.)

Thus, as emphasized, this rule, as do most rules, has an exception or can be otherwise qualified — an agent can be Hable if he agrees to be liable on a contract for the benefit of his principal. Both parties cite Gieseke v. Hardware Dealers Mutual Fire Insurance Co., 46 Ill.App.2d 131, 195 N.E.2d 32. Gieseke does indeed affirm the general rule on which defendant refies but clearly states that an agent may become liable to a third party if he binds himself to become personaHy responsible or where credit has been “given expressly and exclusively to the agent and it appears that it was clearly his intention to assume the obligation as a personal liability and that he has been informed that credit has been extended to him alone.” 3 Am.Jur.2d 654, Agency § 294 (1962).

Here, the agent was personaHy liable to Donnelley by virtue of the contract between them. Donnelley thus could look to plaintiff, even though it knew it was an agent for defendant. Because this is so, the plaintiff had the right to sue its principal for its money obligations to the third party — and whether actually paid or not. That the third party could also sue the principal is beside the point — at least here because it has not done so. Indeed, it has sued neither. But the agent, recognizing its obligation, need not wait to be sued. It can opt as it did to sue its principal regardless of what it thinks the third party might do. We can surmise that Donnelley apparently was first looking to plaintiff rather than defendant and plaintiff knew it and acted before the “looking” took a more active form. The judgment of the circuit court and our affirmance is, of course, without prejudice as to any rights or remedies that defendant may have against Donnelley. The judgment was composed of actual payments by plaintiff and amounts still owed to Donnelley by plaintiff plus a 15% commission on the top. Accordingly, the judgment appealed from is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence E. Closson, Defendant-Appellant.
    (No. 11715;
    Fourth District —
    September 5, 1973.
    Dwight H. Doss, of Monticello, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Robert Barewin, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Upon bench trial, defendant was convicted of driving while under the influence of intoxicating liquor. Sentence of seven days was imposed. Defendant appeals.

It is urged that the court erred in accepting an oral waiver of jury trial made by defendant’s retained counsel. Following arrest on February 18th, defendant appeared on February 19th to plead not guilty. The cause was set for jury trial on April 7th. A series of continuances ensued at defendant’s request: (1) to May 13th for further time to procure counsel for jury trial; (2) to June 7th on request of defendant’s counsel who negotiated a jury waiver for further continuance; and (3) to June 30th on defendant’s request over the objections of the prosecution. On the latter date defendant appeared with counsel who asked to withdraw since the defendant would not accept counsel’s negotiation of the matter. The case was then set for July 28th as a “final continuance’”.

On July 28th, defendant appeared with the associate of counsel who had been retained that morning by defendant, but who was unable to be present at the time. The associate asked for a continuance for trial. After extensive colloquy between the court and counsel, the motion was denied. The report of proceedings at trial is not included in the record, but it appears that defendant appeared pro se. At the hearing on sentence on July 30th, the erstwhile associate appeared apparently in the status of retained counsel. He filed a notice of appeal. Other counsel now prosecutes such appeal.

In People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, it was determined that a defendant who acquiesced in or failed to object to counsel’s waiver of jury trial was deemed bound by such waiver. The opinion noted that the court was entitled to rely upon counsel’s “professional responsibility”. Here, defendant was not ignorant of his right to a jury trial, as was the fact in People v. Collins, 112 Ill.App.2d 458, 251 N.E.2d 325, and People v. Boyd, 5 Ill.App.3d 980, 284 N.E.2d 699.

The administration of jury calendars received some recognition when defendant’s retained counsel negotiated with the prosecution for a jury waiver and a further continuance. Defendant’s participation in such negotiation is not shown in the record, but upon the trial date, June 20th, at which counsel withdrew, the court recited the history of the proceedings and defendant did not then object to the fact of jury waiver. Appearing on July 28th, after the “final continuance”, defendant with retained counsel sought to put the cause back on the jury calendar.

This case is clearly distinguishable from those where counsel was appointed as the case is called for trial and the client never actually discusses the defense with his attorney before the plea and waiver of jury. (See People v. Baker, 126 Ill.App.2d 1, 262 N.E.2d 7, People v. Boyd, 5 Ill.App.3d 980, 284 N.E.2d 699, and People v. Brownlow, 114 Ill.App.2d 458, 252 N.E.2d 685.) There is no precise formula for measuring an understanding waiver of jury trial through counsel. (People v. King, 4 Ill.App.3d 1066, 282 N.E.2d 746.) This record indicates that defendant knew of his right to a jury trial. The sentence hearing disclosed defendant’s experience in several comparable hearings and he plainly was aware that there had been actual settings for jury trial.

Defendant had had ample opportunity to discuss the case with retained counsel and listened to counsel’s recital of the case without objection. No question was raised as to the waiver until he appeared for bench trial on a final setting. The withdrawal of a jury waiver is not a matter of right and is not timely made where the result is a further delay of trial after several continuances with the attendant prejudice to the State whose witnesses are present for trial. (People v. Catalano, 29 Ill.2d 197, 193 N.E.2d 797.) We find no abuse of discretion.

The judgment is affirmed.

Affirmed.

CRAVEN, P. J., and SIIMKINS, J., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    Daniel Lawrence, Plaintiff-Appellant, v. Williamson Ford, Inc. et al., Defendants-Appellees.
    (No. 72-201;
    Second District —
    August 21, 1973.

      Reese, Schlueter & Ecklund, of Rockford, for appellant.
    Robert K. Clark and James F. Maynard, both of Rockford, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff, Daniel Lawrence, filed suit on October 1, 1971, to recover for personal injuries resulting from a 1952 accident, alleging that he had become of age on October 6, 1969. A defense of the statute of limitations based on failure to join the proper party defendant until after the limitations period had run was sustained. Plaintiff appeals from the judgment dismissing his amended complaint.

