text:
    The People of the State of Illinois, Appellee, v. Conrad S. Smith (Impleaded), Appellant.
    Gen. No. 65-21.
    Second District.
    January 3, 1966.

      John R. Snively, of Rockford, for appellant.
    William R. Nash, State’s Attorney, and Alfred W. Cowan, Jr., Assistant State’s Attorney, both of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant, Conrad S. Smith, was indicted for armed robbery, tried by a jury, found guilty and sentenced to the Illinois State Penitentiary for a term of not less than five nor more than twenty years.

On the morning of June 10, 1964, the defendant and a companion entered the Domino Liquor Store in Rockford, Illinois. One Ann Ginestra, an employee of the liquor store, and one Patrick Feeley, a wholesale liquor salesman, were the only ones in the store at the time.

Upon entering the store, one of the pair approached Ann Ginestra and Patrick Feeley, and while holding a gun, announced that it was a stickup. Ginestra whs then ordered to the safe to get the money and Feeley, after being relieved of his own money, was ordered into a cooler. In the meantime, Ann Ginestra removed a cigar box from the safe containing both coin and currency and placed it, together with money from the cash register, in a paper sack and gave it to one of the pair as directed.

As the pair fled, a description was obtained of the getaway car and immediately telephoned to the police. Within a matter of minutes the car was spotted by a patrol car a few blocks from the liquor store, pursued, and the defendant and his companion arrested. - The arresting officers found a revolver, matching the description of that one used in the robbery, and a cigar box containing money in a paper sack under the front seat of the car.

The police questioned the defendant at the police station and at 1:00 p. m., one hour after his arrest, he signed a confession.

The defendant appeals assigning numerous alleged errors which we shall consider in the order presented.

Defendant complains that the indictment herein is fatally defective in that it fails to contain a recitation, in the terminology of section 716 of the Criminal Code of 1874, that the grand jurors “chosen, selected and sworn, in and for the County of -, in the name and by the authority of the people of the State of Illinois, upon their oaths, present.” This contention is predicated upon a section of the old Criminal Code which was repealed as of January 1, 1964, and supplanted by section 111-8 of the Code of Criminal Procedure of 1963; and the latter section contains no requirement that the commencement of an indictment be in any particular form or contain any particular language. It is in terms of section 111-3 that the indictment before us, returned on June 30, 1964, must be examined. Additionally, even in considering the sufficiency of indictments under section 716 the courts have held that the caption or commencement is not a part of an indictment and has no bearing upon the sufficiency of the charge. The People v. Shaw, 300 Ill 451, 452, 133 NE 208 (1921). It is the body of the indictment rather than the caption or commencement which controls. The People v. Sellers, 30 Ill2d 221, 223, 196 NE2d 481 (1964).

The defendant next contends that the indictment herein is fatally defective in that it does not state an offense, and, particularly, that it does not comply with the provisions of section 111-3 (a) (3), (4) of the Code of Criminal Procedure of 1963.

Considering first the contention that the indictment does not set forth the nature and elements of the offense charged, a mere reading of the indictment discloses that it charges “That on the 10th day of June, 1964, in the County of Winnebago and State of Illinois . . . ,” the defendant, “committed the offense of Armed Robbery, in that (he), by threatening the imminent use of force or by the use of force and while armed with a dangerous weapon, to-wit: a certain-revolver, took certain money of the legal money and currency of the United States of America from the person or presence of Ann Ginestra, in violation of Paragraph 18-2, Chapter 38, Illinois Revised Statutes.” It is impossible for us to conceive how the nature and elements of the offense charged could have been more properly and fully set forth; each and every element of armed robbery is properly stated in the indictment. The contention that the indictment is faulty in that it did not set forth or describe the value of the property taken is without merit as value is not an element of robbery, provided the property has some value as “currency of the United States of America” surely has. The People v. Flaherty, 396 Ill 304, 311, 71 NE2d 779 (1947); People v. Smith, 63 Ill App2d 369 (2nd Dist, 1965), 211 NE2d 456, 462.

The contention that the indictment is fatally defective for not stating the time and place of the offense in accordance with section 111-3 (a) (4) of the Code of Criminal Procedure, 1963, has recently been answered by our Supreme Court. In The People v. Blanchett, 33 Ill 2d 527, 212 NE2d 97, an information, almost identical to the indictment in the case at bar, was held sufficient to allege the offense of armed robbery.

Error is assigned due to the alleged prejudicial comments of the trial judge. The only thing we differ with the defendant about in relation to his allegation concerning these remarks and comments is his conclusion. Thus, there is no question that a defendant is entitled to a fair trial, that it is the trial judge’s duty to see that the defendant has such a trial, and that no remark or comment should be made by the trial judge to cause prejudice or hostility towárds the defendant. There is, however, likewise no question that counsel by his conduct or otherwise cannot elicit an admonition from the trial judge and then hope to hide behind it as error on review. People v. Smith, supra, 459.

We have carefully read the record before us and find no remark or comment that we feel could have created any prejudice or .hostility in the minds of the jury against the defendant. We further find no comment or remark directed at the defendant himself that could possibly be construed as an expression of the opinion of the court concerning evidence in the case.

The defendant next complains that a certain cigar box containing money was improperly admitted in evidence and that this constitutes reversible error. This position apparently is predicated upon defendant’s contention that the cigar box and money was not identified. The difficulty we find with this contention, however, is that it completely ignores the testimony of the witnesses Ginestra and arresting officer Haeferer. As we read the record, Ginestra, both on direct and cross-examination, quite clearly identified the cigar box and the money as that which she was ordered to remove from the safe and the cash register, place in the paper sack, and give to the robber; equally clear is the testimony of Haeferer to the effect that the cigar box and money was that found by him in a paper sack beneath the front seat of the car in which the defendant and his companion were riding.

If the defendant’s objection be based upon the lack of positive identification that the cigar box and money which was People’s Exhibit 3 was the same cigar box and money taken from the liquor store, such an objection is properly addressed to the weight of the evidence and not its admissibility.

Thus, in the case of The People v. Weaver, 18 Ill2d 108, 163 NE2d 483 (1959), in considering the question of the identification of the proceeds of a larceny such as coins the court said at page 113.

“When items such as these are the proceeds of a larceny or robbery, their identity as being those in the possession of the accused must necessarily be drawn from other facts satisfactorily proved. In such cases the question of the identity of the property is ordinarily one of fact for the jury’s determination.”

We are satisfied that the cigar box and money were identified, that they were sufficiently connected with the crime and the defendant, and that they were relevant. People’s Exhibit 8 was properly admitted in evidence. See also, The People v. Sellers, supra; People v. Smith, supra, 460.

The defendant next contends that his confession is inadmissible as having been obtained under circumstances violative of his constitutional rights. Citing as authority Escobedo v. Illinois, 378 US 478, it is his contention that a confession elicited by police from a defendant who has not been first advised of his right to counsel and his right to remain silent is inadmissible. This is neither the holding of Escobedo nor its interpretation by the Supreme Court of this state. In the Escobedo case, the United States Supreme Court held that the refusal of the request of the accused to consult with his counsel who was then present, coupled with the failure to warn the accused of his right to remain silent, amounted to a denial of the assistance of counsel in violation of the Sixth Amendment to the Constitution of the United States made applicable to the states by the Fourteenth Amendment. Escobedo, then, did not pass upon the facts that are presented in the case at bar. The same factual situation did exist, however, in The People v. Lewis, 32 Ill2d 391, 207 NE2d 65 (1965), where a fifteen-year-old defendant was interrogated by an Assistant State’s Attorney and was neither advised of his right to remain silent nor his right to counsel. Here, the court said at pages 393, 394:

“There was no evidence of improper conduct and, in the absence of a request by the defendant, the failure of the authorities to advise him of his right to counsel and Ms right to remain silent does not render the confession inadmissible.”

Although for purposes of our discussion of the effect of the failure to advise the defendant of his right to counsel and to remain silent we have assumed that the defendant was not so advised, we are not unmindful of the testimony of the police officer that the defendant understood that he had a right to counsel, nor that in the body of the confession itself there is a statement that the defendant understood that it could be used against him in a court of law. We have further noted that the confession here questioned was given by the defendant within one hour after his apprehension, and that the question of its voluntariness was not even raised.

The defendant next suggests that there exists a fatal variance between the allegations of the indictment and the proof. He here contends that there is no proof that the money had value or that the money was money of the legal money and currency of the United States of America. Armed robbery, however, is defined as the taking of property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a dangerous weapon. And the term “property” as herein used is defined as including money. Ill Rev Stats ch 38, section 15-1 (1963). Consequently, there is no necessity of proof that the money had value. From the testimony of the victim, as well as from the money itself, as admitted, we are satisfied that there was ample proof that it was a part of the legal money and currency of the United States of America. See People v. Smith, supra, 462.

It is the defendant’s next contention that there is no proof of the corpus delicti, and that the evidence is insufficient to sustain the conviction. Based upon our examination of the record we cannot agree.

The victim of the crime and two other eyewitnesses identified the defendant at the trial. The victim testified to the effect that the defendant stood within a few feet from her with a gun at his side and ordered her to go to the safe and get the money; that while the defendant placed the liquor salesman and customers in the cooler, his accomplice went with her to the safe and ordered her to give him the money. The accomplice testified at the trial that he and the defendant held up the liquor store together. Within a matter of minutes after the robbery, the police stopped a vehicle matching the description of the getaway car and found the defendant riding therein with the gun and money under the front seat. The money, cigar box and gun found in the car were identified at the trial. Defendant’s signed confession, corroborating the testimony of the victim and his accomplice, was received in evidence.