The original complaint was captioned Daniel Lawrence, plaintiff, against “Frontier Ford, Inc. (formerly Williamson Motor Company, an Illinois corporation), and John Doe, defendants.” In paragraph 2 of the complaint, plaintiff alleged that he was struck by an automobile driven by an unknown salesman “for the Williamson Motor Company, an Illinois corporation, which it is believed became Frontier Ford, Inc.”. Paragraph 7 alleged:

“That because of the length of time which has elapsed between the date of the injury and the present time, plaintiff is informed and believes that the defendant company involved was the Williamson Motor Company and that by acquisition of stock, merger, sale or otherwise, Frontier Ford, Inc. is the legal successor to the business of Williamson Motor- Company, but that in any event, the intent of this complaint is to name Williamson Motor Company as a defendant. * * *”

Frontier Ford, Inc. was served with summons. It appeared and filed a motion to dismiss on the ground it was not in existence at the time of the occurrence. An attached affidavit detailed the formation of Williamson Motor Company, Inc., as a Delaware corporation in 1957, with a change of name to Fairway Motor Co. Inc. in 1958; Willett Ford, Inc., in 1964; and to Frontier Ford, Inc., a Delaware corporation, in 1969, and its continued existence since then as a Delaware corporation by that name. A supplemental affidavit supplied the allegations that on May 6, 1957, Williamson Motor Co., Inc., a Delaware corporation, purchased the assets of Williamson Motor Co., Inc., an Illinois corporation, complied with the Bulk Sales Law and assumed no liabilities of the Illinois corporation except for unperformed obligations under assigned leases and service and equipment contracts.

On November 29, 1971, plaintiff moved to correct the party defendant to Williamson Ford, Inc., a Delaware corporation, as the successor to the Illinois corporation of Williamson Motor Company which he had named originally. Supporting documents traced an Illinois corporation named Barnes Motor Company formed in 1911; change of name to Williamson Motor Company in 1914; a further change of name to Dor-Will Company in 1957; and a 1965 merger between the latter Illinois corporation and the Delaware corporation called Williamson Ford, Inc. The court granted leave to file an amended complaint against Williamson Ford, Inc., a Delaware corporation, and on motion alleging the bar of the statute of limitations, the cause was dismissed.

In a memorandum opinion the trial court stated that it was apparent that plaintiff had sought to name as defendant the legal successor of the entity which in 1952 was known as Williamson Motor Co. The court concluded that the issue is determined by section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46). It held that since service of summons was not had upon the appropriate defendant within the statute of limitations, and there was no showing by plaintiff that defendant had within that period knowledge of the pending cause, the action was barred under sections 46(4) (c) and (d) of the Civil Practice Act. Ill. Rev. Stat. 1971, ch. 110, par. 46(4) (c) & (d).

Plaintiff contends that its original complaint filed before the limitations period had run showed a clear intent to and did in fact name the original corporation, Williamson Motor Co., as a defendant; that the filing of the complaint tolled the statute of limitations; that section 46(4) of the Civil Practice Act does not apply; and that under section 69(e) of the Business Corporation Act (Ill. Rev. Stat. 1971, ch. 32, par. 157.69 (e)) the substitution of the correct successor corporation after the statute has run is permissible even though an incorrect successor corporation was initially named in the complaint against the original corporation.

Defendant argues that section 69(e) of the Business Corporation Act has nothing to do with the statute of limitations or the timely filing of suit; that under the facts of this cause, the issue should be determined by section 46(4) of the Civil Practice Act. It argues that the successor corporation must be sued before the statute of limitations has run and that the plaintiff did not merely misname the proper party defendant but made a mistake as to its identity and therefore commenced a new suit after the statute had run as against the present defendant.

We think that defendant is correct in contending that by naming Frontier Ford, Inc. in the original complaint, serving summons on it, and forcing it to come in and move for a dismissal, plaintiff made a mistake, not merely a misnomer, as to the proper successor corporation of the original corporation. (Proctor v. Wells Bros. Co. (1914), 262 Ill. 77, 81-82. See also Hoagland v. Brown (1966), 71 Ill.App.2d 240, 243.) However, the record shows that plaintiff also commenced suit against Williamson Motor Co., an Illinois corporation, in the original, timely complaint. While the title of the complaint does not make it clear that plaintiff is intending to sue the former corporation, the body, particularly paragraph 7 when combined with the title and other portions of the complaint which we have previously noted, do make it clear that a timely suit was commenced against Williamson Motor Co., an Illinois corporation. See Ill. Rev. Stat. 1971, ch. 110, par. 21(4); Fleshner v. Copeland (1958), 13 Ill.2d 72, 77.

Plaintiff’s action in naming and serving the wrong party, Frontier Ford, Inc., does not automatically defeat his cause of action. Plaintiff did include and intend to name the original corporation, Williamson Motor Company, an Illinois corporation, as a party defendant in his complaint which was filed before the statute of limitations had run. The dismissal of an unnecessary and improper party to an action after the statute has expired does not effect a discontinuance in the sense that a new cause of action is created against the original corporation named in the timely filed complaint. (Patten v. Iroquois Furnace Co. (1905), 124 Ill.App. 1.) The bringing of suit against the original corporation within the statute of limitations may enable liability to be determined against the successor. Franklin Life Insurance Co. v. Hickson (1901), 97 Ill.App. 387, affd, 197 Ill. 117.