We are fully satisfied that every essential element of the offense has been proven beyond a reasonable doubt. There exists no reasonable doubt of the defendant’s guilt.

Finally the defendant urges that the punishment imposed by the trial court was excessive and should be reduced. The abstract and record fail to disclose any hearing in mitigation and aggravation. There is nothing to disclose the background of the defendant, or other evidence upon which the trial court exercised its discretion. Absent a clear showing of abuse of discretion, the sentence of the trial court will not be disturbed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


source: Caselaw Access Project

author: COEYN, J.

license: Public Domain

text:
    George Hollis, et al., Plaintiffs-Respondents, v. Raymond Mateika, Defendant-Petitioner.
    Gen. No. 65-22.
    Third District.
    January 3, 1966.
    Rehearing denied February 3, 1966.
    Zwanzig, Thompson, Lanuti, Bower & Zwanzig, of Ottawa (John David Zwanzig, of counsel), for defendant-petitioner.
    Kevin D. Kelly, of LaSalle (William H. Herring, of Peoria, of counsel), for plaintiff s-respondents.
   COEYN, J.

Plaintiffs, George Hollis and Geneva Hollis, husband and wife, brought this personal injury suit against the defendant, Eaymond Mateika, in the Circuit Court of LaSalle County. A jury returned verdicts in favor of the defendant, and the trial judge, acting upon plaintiffs’ post-trial motion, granted a new trial. Defendants were then granted leave to appeal by this court pursuant to the provisions of Supreme Court Eule 30.

On April 28, 1962, at approximately 7:30 p. m., plaintiffs were proceeding in a southerly direction on Eoute 51 south from Mendota. Earlier that evening there had been a very heavy rain fall which had caused the railroad underpass just south of Mendota to become flooded. Plaintiffs were able to proceed through this underpass, but were forced to stop their vehicle about three-quarters of a mile south of Mendota, as the heavy rain had caused a creek to overflow. There was about eighteen inches of water over the highway at this point which had caused several automobiles to bunch up. A vehicle operated by one Mr. Caesar was stalled in the southbound lane, and plaintiffs, therefore, stopped their car on the southbound lane approximately thirty feet behind the Caesar car. The plaintiffs’ car, as well as the Caesar car and the vehicles in the northbound lane, had their head and tail lights lit. It was dark and raining lightly. There is little variation in either the grade or course of the highway at this location.

William Cenkar, who lived nearby, noticed that a number of cars had stopped or stalled on the overflowed highway, and consequently placed flares on the highway. One of these flares was placed about one hundred feet behind the plaintiffs’ car. Cenkar saw the defendant’s vehicle come down the highway and collide with the rear of the plaintiffs’ vehicle, thereby forcing it forward into the rear of the Caesar car. Both plaintiffs sustained whip lash type injuries as a result of this collision.

Mateika testified that he proceeded through the flooded underpass at Mendota, and when a quarter of a mile from the scene of the accident, he saw headlights ahead, and therefore slowed down so that he was going forty to forty-five miles per hour when two hundred feet behind plaintiffs’ car. He stated that he attempted unsuccessfully to brake his automobile when he was about thirty feet behind the Hollis car, and that he had not seen any of the stopped or stalled cars before then. A State Highway Patrolman charged defendant with driving too fast for conditions, to which charge the defendant subsequently entered a plea of guilty.

The trial judge granted the plaintiffs a new trial, stating that the jury verdict for the defendant “was contrary to the manifest weight of the evidence and resulted in a substantial miscarriage of justice.” The trial judge obviously felt that the conclusions reached by the jury were unreasonable and not supported by the evidence. The sole issue to be determined in this appeal is whether in so doing the court abused its discretion.

A trial court’s decision to grant a new trial will not be disturbed by a court of review unless a clear abuse of discretion is affirmatively shown. Also, a trial court will be allowed greater latitude in granting a new trial than in denying one, and when the issue involved is one of fact, the trial court’s determination generally will be affirmed. Thomas v. Chicago Transit Authority, 16 Ill App2d 470, 148 NE2d 883; In re Estate of Velie, 318 Ill App 550, 48 NE2d 431. The reason for these rules is that the trial court has had the opportunity to observe the witnesses and to consider the conduct of the trial as a whole, and is therefore in a better position to determine if justice requires the granting of a new trial. Duff v. Ewing, 60 Ill App2d 382, 208 NE2d 320.

In the instant case there is little conflict in the evidence on the issue of liability. It is clear that the defendant had encountered flooded conditions on the highway three-quarters of a mile from the point of impact, and that lights of stopped and of stalled vehicles, as well as flares, gave warning of a dangerous condition ahead. Yet the defendant, who admitted that he saw these vehicle lights ahead, when he was a quarter of a mile away, made no effort to stop until he was within thirty feet of the Hollis car, and was then required to rely on brakes which had just been driven through a flooded underpass. Under this state of evidence, we conclude that the trial court did not abuse its discretion in granting plaintiffs’ motion for a new trial.

Accordingly, the order of the Circuit Court of LaSalle County granting a new trial is affirmed, and this cause is remanded for a new trial.

Affirmed.

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


author: JUSTICE LYONS.

text:
    Margaret Kaput, a/k/a Marge Kaye, Plaintiff-Appellee, v. Walter Kaput, a/k/a Walter Kaye, Defendant-Appellant.
    Gen. Nos. 50,250, 50,622.
    First District, Second Division.
    January 4, 1966.

      Karras, Greene, Licastro & Licastro, of Chicago (Frank Licastro, Sr., of counsel), for appellant; Herbert F. Friedman, of Chicago, for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    Ann M. Frank, Plaintiff-Appellant, v. Raymond W. Davies, Defendant-Appellee.
    Gen. No. 49,981.
    First District, Third Division.
    January 6, 1966.
    Rehearing denied January 31, 1966.

      William J. Harte and John A. Doyle, of Chicago, for appellant.
    Treacy and Garbutt, of Chicago (E. J. Garbutt and Basil DeMeur, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a judgment entered on a jury verdict for Raymond W. Davies, now known as the defendant, in a personal injury case. The parties to this suit were involved in a head-on automobile collision. Davies was originally the plaintiff, and Ann M. Frank (now known as the plaintiff) was the defendant and eounterclaimant. The claim of Davies against Frank was disposed of and the suit then proceeded solely on the counter-claim of Frank against Davies, Frank being called the plaintiff and Davies called the defendant. In order that the jury might not suspect that Frank’s claim had originally been a counter-claim and that Davies’ claim had been settled, the court entered the following order:

“[A] protective order is hereby entered admonishing both the attorneys . . . that on and during the trial of the counterclaim in the above captioned law suit that no reference of any kind is to be made by the attorneys for the respective parties herein that any discussions of any kind was had of settlement or that a settlement was made or consummated in this law suit or that any cause of action other than the counterclaim was ever a part of this law suit.”

Thus Frank now seeks to recover from Davies for her injuries in the same action in which Davies had a claim against her which was disposed of without trial.

Plaintiff does not contend that the verdict was against the preponderance or manifest weight of the evidence. She contends that this was a close case on the facts and hence errors in the course of the trial should be carefully scrutinized by this court. The essential facts are as follows: The collision took place as plaintiff and defendant were proceeding in opposite directions on a two-lane highway. Both cars came to rest on defendant’s side of the road. A disinterested witness who had been traveling in a car immediately behind plaintiff’s car testified that plaintiff, driving at an irregular speed and weaving back and forth, went off the road to the right and spun back into the defendant’s lane, where she struck defendant. Defendant testified that plaintiff’s car came across to his side of the road and struck him. A sheriff’s deputy who investigated the accident testified that the debris was almost entirely on the defendant’s side. A private accident investigator who interviewed plaintiff in her hospital room testified that plaintiff admitted that the accident took place on defendant’s side. As against this, plaintiff was the only witness on her behalf. She testified that her car wheels ran onto the shoulder of the road and as she was returning to the pavement, the defendant who had been approaching in a zigzag fashion struck her on her side of the road. The cars, she says, then swung around and made a second impact on defendant’s side. It is our conclusion that the case is not close, but that the evidence strongly preponderates in favor of defendant.

The first error charged is violation of the pretrial order. This is based on questions put to plaintiff by defendant’s counsel, in which he inquired whether plaintiff had learned the defendant’s name from somebody who “served some papers on you on behalf of Mr. Davies,” and also on counsel’s statement in his closing árgument that:

“this was a very serious accident not only for Mrs. Frank but also for Mr. Davies. . . . You can’t hear about damages of Mr. Davies . . . because this is Mrs. Frank’s case against him. You can sue me, and I can sue back, and that’s the way it is in our country.”

The evident purpose of the order was to preclude reference to the settlement of the original claim. It does not forbid mention of a suit by Davies against Frank so long as it is not shown that such suit was “a part of this law suit” and by inference must have been settled. Neither the questions referred to nor the statement in the closing argument indicated that Davies had sued Frank and that a suit by Davies was a part of this case.

Plaintiff contends that the introduction of a photograph of the accident scene, which shows that defendant as well as plaintiff was injured, was prejudicial error. Plaintiff stipulated to the admission of the photograph. Likewise, no objection was made to a statement by defendant’s counsel, now cited as error, that plaintiff was reluctant to bring in certain witnesses. Plaintiff argues that a question pertaining to a prior injury to plaintiff’s head was improper. Her objection thereto was sustained. Plaintiff also contends that the private investigator who testified in behalf of defendant should not have been permitted to refer to a transcript of the hospital interview which was not admitted in evidence. He was plainly refreshing his recollection, and this was not error. Later in his testimony the witness actually read a short excerpt from the report, but no objection was made and the judge on his own motion put a stop to the reading. None of these matters which frequently occur in the course of a jury trial constitutes reversible error.

Finally, plaintiff contends that it was error for the trial judge to refuse a proffered instruction defining the burden of proof which was based on the Illinois Pattern Instructions. In our country, the most litigious in the world, it is beyond belief that a jury would not know its meaning. In Brennan v. Leshyn, 51 Ill App2d 132, 142, 201 NE2d 167, the court had occasion to pass on this question and held that the term is so commonly used that a jury may be presumed to understand it.

The judgment is affirmed.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Jackson, Defendant-Appellant.
    Gen. No. 49,990.
    First District, Third Division.
    January 6, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Albert Jackson was charged in a two-count indictment with robbery and with theft from the person of property valued at less than $150. At his nonjury trial the evidence disclosed that he had snatched a purse from the hands of its owner and that the purse and its contents were worth less than $150. He was found not guilty of robbery but guilty of theft from the person and was sentenced to the penitentiary for a term of three to nine years.

The defendant contends that he was improperly sentenced. His argument is that the present criminal code does not establish the offense of theft from the person; that his punishment, therefore, should have been determined by the value of• the stolen property; and'that a penalty longer than one year and a sentence to the penitentiary are incorrect.

The defendant was indicted, tried and convicted under section 16-1 of the Criminal Code of 1961 which in relevant part is as follows:

“Theft.
A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner . . . and ....
(1) Intends to deprive the owner permanently of the use or benefit of the property ....
“Penalty.
A person first convicted of theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both. A person convicted of such theft a second or subsequent time, or after a prior conviction of any type of theft, shall be imprisoned in the penitentiary from one to 5 years. A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.” Ill Rev Stats 1963, c 38, § 16-1.

The defendant is correct in his contention that this statute does not create a separate offense called “theft from the person,” but he is incorrect in his contention that he was improperly sentenced.

Section 16-1 describes the offense of theft only—and this was the precise purpose of the legislature in enacting this provision of the code. The purpose was to substitute a generic definition of theft for various statutes which particularized different kinds of larceny. Drafting Committee Comments, SHA, ch 38, sec 16. Theft from the person as a distinct crime (Ill Rev Stats 1939, ch 38, par 387; People v. Hoffman, 236 Ill App 1, (1925)) was abolished, as were other crimes such as the larceny of a motor vehicle, larceny of an animal, embezzlement, larceny of a lead pipe, larceny by bailee and the many other larcenies which were individually defined and prohibited in the code of 1874 and in its amendments and additions.

Section 16-1 defines the two elements necessary to constitute a theft: a proscribed act and the requisite intent or knowledge. A combination of any one of the enumerated acts and any one of the enumerated mental states describes the prohibited offense. Committee Comments, SHA, ch 38, sec 16-1. This definition is broad enough to encompass all forms of theft including purse-snatching and pocket-picking, and it does not conflict with section 1-3 of the Criminal Code of 1961 upon which the defendant relies and it does not contravene People v. Robinson, 372 Ill 503, 24 NE2d 376 (1939), which the defendant cites. Section 1-3 provides: “No conduct constitutes an offense unless it is described as an offense in this Code or in another statute of this State.” Ill Rev Stats 1963, ch 38, sec 1-3. The Robinson case states: “It is necessary that a statute creating an offense ... be so sufficiently specific as to show the prohibition intended and the punishment to be imposed upon the violator of the act.”

The legislature did not, as the defendant argues, attempt to create the crime of theft from the person in the penalty portion of section 16-1 rather than in the descriptive portion. The penalty portion merely makes distinctions between different grades of theft and provides aggravated penalties for aggravated degrees and forms of theft. Thus, one who steals more than $150 or who steals from the person of another may be imprisoned in the penitentiary; a penitentiary sentence is also provided for one convicted of repetitive thieving, while one who is convicted for the first time of theft of less than $150 is subject to imprisonment in a different institution, or to a fine, or both.

The test to be applied to a penal statute is whether it is sufficiently definite and certain to enable all men to know what acts are proscribed and what conduct will make them liable to punishment. People v. Green, 368 Ill 242, 13 NE2d 278 (1938); People v. Gill, 30 Ill App2d 32, 173 NE2d 568 (1961). The language of section 16-1 meets this test. Theft is explicitly described and the penalties for the offense are clearly set forth.

The defendant further argues that the words “theft from the person” are ambiguous because under section 2-15 of the Criminal Code such a theft could be from a corporation as well as from an individual. Section 2-15 states: “ ‘Person’ means an individual, public or private corporation, government, partnership or unincorporated association.” Ill Rev Stats 1963, ch 38, sec 2-15. We believe the meaning of the word “person” as used in the context of section 16-1 and in the indictment in the present case is unmistakable and that everyone would understand that it refers to an individual. The ambiguity the defendant sees is more the product of semantic ingenuity than valid statutory interpretation. A word must be construed in context to determine its meaning. People ex rel. Roan v. Wilson, 405 Ill 122, 90 NE2d 224 (1950); 2 Sutherland, Statutory Construction § 4703 (3rd Ed 1943). A word which appears more than once in a statute is presumed to have been used with the same meaning each time, absent an indication that a different meaning was intended. Moweaqua Coal Corp. v. Industrial Commission, 360 Ill 194, 195 NE 607 (1935). Applying this rule of construction to the provision of section 16-1 that “a person convicted of theft of property from the person . . . shall be imprisoned . . .” explicates the meaning of the word “person.” Since a human being and not an artificial entity is the one capable of and threatened with imprisonment (Ill Rev Stats 1963, c 38, sub § 1-7 (h), (i)) the word “person” must be restricted to meaning an individual each time it is used in that provision. Ill Rev Stats 1963, ch 38, sec 2-15.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, X, concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William DiVito, Defendant-Appellant.
    Gen. No. 50,044.
    First District, Third Division.
    January 6, 1966.

      R. Eugene Pincham and Charles B. Evins, of Chicago, for appellant.
    . Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Stuart P. Shapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This involves an appeal from a judgment finding the defendant guilty of the offense of robbery by force. The defendant was sentenced to the Illinois State Penitentiary for a term of 1 to 5 years. The trial was by the court without a jury.

The defendant’s only point on this appeal is that since he had been a guest in an apartment previous to the commission of a robbery therein, the discovery of the defendant’s fingerprint in the apartment after the commission of the robbery does not establish that the defendant committed the robbery.

The testimony on behalf of the State was as follows: On the afternoon of June 28, 1963, one William Orlach was in the apartment located .at 2633 South Harding Avenue with Jerry Bures, the complaining witness. Jerry Bures was the tenant of the apartment at 2633 South Harding Avenue. Orlach and Bures had been friends for about two years. About 1:15 in the afternoon the doorbell rang and Bures opened the door and saw two men standing outside. One of the men immediately hit him in the eye. The other man choked him and threw him to the floor. One of the men said to Bures, “Just don’t move or we will give it to you.” Bures laid on the floor for about one hour and when he heard no more noise he got up and saw that his apartment had been ransacked. Jewelry and money were missing from the apartment. The police were called and when they arrived Orlach was still in the apartment and gave his address to them. A metal box which Bures kept on an upper shelf in his den was found laying open on the dining room table after the robbers had left the apartment. The police officer took fingerprints from numerous places, including the metal box on the table. The testimony of police officers established that a fingerprint of one thumb which was taken from the metal box on Bures’ dining room table was identical to the fingerprint of the defendant’s thumb.

William Orlach was not called as a witness by the State.

Bures did not prior to or at the time of the trial identify the defendant as one of the persons who robbed him.

The prosecuting witness Bures was asked the following questions and made the following answers to them: “Q. All right, do you ever recall seeing that man (indicating the defendant) before the 28rd of June of 1963?” Witness: “No, I don’t.” Mr. Leahy: “Q. Do You ever recall seeing this man before . . . when was the first time you recall seeing this man? Let me ask you that? A. When I came to Judge Ryan’s chambers way back when for the arraignment, that’s all. Q. You don’t recall seeing Mr. DeVito at any time prior to going to Judge Ryan’s chambers or courtroom? A. No, sir.”

The defendant testified to the following facts: He was an insurance salesman for Franklin Life and New York Life Insurance Company. He also did construction and remodeling work. He met the complaining witness Jerry Bures in May or June of 1963 in the Cherry Lounge in the 2500 block on South Pulaski. The defendant and Bures engaged in conversation at the bar of the lounge and the conversation eventually got around to tax figures. The defendant had just completed a tax form and was complaining about what he had to pay. They discussed the amount of the tax the defendant had paid for the last quarter of 1962. Bures told the defendant, “It’s too bad that I hadn’t known you before, because that’s my business,” meaning that he could have helped the defendant. A few days later the defendant again saw Bures in the same lounge. Bures claimed he was an income tax accountant. Bures suggested that the defendant stop by his home and Bures would see what the defendant should or should not have done about his income tax, and what Bures could possibly do for him. Bures told the defendant to bring his records with him. About ten or fifteen days later the defendant went to Bures’ apartment. It was before June 23rd. He arrived there at 6:30 or 7:00 o’clock in the evening. Bures had given the defendant the specific hour when to come. The defendant took with him to Bures’ house records of his automobile expenses, insurance premiums, his living expenses and a couple of losses he had sustained. The interior of the apartment was a normal five or six room apartment. Bures and the defendant had one or two drinks of alcoholic beverages. Bures sat right beside the defendant at the table in the dining room and examined defendant’s papers. The table was cluttered with various objects, envelopes, cartons, cigarettes, boxes and whiskey bottles and things of this type. The testimony of the defendant showed that the apartment was littered and ill-kept. After one or two drinks, Bures started making immoral advances toward the defendant and the defendant got up and walked out.