Defendant argues, in effect, that once a merger of corporations takes place, a plaintiff must join the successor corporation before the running of the limitations period to avoid its bar. We disagree. A former corporation since merged, may be sued under its original name under the provisions of section 69(e) of the Business Corporation Act. (Ill. Rev. Stat. 1971, ch. 32, par. 157.69(e).) The language of the statute would permit suits against the successor corporation for alleged acts of the former corporation, unrestricted because of the fact of merger. Thus, a plaintiff has the choice of describing the defendant by its old or its new corporate name in commencing suit against it. Board of Education v. Herzog Building Corp. (1963), 41 Ill.App.2d 44, 48-49.

In Herzog, suit was commenced and judgment was entered against the Herzog Construction Company after it had merged, but without the plaintiff's knowledge of the merger. The successor corporation, Herzog Building Corporation, contended unsuccessfully that it was not responsible for the judgment against the nonexisting entity. Although Herzog did not deal with the statute of limitations, its underlying rationale is that section 69(e) permits suit to be effectively commenced and prosecuted against a corporation which has already merged before suit has commenced, so long as the claim upon which the suit is based existed against the merged corporation before the merger.

In Herzog, the successor corporation did know about the suit and defended against it. However, obvious problems exist when the successor corporation is not served with process within the limitation period and does not defend against it. Although the wording of section 69(e) of the Business Corporation Act permits suit against a merged corporation in its original name as well as in the name of the survivor, the proceeding is actually against the surviving corporation regardless of the name under which the defendant is sued. (Board of Education v. Herzog Building Corp. (1963), 41 Ill.App .2d 44, 49.) Since the effect of a merger is to dissolve the original corporation and create a new one (Southern Illinois Gas Co. v. Commerce Com. (1924), 311 Ill. 299, 302), and the original corporation becomes a nonentity (Ill. Rev. Stat. 1971, ch. 32, par. 157.69(b); Franklin Life Insurance Co. v. Hickson (1901), 97 Ill.App. 387, 396, aff'd, 197 Ill. 117), it is the successor who must come in and defend and so must be notified.

The question which Herzog was not required to consider and which is apparently not addressed in the statute (Ill. Rev. Stat. 1971, ch. 32, par. 157.69(e)), is the problem of delay in giving notice to the successor corporation. Fundamental fairness requires that notice be given within some reasonable time to the successor corporation whether served in its present name or in the name of the original, pre-merger, corporation, so that it may come in and defend. In our opinion, Supreme Court Rule 103(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 103(b)) provides the answer in circumstances such as those before us in which the statute of limitations has run in the interval between commencement of suit and service of summons. Under the Civil Practice Act, an action is commenced by the filing of the complaint (Ill. Rev. Stat. 1971, ch. 110, par. 13); but in order to safeguard against circumventing statutes of limitation, an action may be dismissed for failure to exercise reasonable diligence to obtain service of process after the expiration of the applicable limitations period. (Ill. Rev. Stat. 1971, ch. 110A, par. 103(b); People v. Luttrell (1970), 130 Ill.App.2d 241, 245; Alsobrook v. Cote (1971), 133 Ill.App.2d 261, 263-264.) Plaintiff has the burden of showing that he used reasonable diligence in obtaining service. Mosley v. Spears (1970), 126 Ill.App.2d 35, 42.

In the case before us suit was commenced on October 1, 1971, and, in our view, named the original corporation to which a proper party defendant ultimately succeeded by merger. Service on the latter, Williamson Ford, Inc., a Delaware corporation, was made on December 23, 1971. Proper service of process therefore occurred some 78 days after the expiration of the statute of limitations on October 6, 1971, and some 83 days after filing suit. The court below did not reach the question of whether plaintiff exercised due diligence in serving the proper defendant in the view which it took of the case.

We therefore reverse the judgment below and remand the cause so that the trial court may specifically consider the issue of diligence in serving the defendant. While the ruling must be made on the circumstances of the particular case before the court, the factors to be considered will include the timé sequences, the activities of the plaintiff, any knowledge on the part of the plaintiff of the defendant’s location, the ease with which the defendant’s whereabouts could have been ascertained, any actual knowledge by the defendant of the pendency of the action as the result of ineffective service, and any special circumstances which would affect the efforts made by the plaintiff. Alsobrook v. Cote (1971), 133 Ill.App.2d 261, 264. See also Schultz v. McElroy (1973), 9 Ill.App.3d 940; Galvan v. Morales (1973), 9 Ill.App.3d 255; DeCicco v. Reed (1966), 77 Ill.App.2d 349.

Although not cited by either party, we would add that we reject the approach taken in the case of J.W.T. Inc. v. Joseph E. Seagram & Sons, Inc. (N.D. Ill. 1972), 347 F. Supp. 965, which dismissed suit commenced against a corporation in its pre-merger name because the merger had taken place over two years earlier. While perhaps reaching a practical result, the court erroneously applied the two year limitation of section 94 of the Business Corporation Act (Ill. Rev. Stat. 1971, ch. 32, par. 157.94), pertaining to dissolutions, to section 69(b) (Ill. Rev. Stat. 1971, ch. 32, par. 157.69(b)), providing that the separate existence of all pre-merger corporations except the survivor, shaU cease. In doing so the court not only overlooked the fact that section 94 pertains only to situations involving a winding up of the business in which no successor is contemplated, but also ignored the language of section 69(e) and the Herzog case which aUow suit against the original corporation as if the merger had not taken place.

We therefore reverse and remand with directions to hear evidence directed to the issue of the exercise of reasonable diligence pursuant to Supreme Court Rule 103(b). If the court determines that due diligence has been exercised, the court is directed to overrule the defendant’s motion to dismiss and to further proceed.

Reversed and remanded with directions.

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

       Subsections 4(c) and 4(d) provide:
      "(4) A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: * * * (c) service of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is beneficiary; (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him. * * *”

       Section 69(e) provides:
      “When such merger or consolidation has been effected:
      4 4 4
      (e) Such surviving or new corporation shall thenceforth be responsible and liable for all the liabilities and obligations of each of the corporations so merged or consolidated; and any claim existing or action or proceeding pending by or against any of such corporations may be prosecuted to judgment as if such merger or consolidation had not taken place, or such surviving or new corporation may be substituted in its place. Neither the rights of creditors nor any hens upon the property of any such corporations shall be impaired by such merger or consolidation.”