The defendant denied that he was in Bures’ apartment on June 23, 1963, and denied the commission of or any participation in the robbery of Bures.

After the defendant’s testimony the defendant rested his case. The Assistant State’s Attorney thereupon said the following to the court:

“Mr. Leahy: All right, judge, if I could have about three minutes I will have some rebuttal.”

The court then declared a recess. The State did not present or offer any rebuttal testimony.

The complaining witness Jerry Bures, the victim of the robbery, never identified the defendant as one of the persons who robbed him. William Orlach, a friend of Bures for about two years, was present in the apartment during the entire one hour while the robbery was being committed. Although Orlach gave the police officers his address he was not called as a witness and did not testify at the trial. There was no testimony that he was not available or that any effort had been made to locate him, or that efforts to locate him were unsuccessful.

The State argues that the disputed testimony in the case at bar was not whether there was a valid identification of the defendant. The conflict arose solely on the basis of the defense pleaded before the court. Mr. Orlach could not lend credence to the testimony of either individual since his presence was not asserted at any of the alleged meetings and conversations upon which defendant relied in his defense, therefore substantial reason is thus lacking upon which to base defendant’s claim that the State’s failure to call Mr. Orlach should result in an inference to be weighed against the contention of the State to wit: that defendant was proved guilty beyond a reasonable doubt by sufficient and competent evidence. The State, however, overlooks the fact that Mr. Orlach was in the apartment for more than a full hour during the course of the robbery, during which time he, no doubt, observed the robbers. The inference might well be that Orlach had seen the robbers and would have testified that the defendant was not one of them.

In People v. Strong, 21 Ill2d 320, 325, 172 NE2d 765, 768, the court said: “While the State was not obligated to call Reynolds (People v. Aldridge, 19 Ill2d 176, 166 NE2d 563), the unexplained failure to do so may give rise to an inference against the State. Morei v. United States, (6th Cir) 127 F2d 827, 830.”

It is not explained in the State’s brief why the State’s Attorney did not ask Bures, the complaining witness, if he had ever seen the defendant prior to the time of the robbery. The complaining witness was asked only whether he recalled having seen the defendant prior to the time of the robbery.

After the defense had rested its case, and the State had requested a few minutes and that then it would proceed with its rebuttal, the prosecutor did not present any rebuttal testimony. Bures could have cleared up many questions which present themselves to this court. Did the testimony of the defendant refresh the recollection of Bures as to whether he had ever seen the defendant prior to the commission of the robbery? Had Bures been in the Cherry Lounge on the occasions testified to by the defendant and did he meet the defendant in the Cherry Lounge? Did Bures invite anyone to his home while in the Cherry Lounge? Did Bures discuss income taxes with anyone while in the Cherry Lounge? Was Bures a tax accountant ? How could defendant have known that Bures was a tax accountant except for the fact that Bures told him? Was Bures an accountant? Was the metal box, which was normally kept on the upper shelf in the den, on the dining room table at the time the defendant testified he was in Bures’ apartment discussing tax matters? Why did not Bures deny that he had made improper and immoral advances toward the defendant, or any other person in his apartment prior to the commission of the robbery ?

The evidence did not disclose the location of the metal box on the day the defendant claimed to have visited with Bures in his apartment. The evidence does not disclose whether the box was on the dining room table when the defendant was there except for the testimony of the defendant, who testified that among many other things there were boxes on the dining room table.

In People v. Johnson, 31 Ill2d 321, 323, 201 NE2d 367, 369, our Supreme Court said:

“Where a criminal offense is charged the burden rests upon the prosecution to prove its case beyond a reasonable doubt. The presumption of innocence is not overcome by speculation, or by probabilities, and where the evidence is such as fairly permits an inference consistent with innocence it will not support a conviction. . . . and where conditions may be explained on a hypothesis of innocence it is the duty of the court to accept that explanation.”

The State’s evidence did not establish that the metal box was inaccessible or was not on the dining room table when the defendant, according to his testimony, was in the apartment prior to the time of the robbery. It is a reasonable hypothesis to assume that the fingerprint of the defendant might have been placed on the metal box when the defendant, according to his testimony, visited with Bures. Furthermore, the testimony of the prosecuting witness was to the effect that the metal box was also used by his mother, who was the treasurer of many “affairs.” It cannot, therefore, be said that the metal box was at all times on the upper shelf in the den. The complaining witness, himself, testified that he had a den where he kept most of his things, and that he kept the metal box on an upper shelf in the den, however, he did not testify as to whether the metal box was or was not on the dining room table on the day the defendant stated he had visited with the complaining witness.

The State cites the case of People v. Taylor, 32 Ill2d 165, 204 NE2d 734, in support of the contention that the evidence in this case is sufficient to prove the crime. In the Taylor case the victim of the crimes testified that she heard a noise in the kitchen and when she went to the kitchen to investigate she saw a man stepping off the sink into the kitchen. The victim was unable to identify the defendant but the defendant’s fingerprints were found on the inside of the lower window sash of the kitchen window. The fingerprint expert testified that the prints on the inside of the window were the defendant’s. The defendant in that case testified in his own behalf but he did not attempt to explain the presence of his fingerprints on the window. The court there concluded that the unexplained presence of the defendant’s prints on the inside of the window is not consistent with any reasonable hypothesis of innocence. We do not believe that the Taylor case is controlling in this instance. The defendant in the instant case explained his presence in the apartment of the complaining witness a short time before the robbery and that among other things there were boxes on the dining room table at the time.

The well established rule is that before a conviction can properly be had on circumstantial evidence alone, the guilt of the accused must be so thoroughly established as to exclude any reasonable hypothesis of his innocence. People v. Heep, 302 Ill 524, 135 NE 64.

In Anthony v. State, 85 Ga App 119, 68 SE2d 150, 152, the court said:

“ ‘To warrant a conviction, however, the finger prints corresponding to those of the accused must have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time when the crime was committed.’ 16 ALR Annotation, P 370.”

Also see State v. Minton, 228 NC 518, 46 SE2d 296.

The evidence in the instant case creates a reasonable doubt of the guilt of the defendant and the judgment therefore must be reversed.

Reversed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Moczarney Martin, Defendant-Appellant.
    Gen. No. 50,273.
    First District, Third Division.
    January 6, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Moczarney Martin and Augustus Varnado were indicted for burglary and theft, were tried before a jury, were found guilty of the theft of property worth more than $150 and were sentenced to the penitentiary for two to eight years. This appeal is by Moczarney Martin only.

The errors relied upon for reversal are prejudicial argument by the State’s Attorney, prejudicial conduct by the court, failure to compel disclosure of the name of a police informer, violation of the defendant’s constitutional rights and insufficient proof to establish the defendant’s guilt beyond a reasonable doubt.

The home of Carol Shields was broken into on April 15, 1963, and considerable property was stolen including a hi-fidelity AM-FM phonograph valued at $400. On April 30th the police received information which caused them to look for Martin and which led them to the location of the phonograph. On the way to the address given them by their informant they came upon Martin and arrested him. He was told that they had learned that he and another man had committed the burglary and had disposed of the phonograph. After first denying knowledge of the theft, Martin admitted that he and Varnado had taken the phonograph. He agreed to aid in finding Varnado.

The policemen then went to the residence of Joseph Ramey who'told them that the phonograph was in his home and that he had received it on April 16th from Martin and Varnado as security for a $75.00 loan made to Martin, whom he had known for years. He stated that Martin had introduced Varnado as his uncle and had said that his uncle would furnish the security. The three then went to Varnado’s home, obtained the phonograph and brought it to Ramey’s residence. Ramey repeated his story at the police station in the presence of Martin, who admitted its truthfulness.

Martin was placed in a squad car and accompanied the policemen to Varnado’s address. Varnado was arrested and the policemen questioned two women who were in his apartment. Varnado asked the officers not to involve the women, who he said were innocent of wrongdoing, and volunteered to tell the whole story. He said that he and Martin stole the phonograph, kept it overnight in his girl friend’s home and the next day disposed of it as related by Ramey.

At the trial Ramey repeated his story. Martin and Varnado denied the theft, denied admitting it to the police and denied knowing each other. Martin testified that he was acquainted with Ramey. Varnado denied knowing Ramey.

It is not necessary to consider four of the five claims of error asserted by the defendant because error was committed by the trial judge himself which requires reversal of the judgment.

Martin acknowledged that he was a drug addict and admitted that he had been found guilty of selling narcotics which conviction, at the time of his trial, was being appealed (People v. Martin, 63 Ill App2d 492, 211 NE2d 753 (1965)). He testified that because of his narcotics addiction he was very sick at the time of his arrest. Under cross-examination by the prosecutor, he said that he spent most of his weekly pay checks for heroin. Upon redirect examination he explained that when he had no money, or was ill, his suppliers would give him credit and that) his relatives would give him money. He also said that he had taken a narcotics cure about a month and a half before his prior conviction. An objection was made. The court sustained the objection and interposed:

“The jury will disregard the questions of counsel because they are solely to create sympathy for the defendant.”

The defendant further testified, on redirect examination, that he had been to Ramey’s house a few times and had gambled there. An objection was made. The court remarked:

“Your witness testified that everything he earned he spent on narcotics, so evidently I don’t know what he used to gamble.”

An objection was made to the court’s remarks. Soon thereafter Martin’s attorney stated he had no further questions. The' court then questioned the defendant as follows:

“The Court: Q. Mr. Martin, you say you bought narcotics on credit ?
A. Yes, sir.
Q. From who ?
A. Well, sir, at the time when I was asked the same question—
Q. From who ?
A. I won’t answer the question, sir.
Q. You don’t want to answer that question?
A. No sir.
Q. How much narcotics did you buy on credit ?
A. What it required for me to get my sickness off, sir.
Q. What is that ? '
A. What it had required for me to get my sickness off.
Q. How much do you owe now for narcotics ?
A. I don’t owe anything.
Q. You don’t owe anything ?
A. No, sir.
Q. You paid it all back ?
A. No, sir, I can’t recall paying it all back.
Q. Well then, you must owe somebody.
A. There is a possibility I do.
Q. Who?
A. Well, I haven’t stated any names.
Q. Who?
A. I haven’t stated any names.
Q. I’m asking you who do you owe?
A. I won’t answer that question.
Q. You don’t -want to answer that question?
A. No.
Q. Why not ?
A. I can’t recall that person’s name.
The Court: All right.
Defendant’s Counsel: Could I ask him a couple of questions ?
The Court: No.”

The court’s remarks tended to disparage the defendant’s case and the court’s questions discredited him. The questions were not relevant to a material issue, placed the defendant in a difficult position and were improper before a jury. They were searching and persistent, were asked as though in cross-examination and indicated that the court did not believe the defendant; their skeptical nature and partisan character deprived the defendant of an impartial trial.

It is the duty of a court to see that every defendant, guilty or innocent, receives a fair trial. A court must not, directly or indirectly, convey its opinion of a defendant’s credibility to a jury. Jurors are ever watchful of the attitude of a trial court and any disclosure of disbelief or hostility is likely to influence their verdict. People v. Santucci, 24 Ill2d 93, 180 NE2d 491; People v. Marino, 414 Ill 445, 111 NE2d 534; People v. Garines, 314 Ill 413, 145 NE 699.

Justice dictates that this case be retried. The judgment is reversed and the cause remanded.

Reversed and remanded.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    Ivery Johnson, Plaintiff-Appellant, v. United Motor Coach Co., Defendant-Appellee.
    Gen. No. 50,304.
    First District, Third Division.
    January 6, 1966.

      Robert E. Cleveland, of Chicago, for appellant.
    Irvin Tischer and Joseph B. Lederleitner, both of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, Ivery Johnson, appeals from an order dismissing her case. The order was entered after the trial court denied her petition for a change of venue and she elected to stand on the record.

She contends that her petition should have been granted because it was in proper form and timely presented. The defendant argues that the petition was properly denied because it was not in correct form, was not filed in apt time and was presented without notice.

The plaintiff’s personal injury action was reached for trial the morning of October 8, 1964, and the assignment judge sent the case out for trial about 10:30 a. m. At 11:45 a. m. the attorneys for the parties conferred with the trial judge in his chambers. The case was discussed and the possibility of settlement explored. The plaintiff’s attorney said that the plaintiff was coming to his office during the noon-hour and he would confer with her. The pretrial conference was adjourned and the case was postponed until 2:00 p. m. for settlement or trial. The attorneys were in court at the appointed hour and the case was called at 2:15 p. m., at which time the plaintiff’s counsel handed the petition for a change of venue to opposing counsel and immediately thereafter, presented the original to the court. The court denied the petition stating that it was not in proper form and did not comply with the statute. Thereupon the selection of the jury commenced.

The motion was renewed following the selection of four jurors and it was again denied. At the hearing on the renewed motion a colloquy took place between the court and the plaintiff’s attorney during which uncomplimentary remarks were made by the court about the attorney. An oral motion was then made that the judge disqualify himself. It was denied. A second panel of jurors was chosen and the court adjourned until the next day.

When court reconvened on the morning of October 9th, the motion for a change of venue was made for the third time. Upon the denial of the motion the plaintiff elected to stand on the record and refused to proceed. Her suit was dismissed.

The objection that the petition was not in proper form is based on the fact that it was addressed to the assignment judge rather than the trial judge. The body of the petition, however, named the trial judge and stated that the plaintiff feared that she would not receive a fair and impartial trial because of his prejudice which first came to her knowledge on October 8th. The petition repeated the name of the trial judge in its concluding paragraph and prayed for a trial before some other judge. The meaning and the intent of the petition were unmistakable and the defendant’s argument that it was not in correct form is extremely technical. Section 3 of the Venue Act (Ill Rev Stats 1963, c 146, § 3) provides:

“Every application for a change of venue shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant.”

The provisions of the venue statute must receive a liberal rather than a strict construction and should be construed to promote rather than defeat the right to a change of venue. People v. Chambers, 9 Ill2d 83, 136 NE2d 812; Howarth v. Howarth, 47 Ill App2d 177, 197 NE2d 736. Since the plaintiff’s verified petition contained the basic statutory requirements as to form, the slight irregularity pointed out by the defendant cannot defeat the plaintiff’s right to a change of venue.

The next question is whether the plaintiff presented her petition in apt time. A petition for a change of venue must be filed at the earliest practical moment. Jones v. Jones, 40 Ill App2d 217, 189 NE2d 33. It is not filed in apt time if the court has ruled on a substantive issue in the case or if there has been a formal hearing that will be binding on the parties and affect the court’s decision on the merits. Miller v. Miller, 43 Ill App2d 214, 193 NE2d 105. The petition will be denied for lack of timeliness if it is filed for the purpose of delay or to avoid trial. Birtcher Corp. v. Oms Surgical Supply, Inc., 46 Ill App2d 57, 196 NE2d 711. In Roherty v. Green, 57 Ill App2d 362, 206 NE2d 756, and Steiner v. Steiner, 44 Ill App2d 355, 194 NE2d 508, it was held that a pretrial conference, where no ruling on a substantive issue is made, is not in and of itself a formal hearing that would preclude a subsequent motion for a change of venue. In the instant case the pretrial conference appears to have been a typical informal hearing which included a discussion of a settlement figure. The trial judge made no decision affecting the merits of the case and decided no substantive issue and, since there is no indication of a dilatory purpose in filing the petition, the plaintiff’s petition was filed in apt time.

The remaining issue concerns notice of the petition. The defendant received no notice of the presentation of the petition and argues that for this reason it was fatally defective. The defendant cites a number of cases in support of its position that the petition should have been denied for lack of notice. However, these cases are distinguishable in that in all of them at least one day’s notice could have been given between the time the prejudice of the judge first became known and the filing of the petition, or the court had considered a substantive issue prior to the presentation of the petition, or the petition was filed for the purpose of delaying the trial.

Cases more in point are Mockler v. Thomas & Co., 273 Ill App 121 and People v. McGlothen, 26 Ill2d 392, 186 NE2d 319. In Mockler, a case that had been on the trial call of one judge was transferred to another. The plaintiff presented a petition for a change of venue on the day the case appeared on the trial call of the second judge. The petition charged prejudice and that the prejudice first became known to the plaintiff on the day the petition was presented. The petition was refused and the parties ordered to trial. On appeal the defendant insisted that the petition was filed for delay and that under the statute it was necessary to have served notice within a reasonable time before the trial. The court held that the petition was filed at the earliest possible opportunity, was regular in form and properly verified and, therefore, should have been granted.

In People v. McGlothen, a criminal case, the circumstances paralleled those in the present case. When the case was called for trial both parties answered ready. The case was held on the call and after a recess the defendant’s counsel informed the court that the defendant requested a change of venue. A written petition was filed in which the defendant stated that the trial judge was prejudiced against him and that he first became aware of the prejudice that day. The trial judge asked whether the State had received any notice and, upon being advised that it had not, denied the petition. The judge indicated that he did not believe that knowledge of the alleged prejudice came to the defendant during the recess and remarked that since the defendant had announced that he was ready for trial it was apparent that the petition was filed for the purpose of delay. The reviewing court said:

“We are of the opinion that in this case, where the defendant stated that knowledge of the prejudice came to him during the recess, the actual filing of the motion in open court was the only notice possible, and was reasonable under the circumstances. The trial judge therefore erred in denying the change of venue and the judgment of conviction must be reversed and the cause remanded for a new trial.”

The change of venue provisions for civil and criminal cases are alike insofar as they are pertinent to the instant case. Sections 5 and 23 of chapter 146 provide for reasonable notice of the application to the adverse party or to the State’s Attorney as the case may be; but sections 6 and 24 provide that no change of venue shall be allowed if the application is made more than 30 days after return day in civil cases, and after the earliest date at which the applicant might have been heard in criminal cases, unless 10 day’s notice has been given to the opposite party or to the State’s Attorney, respectively. However, there is an important exception in sections 6 and 24: 10 day’s notice is not required when the cause for the application has arisen or has come to the knowledge of the applicant within 10 days before making the application. The court in People v. McGlothen applied this exception in holding that notice was not necessary when knowledge of the trial court’s prejudice first came to the defendant on the same day the petition was filed and that in such a case the only notice required was the most effective notice that could be given under the circumstances.

The same reasoning applies to the present case. The plaintiff filed her petition on the same day the prejudice became known to her and filed it immediately upon the resumption of the proceedings after a lunch hour recess. She had consulted with her attorney during the noon-hour and had signed the petition and affidavit. There was really no opportunity for formal notice and it would be quibbling over minutes to hold that the defendant should have been supplied a copy of the petition a little bit sooner than it was.