       Possibly the problem of giving notice to a nonexistent corporation was overlooked in the statute when it was amended in 1933. Prior to 1933, suit must have been pending when the merger took place if the successor was to be obligated to defend an action commenced against its predecessor. There was no provision in the prior law for commencing an action on an existing claim against the merged corporation in its old name. Suit would have to have been commenced against the successor corporation in its new name.

       Where suit is commenced against a merged corporation in its original name as opposed to the name of the survivor, the Business Corporation Act provides for the continuous existence of a registered agent upon whom process may be served and permits service of process against the former corporation on the Secretary of State if no provision is made for a registered agent. E.g., Ill. Rev. Stat. 1971, ch. 32, pars. 157.47 — 2, 157.13, 157.69(c) & (f), 157.Ill.


author: Mr. JUSTICE SEIDENFELD.

text:
    Mary Ann Olson, Plaintiff-Appellant, v. Jon L. Olson, Defendant-Appellee.
    (No. 72-203;
    Second District —
    August 21, 1973.
    Berry & Simmons, of Rockford, for appellant.
    Maynard & Brassfield, of Rockford, for appellee.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE ABRAHAMSON

text:
    Thaddeus S. Pierce et al., Plaintiffs-Appellees, v. Alvin W. DeJong et al., Defendants-Appellants.
    (No. 72-119;
    Second District —
    August 22, 1973.

      Jewel N. Klein, of Chicago, and Robert W. Hotte, of Elmhurst, for appellants.
    William L. Cregar, of Cregar & Preston, of Brookfield, for appellees.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Plaintiffs brought suit in the circuit court of Du Page County charging that defendants (including not only the appellants but another neighbor, Robert Rodi, and a landscaper, Joseph McGoldrick, individually, and doing business as Joseph McGoldrick Landscaping) had willfully obstructed the natural flow of surface water from plaintiffs’ property thus causing the water to back up on plaintiffs’ adjoining property and damaging plaintiffs’ trees and shrubs and making the property unusable. Plaintiffs asked $10,000 in actual damages, $100,000 in exemplary damages and for injunctive relief. Before trial defendants remedied the drainage problem and the request for injunction was withdrawn.

Defendant Rodi was dismissed on his motion for summary judgment. Defendant Alvin W. Dejong appeared as attorney for himself, his wife, and McGoldrick, and filed their answer to the complaint and a counterclaim. Pleadings were closed and following a bench trial the court filed a written opinion and entered an order dismissing McGoldrick and rendered judgment against the Dejongs for $9470 (representing $1470 for actual damages — replacement value of trees, shrubs and bushes — $3000 for general damages and $5000 for exemplary damages). Defendants appeal from that judgment.

Defendants contend that they cannot be held liable because the court found that the obstruction causing the back-up of water on plaintiffs’ property was caused by defendant McGoldrick, the landscaper, in the course of his grading of the Dejong land, and that the court’s dismissal of McGoldrick bars any recovery against the Dejongs. They also complain that plaintiffs did not meet the burden of proving McGoldrick’s agency.

There was no need for the plaintiffs to prove agency. Paragraph 4 of the answer filed by the defendants (Dejongs and McGoldrick) and verified by defendant Alvin W. Dejong, admitted that defendant Mc-Goldrick was employed by the Dejongs and alleged “by way of affirmative defense”:

“[T]hat Joseph McGoIdrick, individually and doing business as Joseph McGoIdrick Landscaping, as an agent of Alvin W. Dejong, has not incurred any liability and can incur no liability under any of the allegations contained in the plaintiffs’ Complaint because he was and is at all times acting as agent of the defendant Alvin W. Dejong.”

In his testimony, defendant Alvin W. Dejong referred to defendant Mc-GoIdrick variously as “my agent” and “my employee.” He further testified that he assumed full responsibility for whatever McGoIdrick did and instructed Mr. McGoIdrick to final grade the swale and put sod in it which included bringing the level of his (Dejong’s) land up to the level of Mr. Rodi’s in certain areas, thus resulting in the blocking of the drainage about three to five inches. Thus, by both the answer filed and Mr. Dejong’s testimony he not only exonerated the landscaper from any liability for his actions, but assumed it.

Defendant further contends in effect that because not only defendant Dejong but his adjoining neighbor, defendant Rodi (who was dismissed on motion for summary judgment), and the plaintiffs had altered the natural flow of water by adding truck loads of soil to elevate their respective grades, defendants cannot be held liable. The record here clearly shows that plaintiffs’ land was higher in elevation than that of the defendants, and that the only alteration of the natural flow of surface drainage was to cause it to run in a ditch along the lot line between plaintiffs’ and Rodi’s parcels which it did until obstructed by defendants’ acts.

As the owner of the dominant estate, plaintiffs were entitled to uninterrupted flow of surface waters from their property across the lower or servient lands of the Dejongs. Lambert v. Alcorn, 144 Ill. 313, 325; Mauvaisterre Dist. v. Wabash Ry. Co., 299 Ill. 299, 309.

The manifest weight of the evidence is that the defendant, Alvin W. Dejong, violated plaintiffs’ right to such flow by blocking the natural drainage along the lot line. However, there is no evidence that defendant, Arlene J. Dejong, caused the obstruction or is liable to the plaintiffs. The only basis asserted by the plaintiffs for her liability is testimony by the plaintiff’s wife that one “red tag from the village of Oakbrook” was “pulled down” by defendant, Arlene J. Dejong. (The term “red tag” apparently refers to a so-called “stop order” issued by the village to call attention to the drainage condition). There is no evidence in the record whatever that she directly or indirectly caused the obstruction which resulted in the back-up of surface waters on plaintiffs’ land. The court therefore erred in entering judgment against her.