Under the facts of this case the petition was improperly denied and all proceedings, including the order entered by the trial court subsequent to the denial, are void. People v. Davis, 10 Ill2d 430, 140 NE2d 675; Jones v. Jones, 40 Ill App2d 217, 189 NE2d 33.

The order of dismissal is reversed.

Reversed and remanded.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: TRAPP, J. TRAPP, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James D. Ritchie, Defendant-Appellant.
    Gen. No. 10,636.
    Fourth District.
    January 11, 1966.
    Supplemental opinion, February 3, 1966.
    Rehearing denied February 3, 1966.

      McCoy, Ming & Black, of Chicago (Ellis E. Reid, of counsel), for appellant.
    John J. Bresee, State’s Attorney of Champaign County, of Urbana, for appellee.
   TRAPP, J.

Defendant appeals from a judgment of conviction following a bench trial upon an indictment which in one count charges rape, and in a second count charges burglary with intention to commit rape.

It is urged that the judgment should be reversed for failure to prove the defendant guilty beyond a reasonable doubt in, (1) the identification of the defendant as the one committing the offense, and (2) that rape was, in fact, committed. Finally, it is urged that the defendant was denied constitutional due process and equal protection of the law because of the failure to have made a stenographic report of the proceedings at the preliminary hearing upon the charges, and that by reason of such failure the defendant was unable to impeach the complaining witness.

The questions of proof of the elements of the offenses beyond a reasonable doubt arise under the following matters of evidence: The complaining witness was a 28-year-old unmarried woman employed at the Chanute Air Force Base. She resided alone in a house trailer with the address 218 West Grove in Rantoul, Illinois. This house trailer was one of a number of such trailers situated in a park or area devoted to such housing. The complaining witness was employed at the Chanute Air Force Base and the defendant is an enlisted man stationed at such base, but all of the evidence was that each was unknown to the other prior to the time of the offense charged.

The State’s evidence of the occurrence is that at about 3:00 a. m. on July 10, 1964, the complaining witness heard a noise outside the trailer window at the head of her bed, then a noise at the locked screen door and that a man entered the room. There was no light illuminating the room, but there was a light in the bathroom. The details of the testimony concerning the conversation and of the struggle that ensued are not essential to the issue, except to say that there was testimony as to the incidental slapping and choking as a part of the assault upon the complaining witness, and that the intruder fled when she managed to scream.

The witness thereafter turned on the light and discovered a wallet on the floor. This proved to contain the airman’s identification card and other documents of the defendant. She called the Rantoul police and Sergeant Baxter arrived promptly. The evidence is that while making the telephone report, the witness only said that a man had broken into her trailer and that she had his wallet. The testimony of Sgt. Baxter is that immediately upon his arrival the witness gave him the wallet and stated that she had been raped, that he examined the bedroom and observed that it was in disarray and that articles had been knocked to the floor. He observed the condition of the door and testified to details which justify the conclusion that it had been forced. Sgt. Baxter also testified that he and the witness looked at the defendant’s photograph on the identification card and that the witness stated that the intruder was the man whose photograph appeared. She described him as blond, about 6 feet tall, wearing dark trousers with a light colored shirt. The identification card described the defendant as being 5 feet 10 inches tall with red hair.

Baxter testified that following a short examination of the premises he suggested that the witness have a medical exam and that she immediately agreed, stating that she would dress and that a neighbor would bring her to the police station in ten minutes. Baxter then left and arranged for a physician to make the medical examination. He testified that the witness arrived at the police station almost at the same time as he, Baxter, did.

The doctor testified, in summary, that his medical examination was not conclusive as to the fact of rape, that he found no trace of spermatozoa, that the hymenal range was not intact but that he observed no fresh injuries to the hymen, and that he observed no contusions either in the genital area, or about the face and neck where complaining witness had testified to being slapped and choked.

Baxter testified that following the medical examination of the witness, he and Sergeant Rarrick of the Air Force Police returned to the trailer and examined the area for possible evidence. The testimony is that directly beneath the bedroom window of the trailer were discovered “numerous prints . . . measured 2.3 inches by 2.7 inches in the bare earth.” These prints were photographed at about 8:30 a. m. on July 10th and the photographs were admitted into evidence. Without the details of the search, Baxter and Rarrick arrested the defendant at about 5:10 a. m. in the vicinity of an entrance to the Air Force Base. At that time the defendant was carrying several phonograph records. He was dressed in a light blue knit “T” shirt with colored one inch dark blue stripes upon the front and dark colored trousers. There was a walking cast on his right foot.

The evidence is that at the time of making the arrest, Baxter asked the defendant if he had been in the area of 218 West Grove prior to the time of the arrest. Defendant answered that to the best of his recollection he did not think so. In reply to a question, defendant stated that prior to the arrest he had just been walking around. Baxter testified that, in his opinion, the defendant had been drinking but was not intoxicated at the time. Defendant was asked for his wallet and he stated that he had apparently lost it and that he had first noticed the loss when he was asked for it at the time of the arrest.

During the day of July 10th the walking cast was removed at the Air Force Base and such cast was admitted into evidence. The “heel” of the walking cast was not admitted into evidence, as it appears that it was not identified or marked for identification at the time of removal. The defendant testified that the “heel” present in court and sought to be admitted into evidence was similar to the one he was wearing on the date in question. It appears that on the same date a new cast was applied and that the defendant continued to wear it for a month or more.

The substance of defendant’s testimony, as well as of his statements made to the police, is that on July 9, 1964, he went off duty at approximately 4:30 p. m., that he wrote a letter to his wife and then went to the Enlisted Men’s Club and had some beer, whiskey and coke, that he remained there until 8:00 or 8:30 p. m. when he called a cab and went to a tavern known as the Caravan, mailing the letter to his wife en route. He stayed at the Caravan until it closed at about 1:00 a. m. While there he struck up an acquaintanceship with some Air Force men, several of whom were commissioned officers. He bought a bottle of whiskey and joined these men as they proceeded to a party that was held at the residence of Lieutenant Wetter at 401 North Tanner Street. The defendant left this address and was taken to the Air Force Base to procure some phonograph records and returned to the party.

Lt. Wetter verifies the fact that the defendant left and returned with some phonograph records and that the defendant left alone at about 2:45 a. m. on foot, so far as the witness knew. The testimony of the defendant is that as he left someone offered to drive him to the base but that he said that he would walk. The defendant testifies that all that he remembers after leaving is that he was walking around and through Rantoul until he was arrested, and that it must have been raining, or that it had rained, as his foot kept getting wet. He also testified that he was scheduled to report for duty at 7:30 a. m. on July 10th.

Upon the issue of the identification of the defendant beyond a reasonable doubt, defendant’s counsel points out that it is the duty of the court to examine the evidence with the greatest of care and that this is particularly so where the offense charged is rape. We accept such view completely. It must be recognized, however, that the circumstances of this offense frequently includes surprise and confusion as well as fierce struggle, and that such circumstances are not conducive to obtaining a precise description of the offender. People v. Evans, 25 Ill2d 194 at p 201, 184 NE2d 836.

Defendant cites People v. McGee, 21 Ill2d 440, 173 NE2d 434; People v. Kidd, 410 Ill 271, 102 NE2d 141, and People v. Fiorita, 339 Ill 78, 170 NE 690, as authority requiring this court to hold that there has not been a sufficient identification so that the case must be reversed. In each of these cases, not only was the identification vague and inconclusive and based upon observations made under the most dubious circumstances, but there were no circumstances corroborating such identifications, and the testimony of the identifying witnesses was directly contradicted by the testimony of more than one disinterested witness which supported the defendant’s alibi.

The complaining witness testified that her assailant was blond and was limping with his right foot. These items are corroborated and appear to be the fact. Sgt. Baxter states that when he first called at the trailer the witness stated that the man wore dark trousers. It is argued that her description failed because she stated to Sgt. Baxter, and testified as well, that he wore a white or light shirt and failed to mention the wide dark stripes on the shirt. The testimony of the defendant, as well as that of Sgt. Baxter is, however, that these stripes were only on the front of the shirt, and taking into account the circumstances of the struggle testified to, we cannot say that the testimony fails by reason of the omission of reference to the stripes.

It is also argued that the identification of the defendant by the complaining witness is inadequate because she had seen the defendant’s photograph upon the Air Force identification card, and hence, her identification of the defendant in the courtroom and at the occasion on July 14th when she picked the defendant’s photograph from a group of 18 photographs of men who had been arrested in Rantoul, is tainted. It appears, however, in this case that there are facts and circumstances which corroborate the identification made by the witness. The most obvious one is the fact that his wallet was found on the floor of the bedroom of the house trailer. In the strict sense, there was no scientific identification of the footprints and prints apparently made by the “heel” of the walking cast. The trial court noted the testimony however, and the photographs of such prints, and they are certainly not inconsistent with the fact that defendant was present at the window of the house trailer.

Recalling the authorities cited by the defendant and noted above, as to matters of alibi, there is, on the contrary, no corroboration of defendant’s statement that from 2:45 a. m. until 5:10 a. m. on July 10th, he Was simply walking around Rantoul, if not in the rain, at least under conditions which caused him to state that his foot became wet.

It is further urged that there is no proof beyond a reasonable doubt that there was, in fact, a rape, and it is contended that there is no corroboration of the testimony of the complaining witness that such did occur. The testimony of the witness is that there was a penetration by the male sex organ. This was denied by the defendant, as he contended that he was not there. It has been held that a corroborating factor, as to a charge of rape, is the making of a prompt and spontaneous statement by the injured party. The defendant contends that such complaint is absent because when the witness telephoned the Rantoul police, she only stated that a man had broken into her trailer and that she had his wallet. There is no contradiction to the evidence that Sgt. Baxter came to the trailer in a matter of minutes and that immediately upon his arrival complaint was made of the rape. Considering that under the circumstances the telephone call to the police was a logical means of getting assistance promptly, we cannot say that there was an ábsence of a spontaneous and prompt statement.

In addition to the making of the complaint, the evidence is that the complaining witness immediately and without hesitation agreed to the suggested medical examination and promptly appeared for such examination as she had been requested to do.

While the medical evidence is not conclusive upon the issue of the fact of the rape, the witness testified that she was struggling with the intruder, that the sex act was not completed and that when the defendant removed his hand from her mouth, she screamed and he departed. It is the rather sophisticated argument of the defendant that the complaining witness testified that she had had no sexual experience and that she would, therefore, not be able to say whether or not the sex act had been completed; that it is not reasonable to suppose that a 23-year-old woman living alone in a house trailer near an Air Force Base would be a virgin in these days and times, but that we should assume that she complained of the rape because she knew that a medical examination would raise a question as to her virginity. It is apparent, of course, that the absence of virginity is not relevant to the issue of rape. There is no contention that there was a consent. A moment’s consideration makes reasonable the conclusion that if the complaining witness was as knowledgeable as is argued, and was concerned with the possible disclosures of a medical examination, she would not have made the complaint of rape but only a complaint of burglary. The evidence is that neither the complaining witness nor the defendant were acquainted and there is no evidence which suggests a reason for the making of a false charge of rape.

Defendant cites certain cases which are stated to require the reversal of this case upon the issue of rape. In People v. Carruthers, 379 Ill 388, 41 NE2d 521, the medical examination made two days after the alleged act indicated the rape of a 12-year-old-girl. The case was reversed, however, because there had been no spontaneous complaint, the testimony of the complaining witness “taxed the credulity of any reasonable person” and the undisputed testimony discredited her account of the offense.

Again, in People v. Kazmierczyk, 357 Ill 592, 192 NE 657, there was no prompt and spontaneous complaint concerning the offense, and there were no corroborating facts or circumstances, but rather there was testimony contradictory to the testimony of the complaining witness. In People v. Glasser, 335 Ill 263, 167 NE 43, the circumstances of the offense testified to by the complaining witness were contradicted by the testimony of disinterested witnesses. Finally, in People v. Scott, 407 Ill 301, 95 NE2d 315, there was no prompt or spontaneous complaint and the circumstance that the complaining witness stayed in the defendant’s apartment for two days cooking and doing the laundry when she could have fled caused the court to conclude that she did not resist only to be overcome by the superior strength of the defendant.

The defendant urges that there has been a denial of due process and a denial of the equal protection of the laws under the State and Federal Constitutions. His position is that there was no stenographic transcript made at the preliminary hearing and that by reason of such fact, he did not have the transcript available to impeach the testimony of the complaining witness at the trial. While the fact is not in the record, counsel states that in Cook County a stenographic report of the preliminary hearing is made and that such would be available for purposes of impeachment, if it was desired. He further contends that the difference in the procedure at a preliminary hearing in Champaign County and in Cook County amounts to a denial of due process and the deprivation of the equal protection of the law. He cites chap 37, sec 163-b (Ill Rev Stats), which he quotes in part:

“The reporter shall take full stenographic notes of the evidence in trials before the court before which he is appointed, and stenographic notes of such other proceedings and trials as directed by the court and shall furnish one transcript of them, if requested, by either party to the suit, or by his attorney, or by the judge of the court, to the person requesting it . . . ,”

and urges that the language of such section requires the stenographic reporting of the preliminary hearing.

Under art VI, sec 5 of the Illinois Constitution, our Supreme Court has the ultimate determination of questions under State and Federal Constitutions in so far as the courts of this State are concerned. We believe that People v. Morris, 30 Ill2d 406, 197 NE2d 433, determines the proposition stated. In an opinion filed March 18, 1964, prior to the date of the offense in issue, the Supreme Court considered the point raised here. In that case there was, in fact, a stenographic transcript of the preliminary hearing held in Cook County, but a copy of the same was refused, or otherwise was not supplied to the indigent defendant. The court held that transcripts of preliminary hearings were distinguishable from the transcript of the trial which must be supplied to an indigent defendant under Griffin v. Illinois, 351 US 12, 100 Law Ed 891, and that nothing in the Griffin opinion required the supplying of transcripts of preliminary hearings.

Mr. Justice Schaeffer, specially concurring, expressed the view that where a court reporter was present at the preliminary hearing, the rule of the Griffin opinion required the furnishing of a transcript upon request. The constitutional requirement contended for by the defendant is not supported under the strictest views stated in the Norris case, but rather it appears that the constitutional question raised has been decided contrary to the argument of the defendant.

Examination of the record discloses no request for taking stenographic report of the preliminary hearing, and it does not appear that any limitations were imposed by the trial court, either upon the cross-examination of the complaining witness, or upon any attempt to impeach her testimony at the trial.

The trial court imposed a sentence of 15 years to life as to each count of the indictment, such sentences to run concurrently. We must note these sentences in the light of the development of the law upon the matter of proper sentencing where there has been a conviction upon separate counts of the same indictment, and it appears that each indicted offense concerns the same transaction.

In People v. McMullen, 400 Ill 253, 79 NE2d 470, the Supreme Court held that a convicted person was not prejudiced when concurrent sentences were imposed under the circumstances stated. A change of view may be noted, however, in People v. Stingley, 414 Ill 398, 111 NE2d 548, where consecutive sentences had been imposed. While the judgment of the lower court was affirmed, the Court found that the convicted person was prejudiced by the consecutive sentences imposed and held, in effect, that the State was entitled to but one satisfaction of penalty under the indictment. It appears that the effective result of the decision was to hold that the consecutive sentences should be served as though concurrent, thus exacting the one satisfaction of penalty.

A further development of the view of the Supreme Court is found in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958). Therein the court concluded that concurrent sentences for separate offenses occurring as a part of the same conduct or series of acts were prejudicial and determined that the proper procedure for the reviewing court was to reverse the judgment as to the lesser offense. The same rule and procedure was followed in People v. Squires, 27 Ill2d 518, 190 NE2d 361 (1963), where the sentences imposed were consecutive, and People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299, where the sentences were to be served concurrently.

The Criminal Code of 1961 makes specific provision with regard to sentences which may be imposed. Chap 38, § 1-7(m) (Ill Rev Stats 1963), states:

“When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.”

The Criminal Code, cited as above, in § 2-4 provides the following definition:

“ ‘Conduct’ means an act or a series of acts, and the accompanying mental state.”

The committee which prepared the draft of the Criminal Code adopted by the Legislature, has noted in its comment to § 1-7 (m), that such language was intended to codify the holding in Schlenger so that if the offenses charged result from the same conduct, the defendant may not be sentenced on both, either concurrently or consecutively.

The indictment in this case includes a count charging rape and a count charging burglary with intent to commit rape. We must conclude that upon the record of this case such counts were presented to and considered by the court as a part of the same conduct or transaction, and that, under the cited decisions and the subsequent statutory enactment, the concurrent sentences imposed are not authorized by law.

While under the statute, rape and burglary are each designated as a forcible felony (111 Rev Stats 1963, c 38, § 2-8), we believe the conviction for rape to be the graver offense. The judgment upon the count for rape is affirmed. Under the statute and the cited authorities, the judgment upon the indictment for burglary must be reversed.

Judgment on the first count is affirmed.

Judgment on the second count is reversed.

SMITH and CRAVEN, JJ., concur.

Supplemental Opinion on Denial of Petition . for Rehearing

TRAPP, P. J.

Upon petition for rehearing, the prosecution urges that this court erred in reversing the judgment of the trial court as to the sentence upon the conviction of burglary with intent to commit rape.

It is contended that rape and burglary are distinct substantive offenses, each requiring proof of differing elements, but that chap 38, sec 3-3 (Ill Rev Stats) requires the State to proceed as to each in a single prosecution. It is argued as analogy that had there been separate trials upon the separate counts in one indictment, or trials upon separate indictments, the conviction of the defendant in one trial on a charge of rape would not bar a conviction of the same defendant on a charge of burglary at a separate trial.

It is pointed out that in People v. Stingley, 414 Ill 398, 111 NE2d 548, the counts of assault with intent to rape and assault with intent to murder concerned the same act and the same victim; that in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316, the counts for burglary and larceny related to the same amount of money taken from the same person; that in People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299, the counts charging rape and incest referred to a single act upon the same victim; and that in People v. Mullenhoff, 33 Ill2d 445, 211 NE2d 744, the separate counts concerned the same act upon the same victim. It is contended that here the count for rape and the count for burglary charge distinct substantive offenses which warrant imposition of sentence upon each conviction.

We believe that the conclusions reached in the opinion in this case are correct and are sustained upon review of People v. Golson, 32 Ill2d 398, 207 NE2d 68. In that case there was one indictment for the murder of Wilson and a second indictment for the murder of Spizzirri. The defendants were tried separately upon each indictment. Prior to the trial of the first indictment, the motion of defendants to consolidate the trials was denied. Prior to the trial upon the second indictment, the defendants’ plea in bar was denied. The Supreme Court pointed out that the two indictments charged separate and distinct offenses so that the traditional plea of double jeopardy did not apply. It was the conclusion of the court, however, that the defendants were tried twice for identical misconduct, i. e., participation in an illegal venture in which two men were killed and that fundamental fairness to the accused would not permit a second trial in this case. The court said:

“To determine, as a matter of legal semantics, that two indictable offenses were committed does not make these multiple trials fair, or vary the fact that defendants were guilty of only one punishable course of conduct.”