There was sufficient evidence, however, to establish that Alvin W. Dejong was responsible for the obstruction which resulted in such accumulation and back-up, and plaintiffs are entitled to recover damages from defendant, Alvin W. Dejong, for the loss sustained by them.

FinaHy, defendants contend the damages were excessive and that there is no basis for the award of punitive damages. The complaint asked $10,000 “for the actual damages sustained by the plaintiffs” and $100,000 “for exemplary damages.” In its judgment the trial court assessed $1,470 as “actual damages” and $3,000 as “general damages” for “loss of use of plaintiffs’ yard”, “offensive odors”, possible “health hazards”, and “unsightly appearance.”

As to actual damages of $1,470 the evidence offered by the plaintiff as to replacement value of trees, shrubs and bushes is unrefuted. As to so-caHed general damages, the evidence indicates that it was only on the southeast comer of plaintiffs’ yard (where plaintiffs’ trees and shrubs were located) where water was standing from September 19, 1967 to June 19, 1968, especiaHy following the heavy rains in September of that year and the spring thaw. Plaintiff, Thaddeus S. Pierce, testified that “he was deprived of the use” of that portion of the yard because of his children’s inability to use that portion to play on. The “offensive odors” and “unsightly appearance” as to which he testified could be attributable on the record to a humus pile maintained by plaintiffs, where they placed organic materials to decompose for use in their garden. There was no evidence concerning health hazard. We find no support in the record for awarding actual damages beyond the $1,470 assessed by the trial court, and the court erred in making an additional award of $3,000. To that extent the judgment was excessive.

We turn finaHy to the award of $5,000 as punitive damages. Punitive damages are not “a favorite in tire law” and are allowable only where the conduct is accompanied by aggravated circumstances such as willfulness, malice, fraud, or violence. (City of Chicago v. Shayne (1964), 46 Ill.App.2d 33, 38; Eshelman v. Rawalt (1921), 298 Ill. 192, 196-197; Wetmore v. Ladies of Loretto (1966), 73 Ill.App.2d 454, 467.) There is no evidence in this record as the trial court observed in its opinion “that defendants or any of them set out with deliberate intent to harm anyone’s property or inflict any damage on the plaintiffs.” Indeed, the record shows that before the case came to trial the condition complained of was corrected by defendant, Alvin W. Dejong. The delay in correcting it does not constitute willfulness or any other element required to justify allowance of punitive damages. The court erred in awarding punitive damages in the sum of $5,000 and in entering judgment against defendant Arlene J. Dejong. Judgment should only have been entered in the sum of $1,470 and only against defendant Alvin W. Dejong.

Judgment is entered in this court for the plaintiffs and against the defendant, Alvin W. Dejong, for the sum of $1,470 and costs and judgment is vacated as to defendant, Arlene J. Dejong.

Affirmed in part; vacated in part, and judgment entered.

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


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence H. Porter, Defendant-Appellant.
    (No. 72-187;
    Third District —
    August 24, 1973.

      James Geis, Deputy Defender, of Ottawa, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Lawrence H. Porter appeals from judgments and sentences following a conviction for rape and burglary in a jury trial in the Circuit Court of Kankakee County. Porter was sentenced to serve terms of not less than five (5) nor more than ten (10) years on each of the two counts of rape and burglary with the terms to be served concurrently.

It is contended that the State did not prove defendant guilty of rape and burglary beyond a reasonable doubt. Complaining witness and defendant testified in direct conflict and told divergent stories. The complaining witness, Betty Logsdon, on the 14th day of July 1971, the date in question, lived alone in an apartment on the second floor of an apartment building. She was 5'5" tall and weighed 114 pounds. Porter was approximately 5T0" tall and weighed approximately 135 pounds. Miss Logsdon testified that she went to sleep on July 13, 1971, at about 10:30 P.M. She awoke at about 4:00 A.M. on July 14, 1971, and found Porter sitting on her bed to her right as she lay on her back with the bed sheet and spread covering her to her neck. Porter was lying halfway over her with his arm across her and his feet on the floor. She was wearing panties at the time.

As Miss Logsdon awoke she stated that Porter said, “Oh, Joan, Honey, I’m sorry I’m drunk and home so late.” Miss Logsdon told Porter he was in the wrong apartment. He said, “You’re right. Honest to God, I’m sorry that I scared you.” The girl asked Porter to leave and also asked him how he had entered. He said he came through the doorway. She told him that was not true because she had locked the door. She noticed that the bedroom curtains were blowing and the screen had been pulled out. She told Porter he had come through the window and he admitted that he had come in through the window.

Porter then said that he wanted to meet her for a long time but had not known how. He repeatedly said he was sorry he had threatened her and would not hurt her. During this period of approximately half an hour she was on her bed with the sheet and spread pulled up to her neck. She continuously asked Porter to leave. He said that first he had to calm down. She asked him several times to leave the bedroom so she could dress. He finally left the bedroom and stood outside the bedroom door with the door ajar five or six inches. Miss Logsdon dressed herself in jeans and a terrycloth top. She was not wearing shoes. She turned on the bedroom light and went into her living room. Porter sat on the living room couch approximately 12 to 15 feet from the bedroom door. Miss Logsdon walked to the opposite end of the couch, got her cigarettes and leaned against the stereo. The stereo is located directly across the room from the outside door to the apartment. Miss Logsdon kept asking Porter to leave. She said she was tired and had to work the next day. He said he would leave when he finished his cigarette. He repeated that he wanted to meet her. He then said he wanted a drink, and she said he would have to go elsewhere. He lit another cigarette and said he woulc leave when he finished it.