In accordance with such view, the Supreme Court reversed the judgment on the second indictment.

Accordingly, we adhere to our original opinion and the petition for rehearing is denied.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willard Brown, Defendant-Appellant.
    Gen. No. 49,795.
    First District, Fourth Division.
    December 30, 1965.
    Rehearing denied January 19, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Cornelius E. Toole and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

On May 12, 1964, defendant was sentenced to the penitentiary for a term of three-to-four years after trial without a jury on the charge of unlawful possession of narcotic drugs.

Defendant filed his brief on appeal May 19, 1965. He argued two points: that his motion to suppress evidence made prior to trial should have been allowed, and that the proof at trial did not establish his guilt beyond a reasonable doubt.

The motion to suppress evidence was entertained by the trial court on January 3, 1964. Defendant testified in support of his motion, as did three other witnesses on his behalf. There was no testimony introduced on behalf of the State. The motion was denied.

When the case came up for trial on May 12, 1964, the entire case was presented by stipulation, it being agreed that all testimony heard on the motion to suppress would be considered as evidence at the trial. The State’s Attorney also read into the record the following stipulation:

That on January 3, 1964 a motion to suppress was heard . . . that if officer McKelvey were called to testify, he would testify to the same facts testified to on the motion to suppress, that he was duly cross examined and both his direct and cross examination would be the same at this time. . . . that officer McKelvey would also testify he took the packages and put them in sealed envelopes and delivered them to the Chicago Crime Detection Laboratory where they were received in a sealed envelope and were removed therefrom by Andrew Principe, who subjected the contents of the two tinfoil packages to various chemical tests, and upon his analysis found them to contain what is commonly referred to as heroin. That he put them into a sealed envelope and that they are in that condition at this time; that everything that he would testify to happened in Cook County, Illinois. And the defendant’s age is forty-three years.

As mentioned above, there had, in fact, been no testimony by Officer McKelvey, nor by any other witness for the State, at the hearing on the motion to suppress. Examination of the testimony which was heard at that time discloses no proof whatsoever establishing any connection between the defendant and the packages which, by stipulation, were found to contain heroin.

On November 18, 1965, the State’s Attorney filed a Confession of Error in this court which, in effect, conceded the defect in the State’s case, as above set forth. On the basis of the Confession of Error the State’s Attorney made a motion for reversal of the conviction and remandment for a new trial. Defendant interposed no objection and the motion was allowed as a routine matter.

Several weeks later defendant filed a motion to vacate this court’s order and enter, rather, an outright reversal of the judgment of conviction. While the State has made no objection to this motion, we have given it full consideration and have examined the entire record in regard to both motions. See People v. Kelly, 66 Ill App2d 204, 214 NE2d 290, filed this date; Young v. United States, 315 US 257, 258; and United States v. Holton, 227 F2d 886, 893-895.

The action of the State’s Attorney in filing his Confession of Error was correct and proper, since, as stated by the court in People v. Maurice, 31 Ill2d 456, 458, 459, 202 NE2d 480, *‘[t]he duty of the State to prove defendant’s guilt beyond a reasonable doubt cannot be assisted by judicial assumption that a stipulation mistakenly states the facts through inadvertence of the representative of the People.” In Maurice the cause was remanded for a new trial because of the erroneous admission of evidence. Here, however, in view of the nature of the fatal deficiency in the State’s case, we are unable to comprehend any basis upon which the cause might properly be remanded for a new trial. The evidence simply does not connect defendant with the crime alleged and fails to sustain the conviction which must therefore be reversed without remand. People v. Williams, 25 Ill2d 562, 565, 185 NE2d 686; People v. Price, 24 Ill2d 46, 58, 59, 179 NE2d 685; Bates v. United States, 323 US 15 and 148 F2d 907.

This court’s order of November 24, 1965, reversing defendant’s conviction and remanding the cause for a new trial is vacated and the judgment of conviction is reversed.

Reversed.

MCCORMICK, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE DRÚCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Newman, Defendant-Appellant.
    Gen. No. 49,610.
    First District, Fourth Division.
    January 7, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRÚCKER

delivered the opinion of the court.

The defendant, Robert Newman, was found guilty of burglary after a bench trial and was sentenced to the penitentiary for a term of not less than four nor more than twelve years. Defendant in his appeal contends that his confession was improperly admitted into evidence and that the remaining evidence alone was insufficient to support his conviction.

In essence the relevant facts are that on July 1, 1961, a Cadillac automobile which was reported stolen on June 16 from a garage at the rear of 415 South Central Avenue in Chicago, Illinois, was recovered partly dismantled from a burning garage at the rear of 3112 North Park-side in Chicago. Defendant was arrested at 12:30 a. m. on June 30,1963, and at 11:20 that morning gave a signed statement to the police which stated in substance:

On June 16, 1961, at about one o’clock in the morning I saw a 1961 Cadillac which I had watched previously, parked in an alley in the rear 500 block of South Central Avenue. The car doors were not locked. I opened the hood and short-wired it out, then I got in it and drove it to 3110 North Parkside and put it in the garage in the rear of this address, which I rented previously from Mrs. Crooks. The following day I started stripping this automobile. I took out the radiator, air conditioner, fenders, all the doors and glass. On June 30, 1961, 11:30 p. m. I pushed the stripped Cadillac out of the garage at 3110 North Parkside, into my sister’s garage at 3112 North Parkside. . . . My nephew . . . came over ... in the morning and we started cutting up the car with the torch when the fire started. . . .

Defendant moved at trial to suppress the confession on the ground that it was involuntary. In support of his motion defendant testified that he had been awake for approximately nineteen hours before his arrest and that he had been drinking steadily for approximately eight hours prior thereto; that after his arrest he was transferred to various police stations, but only for a brief period of time, and was then returned to the Shakespeare Avenue Station; that his requests for water and use of the telephone were denied but that he did not request coffee; that he was not questioned about anything pertaining to the burglary until Detective Jablon arrived to interrogate him approximately twelve hours after his arrest; that after Detective Jablon began the interrogation defendant did not request the use of a telephone; and that his mind was “all right” except that he was tired and sleepy. No other evidence was introduced.

A confession will not be deemed involuntary on the ground that at the time it was made defendant was tired. People v. Cox, 383 Ill 617, 50 NE2d 758. The only statute in effect at the time of defendant’s arrest relating to the right of an accused to contact his family or attorney (Ill Rev Stats, 1961, c 38, § 736b) provided for civil damages or imprisonment against anyone denying a person in custody the right to contact an attorney and his family within twenty-four hours. (This section has been augmented and supplanted by the Criminal Code of 1963.) Defendant relies upon Escobedo v. State of Illinois, 378 US 478, Haynes v. Washington, 373 US 503, and People v. Hartgraves, 31 Ill2d 375, 202 NE2d 33, as authority for his contention that his confession was involuntary and therefore inadmissible. The court in People v. Hartgraves, supra, stated at pages 379, 380:

As we read the Haynes case, the United States Supreme Court merely stated that the failure to warn a defendant and advise him of his right to remain silent, is an attendant circumstance “which the accused is entitled to have appropriately considered in determining voluntariness and admissibility of his confession.”
We do not, however, read the Escobedo case as requiring the rejection of a voluntary confession because the State did not affirmatively caution the accused of his right to have an attorney and his right to remain silent before his admissions of guilt.

Therefore, these cases are distinguishable since in the instant case there is no evidence that defendant requested the assistance of counsel, that he was not advised of his constitutional right to remain silent or that the confession was induced by promises or threats. The decision of the court on the admissibility of a confession will not be disturbed unless it is manifestly against the weight of the evidence. People v. McFarland, 386 Ill 122, 53 NE2d 884. We find no reason to disturb the trial court’s finding that the defendant’s statement was voluntarily given.

While not pertinent to our finding in this case, we would point out that the State argued that even if the confession had been erroneously admitted, there was sufficient independent testimony to support the conviction. This argument has been specifically rejected in Lynumn v. Illinois, 372 US 528. The United States Supreme Court, quoting with approval from Payne v. Arkansas, 356 US 560, stated at page 537:

“(T)his Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.”

Since the confession was properly admitted into evidence, the defendant’s guilt was proven beyond a reasonable doubt.

The judgment of the trial court is affirmed.

Affirmed.

McCORMICK and ENGLISH, JJ., concur.

       A “stop order” was in effect and his transfers apparently resulted from efforts to locate Detective Jablon, the officer who had the “stop order.” Moreover, at the time of his arrest defendant gave a fictitious name.

       Ill Rev Stats, 1963, c 38, § 103-3, effective January 1, 1964, expressly grants to any person arrested the right to communicate with his family and attorney within a reasonable time after his arrest. It provides:
      (a) Persons who are arrested shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls or in any other reasonable manner. Such communication shall be permitted within a reasonable time after arrival at the first place of custody.
      (b) In the event the accused is transferred to a new place of custody his right to communicate with an attorney and a member of his family is renewed.
      Ill Rev Stats, 1963, c 38, § 103-8, also effective January 1, 1964, provides that:
      Any peace officer who intentionally prevents the exercise by an accused of any right conferred by this Article or who intentionally fails to perform any act required of him by this Article shall be guilty of official misconduct and may be punished in accordance with Section 33-3 of the “Criminal Code of 1961” ... as heretofore and hereafter amended.