Miss Logsdon said that he noticed that her hands were shaking; that he told her not to be afraid, and that he would not hurt her. He said he would leave if she gave him a glass of water. When she was in the kitchen to get the water, she found Porter standing at the door. He grabbed her by the arm, displayed a knife-like object, with a four-inch blade, and told her, “Now, get to the bedroom. You know why I am here.” She asked Porter to leave but he responded he did not want to hurt her but he could if he had to. “It’s something that I have to do, so quit stalling and let’s get it over with,” he said.

Miss Logsdon pleaded with Porter to discard the weapon. He said he would not have to use it if she did what he said. He took the girl to the sliding doors leading from the apartment to the balcony, pushed the doors open and laid the weapon outside on the balcony. She insisted that he throw the weapon over the balcony and said that, if he did, she would not scream. As she tried to puU away from him, he said, “I can choke you to death if I have to.” He said that even though he had discarded the weapon, she still would have to do what he wanted. He emphasized his threat by saying, “You know what happened five years ago tonight? That was the night Richard Speck murdered the nurses in Chicago. I don’t want that to happen to you. I don’t want to hurt you, but I can.”

Although Miss Logsdon kept begging Porter to leave her alone he ordered her to go to the bedroom. While holding her arm he said he was thirsty and pulled her into the kitchen. She tried to obtain a knife, but he knocked it from her hand, told her to quit stalling, and, while holding her by the arm and around the neck, pushed her into the bedroom. Miss Logsdon was crying. While he held her, Porter forcibly removed her pants and pushed her back onto the bed. He said he would hurt her if she screamed. She attempted to push him away with her free arm and continued to get him to leave her alone. He then used his knees to force apart her closed legs and had intercourse with her, with one arm across her throat. The struggle and the intercourse lasted approximately 15 minutes. Following the act of intercourse, Porter apologized but said it was something he had to do. He then said he was thirsty and obtained a coke in the kitchen and poured it into one glass for him and one for her. Still holding her by the arm, he took her back to the bedroom and said he would have to tie her arms and feet because he knew she would call the police. She asked him just to leave and said she would not report the incident to the police. The time was approximately 5:30 A.M. Porter then went into the bathroom. Miss Logsdon dressed herself in her jeans, without shoes or panties, unlocked the front door, and went to the car. She drove to the police station immediately. The police testified that she was crying and sobbing, barefoot, and with her hair in disarray when she came to the police station shortly after 6:00 A.M. saying that she had been raped. The police took her to the hospital for examination and then returned with her to the police station to take her statement.

Defendant Lawrence H. Porter was not arrested as a suspect until he surrendered voluntarily to the police in the middle of August. He said he was surrendering because he was involved in the incident, and that a man who had been identified as the assailant by Miss Logsdon in a line-up on August 11, 1971, had nothing to do with it. Porter said his conscience bothered him. Porter furnished a statement of his version as to what had occurred. His statement was admitted into evidence at the trial. His testimony at the trial was to the same effect.

In Porter’s testimony, he stated that he left a bar shortly after 2:00 A.M. on the morning in question and that while proceeding to his home he saw a girl arising from grass along the street shortly after an automobile had left the vicinity. He asked her if she was all right and if she wanted to go to a hospital. She was wearing a pinkish robe at the time. She asked him to walk her to her door and he agreed, but the door was locked. He suggested she ask the manager for a key but she said she had been locked out before and asked for a screwdriver. He went to his car, obtained a brass rod he used in his work and, at the insistence of the girl, put it in the lefthand corner of the bedroom window, flipped the screen off, opened the window, got in and opened the front door for her.

He stated he was going to leave but that she asked him to stay for 10 or 15 minutes. He said he could not stay because his wife was waiting. She asked that he stay just a few minutes, because she did not want “that kid” to come back. He agreed. As he sat on the couch, she sat on the stereo about 4 feet in front of him. He stated her legs were apart and her robe was half opened at the legs. He could see that she was not wearing panties. He became nervous, his mouth got dry and he asked for a glass of water. She offered him vodka, but he said he could not drink whiskey. She got him a glass of water and she again leaned against the stereo. She asked his name and he said it was Lawrence Porter.

Porter stated he was ready to leave when Miss Logsdon asked him to lend her $20. When he said he had no money, she sat down next to him, put her arm around him, and asked him if he would make love for $20. When he arose to leave, she stood and walked to the door ahead of him and asked if it would be worth $20 for her not to “holler rape.” He then gave her the $20 and said, “Here, let’s get it over with,” and went into the bedroom. She lay on the bed and opened her robe. He undressed and got into bed with her where they had intercourse, he stated. When they finished she asked if he wanted to split a Pepsi. They sat on the bed and conversed. He then took his clothes into the bathroom and washed and dressed and when he emerged, no one was there.

Paul McDowell testified as a rebuttal witness for the State. He was a radio station announcer and lived at apartment 18 in the building in which the incident took place. Miss Logsdon lived in apartment 19. McDowell testified that he arrived home from work about 11:15 P.M. on the night in question and then listened alone to his stereo until about 3:00 A.M. Between 2:00 and 2:15 A.M. he heard a ripping sound at the sliding glass door of his apartment. He remembered the time because he had been timing a record. He went to the regular door next to the glass door and he saw Porter standing on the balcony between the two doors. Porter asked if a female lived in McDowell’s apartment. McDowell said she did not. Porter walked away. McDowell then went outside and found that the screen on his apartment sliding glass door had been cut and pushed back. McDowell knew this condition had not existed prior to that time, because the screen had been locked. McDowell said he called his landlord but not the police.

With respect to the issues of fact (and the conflicting testimony), the jury, as finders of fact in criminal litigation, normally is entitled to believe or disbelieve such evidence as it wishes, so long as the evidence, as a matter of law, raises a reasonable inference of guilt. (People v. Hoffman, 45 Ill.2d 221, 258 N.E.2d 326.) When the criminal trial involves a crime of rape, we recognize that somewhat different rules apply to determine compliance with the standard of proof. Where the act of sexual intercourse is not questioned, the accused inherently is vulnerable to conviction on the basis of facts, known only to the complainant and the accused, which if accorded a slightly different interpretation, could establish either guilt or innocence. (People v. Faulisi, 25 Ill.2d 457,185 N.E.2d 211.) By reason of this situation, the testimony of a prosecutrix is required to be “clear and convincing” or independently corroborated. (People v. Scott, 407 Ill. 301, 95 N.E.2d 315.) To establish the crime of rape, the intercourse must have been forcible and against the will of the victim although useless or foolhardy acts of resistance are not necessary. The evidence should demonstrate that the act was against her will. People v. DeFrates, 33 Ill.2d 190, 210 N.E.2d 467, 469.

While the complainant in the instant case did not scream, the jury could determine that she was frightened, particularly in view of the implied threats made by the defendant in the cause. There was evidence that the prosecuting witness attempted to obtain a knife but was prevented from doing so by defendant. Miss Logsdon was never concealed from Porter during the entire period even while she was dressing since her bedroom door was ajar. There was also substantial corroborative evidence in the record of Miss Logsdon’s version through the police officers description of Miss Logsdon’s appearance and emotional state, and the circumstance that there was immediate complaint. (People v. Jackson, 3 Ill.App.3d 303, 279 N.E.2d 8.) The evidence of forcible entry to her apartment, as shown by photographs, was also corroborative. The fact that no medical evidence was introduced was not a basis for reversal. Medical testimony is not indispensable to a rape conviction. People v. Jackson, 3 Ill.App.3d 303, 279 N.E.2d 8.

The record also sufficiently shows evidence that defendant Porter was guilty of burglary, if the jury believed the testimony as presented. It is obvious that defendant entered the apartment without authority and that Porter’s presence in the apartment was first detected when he was lying across Miss Logsdon as she was awakened at 4:00 o’clock in the morning.

Defendant argues that the trial court erred in allowing the prosecution to introduce new evidence in rebuttal when that evidence did not contradict or expand any testimony which had been presented previously and when the rebuttal witness had not been disclosed to the defense prior to the trial as a witness to be called by the State. We do not believe that this is a sound basis for reversal on the record. The State first learned of the existence of McDowell as a potential witness, after the trial had commenced. The prosecutor, outside the presence of the jury, advised the court he intended to call McDowell in rebuttal. The court ordered an overnight recess to allow defense counsel to interrogate McDowell. Defense counsel did in fact interview McDowell. Prior to testifying, McDowell was required to submit to a voir dire examination during which he explained he had no contact with the police or prosecutor’s office until Tuesday of the week of the trial. Section 114 — 9 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 114 — 9), requiring the State, on motion of defendant, to provide to defendant a list of witnesses for the State, does not apply to rebuttal witnesses as specifically shown in section 114 — 9(c). Rule 412 of Illinois Supreme Court Rules (Ill. Rev. Stat. 1971, ch. 110A, §412) implements section 114 — 9 referred to. The Committee Comments in the Illinois Revised Statutes Annotated as to Rule 412 indicate that Rule 412 is not intended to abrogate the exception set forth in Section 114 — 9(c). This exception is applicable even if the rebuttal witness in question might also have presented testimony which could have been used in the State’s case in chief. (People v. Howze, 7 Ill.App.3d 60, 286 N.E.2d 507.) McDowell’s testimony directly refuted Porter’s testimony with respect to Porter’s actions at approximately 2:00 A.M. on July 14. It was, therefore, properly admitted in rebuttal in the discretion of the trial court. The trial court extended to defense every reasonable safeguard which was available under the circumstances to preclude surprise.

It is also contended that McDowell’s testimony was grossly prejudicial for the reason that it referred to Porter’s commission of a crime other than those for which he was being tried. While it is true that evidence of the commission of an offense which is not the crime for which defendant is being tried might become inflammatory and prejudicial and that a vigorous effort should generally be made to avoid the prejudicial effect of such evidence, evidence of such activities, however, is not inadmissible under all circumstances. At least one exception which has been established by the Supreme Court of this State from the general rule is applicable in the cause before us. Evidence which is relevant for purposes other than to show defendant’s propensity to commit crimes is admissible even though it necessarily includes evidence of defendant’s commission of another crime. (People v. Cole, 29 Ill.2d 501, 194 N.E.2d 269; People v. Armstrong, 41 Ill.2d 390, 243 N.E.2d 825.) McDowell’s testimony tended to contradict Porter’s assertions as to how, in the early morning of July 14, Porter gained access to complainant’s apartment. It also tended to show that Porter was looking for a woman and was trying to gain entrance to her apartment by forcible means without authority. It likewise tended to show that Porter had the knowledge and the tendency to gain access to complainant’s apartment in precisely the manner in which complainant testified he did. Since Porter himself had testified in his defense telling a different story, the State’s use of McDowell in the rebuttal portion of the case was not only proper but it became essential to the State’s case. (See: People v. Tranowski, 20 Ill.2d 11, 169 N.E.2d 347; People v. Brown, 26 Ill.2d 308, 286 N.E.2d 321.) No reasonable means existed for McDowell to delete all reference as to how he happened to encounter Porter and still have his testimony serve the function of refuting Porter’s contentions and corroborate the testimony of complainant. When the need for relevancy and materiality of McDowell’s testimony is weighed against the potential of such testimony for arousing the jury we must conclude that the trial court exercised proper discretion in admitting such evidence.

The jury received separate jmy forms at the close of the trial, each without objection from defense counsel and with defense counsel having tendered no requested alternates. The four forms were “not guilty”, “guilty of rape and burglary”, “guilty of rape”, and “guilty of burglary”. Defendant now asserts that the failure of the court, sua sponte, if necessary, to give separate not guilty forms for each crime, denied defendant a fair trial and due process. Defendant contends that the forms inherently made it difficult for the jmy to return a verdict of guilty of one of the two crimes charged and not guilty of the other. This court recently considered this issue in People v. Lilly, 9 Ill.App.3d 46, 291

N.E.2d 207. In that case, defendant was tried for rape and indecent liberties. The jury received three verdict forms, “guilty of rape”, “guilty of indecent liberties”, and “not guilty”. Defendant in Lilly contended that it was the duty of the court to give a not guilty form of verdict for each charged crime. We disposed of the contention there by quoting the Illinois Supreme Court in People v. Springs, 51 Ill.2d 418, 283 N.E.2d 225, 229:

“We have repeatedly announced the rule that the court is under no duty to give instructions not requested by counsel.”

A remaining issue is whether, as a matter of law, Porter could be sentenced for both burglary and rape. When plural crimes do not arise from the same “conduct”, a court may impose a separate consecutive or concurrent sentence for each crime. (Ill. Rev. Stat. 1971, ch. 38, § 1 — 7(m); retained in Unified Code of Corrections. Ill. Rev. Stat., 1972 Supp., ch. 38, §1005 — 8—4.) In the Committee Comments to section 1 — 7(m) of the Criminal Code of 1961 (S.H.A. ch. 38, §1 — 7(m)), as noted in People v. Stewart, 45 Ill.2d 310, 359 N.E.2d 24, 25, 26; and People v. Ritchie, 66 Ill.App.2d 302, 213 N.E.2d 651, 657, affd, 36 Ill.2d 392: 6 ° if the offenses resulted from the same conduct the defendant may not be sentenced on [each].” It is, therefore, argued by defendant Porter, that if the burglary conviction, considered by itself, can be sustained as a matter of law, then he must have been regarded as having entered the apartment with the intent to commit rape. He also argues that if the rape conviction considered by itself is to be sustained, he must have been regarded as having committed that offense. He, therefore, concludes that the two crimes necessarily had to relate to the same “conduct” within the meaning of section 1 — 7(m) referred to.

Even if we were to assume that Porter entered the apartment with the intention of committing rape and that without ever changing that intention he moved directly to the consummation of his objective, the recent IHinois Supreme Comt case of People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294, controls our disposition of this issue. In that case defendant Moore entered his victim’s room without authority. Promptly, without deviation from his obvious purpose, he raped the victim and committed deviate sexual assault and robbery. The trial court sentenced him to concurrent sentences on each crime. In affirming the trial court and disposing of the issue that is now before us, the IHinois Supreme Court stated;

“Each of the offenses of rape, robbery and burglary, although committed in the course of the same transaction, involves conduct clearly divisible from the conduct which constitutes the Other offenses,” 51 Ill.2d 79, 87-88,

The test, therefore, to be applied then is not whether the conduct was a product of a singleminded purpose or single motive, or “the same transaction” but rather whether we are considering “separate offenses”, none of which is included as a lesser offense within a greater offense. According to the Moore case, this involves separate “conduct.” Because the offense of burglary is separable from the offense of rape, on the basis of the separate conduct required to establish each of them, defendant was properly sentenced for both burglary and rape.

The final issue which we can consider is the propriety of the sentences. We agree that the defendant is correct in asserting that Illinois Unified Code of Corrections, even though not in effect at the time of sentencing of defendant, is nevertheless applicable to cases on appeal where final disposition has not yet been rendered on appeal. (People v. Chupich, 53 III.2d 572; Ill. Unified Code of Corrections, sec. 8 — 2—4; Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1008 — 2—4.) Under the Illinois Unified Code of Corrections, burglary is a so-called “Class 2” felony punishable by imprisonment for not less than one nor more than 20 years (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005 — 8—1(c)(3)). Under prior law (Ill. Rev. Stat. 1971, ch. 38 § 19 — 1) the punishment was imprisonment for one to an indeterminate number of years. The new Code limits the minimum sentence to not more than Ys of the maximum. Since the maximum sentence imposed is 10 years, we should reduce the minimum sentence in the instant case for the burglary offense to 3 years and 4 months.

With respect to the minimum sentence of 5 years on the rape conviction, we note from the record that defendant had not been convicted previously of any crime and that he had voluntarily surrendered himself to the police. Due to the illness of the trial judge, another judge, who had not become familiar at the trial with the facts of the case through personal observation of witnesses, actually sentenced the defendant. We note that under the new Illinois Unified Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, § 1005 — 8—1(c)(2)), the minimum term for rape as a “Class 1” felony is required to be set at 4 years, “unless the court having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term.” Because of the circumstance that the sentencing judge presumably had no greater familiarity with the case than do we on appeal, we believe that the new Code in this instance contains statutory advice with respect to the minimum sentence for rape which should be applied in the instant case upon the basis of the record, in view of the fact that defendant had no prior conviction and voluntarily came to the police to disclose his involvement, presumably to avoid a miscarriage of justice. The minimum sentence, therefore, for the crime of rape will be reduced to a term of 4 years with the maximum sentence remaining at 10 years.

The judgments of conviction, therefore, will be affirmed but the sentences are modified to provide that the sentences shall be served concurrently, with the burglary sentence to be not less than 3 years and 4 months nor more than 10 years and the rape sentence to be not less than 4 years nor more than 10 years.

Sentences modified and judgments affirmed.

DIXON and SCOTT, JJ., concur.