author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Ralston Purina Company, Plaintiff-Appellee, v. Roy B. Killam, Exr. of the Last Will and Testament of Pearl K. Johnson, Deceased, Defendant-Appellee—(Noble Johnson and Bernadine M. Hunter, Defendants-Appellants.)
    (No. 71-153;
    Fifth District
    March 8, 1973.

      Fribley & Fribley, of Pana, for appeHants.
    McDonald & Strickland, of Carrollton, (Hugh A. Strickland, of counsel, ) for appellee Ralston Purina Co.
    William L. Turner, of Shelbyville, for appellee Roy B. Killam.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered die opinion of the court:

This is an appeal from a judgment of the Circuit Court of Shelby County, (a) awarding attorney fees and other costs to plaintiff-appellee, operator of a grain elevator which as plaintiff filed an interpleader proceeding to determine who was to receive the proceeds of sale of crops planted and growing on farm land, subject to a life estate, which crops had not ripened and were not harvested at the time of the death of the life tenant; and (b) ordering that there be a pro rata distribution of the remaining proceeds of the sale of said crops between the estate of the life tenant on the one hand, and the remaindermen on the other hand.

The parties have presented a stipulation of facts which clearly and concisely sets out all the facts necessary for the determination of this appeal.

Ernest H. Johnson died testate on October 16, 1961, and devised to his wife, Pearl K. Johnson, hereafter called Life Tenant, a life estate in 65 acres of farm land in Shelby County, Illinois, and subject to said life estate the remainder interest was devised to Noble Johnson and Bernadine M. Hunter, hereafter called Remaindermen, the appellants herein. The life tenant leased this land to a farm tenant on a yearly crop sharing basis, same beginning on March 1, 1969.

The life tenant, died on August 12, 1969, at which time a crop of corn and soybeans was growing on the 65 acre tract and the landlord’s share thereof, having a value of $3,209.82, was thereafter harvested and was delivered to the elevator of the appeHee, Ralston Purina Company, hereafter called Ralston.

The life tenant, prior to her death, had paid for the landlord’s share of the fertilizer used in producing said crop, which amounted to the sum of $152.15.

The Remaindermen, herein, paid tire 1969 real estate taxes on said 65 acre tract in the amount of $714.12.

Inasmuch as the life tenant and the remaindermen could not agree as to the disposition of the proceeds of the landlord’s share of said crop of corn and soybeans, thereupon appellee, Ralston, instituted an Inter-pleaded proceeding in the Circuit Court of Shelby County, Illinois, and paid said sum of $3,209.82 to the Clerk of the Court, and made the claimants to said fund, namely, appellee, Roy B. Killam as Executor of the Estate of the Life Tenant, on the one hand and appellants, the Remaindermen as defendants thereto.

The appellee, Ralston, asked the court to award to it, the moneys it had advanced for filing fee and sheriffs fee, and also asked the court to award to Ralston a reasonable attorney fee, which was stipulated to be the sum of $250.

The trial court in its opinion held that: (A) Ralston was first entitled to be paid the filing fee and sheriffs fee advanced by it in the sum of $55.80, plus its attorney fee in the amount of $250.00; and (B) that the Principal and Income Act was not applicable, and had not repealed Section 36 of the Landlord and Tenant Act, by implication or otherwise, and that inasmuch as the Life Tenant had lived 164 days of the lease period, that therefore the Estate of the Life Tenant was entitled to receive 164/365 of the landlord’s share of the 1969 crop money, plus 201/365 of the fertilizer expenses advanced by the Life Tenant during her lifetime, less 164/365 of the 1969 real estate taxes paid by the Remaindermen, and that the Remaindermen were entitled to receive 201/365 of the landlord’s share of the crops, less 201/365 of the fertilizer costs paid by the Life Tenant, plus 164/365 of the 1969 taxes so paid by the Remaindermen.

The appellant Remaindermen admit that appellee Ralston is entitled to first recover out of the impounded funds, the filing fee and sheriff’s fee advanced by it in the amount of $55.80, but deny that appellee, Ralston is entitled to recover therefrom any attorney fees, and assert that all of the impounded funds, less only the sum of $55.80 due to appellee, Ralston and less the fertilizer bill of $152.15 due to the appellee, Estate of the Life Tenant, should be paid to Appellant Remaindermen.

Appellants contend that there is neither statutory nor case law authority for the allowance of attorney fees on a set of facts such as are here presented. Them position is supported by a line of cases, the latest of which is Curran v. Harris Trust & Savings Bank, 2 Ill.App.2d 395, 119 N.E.2d 483, which is based on the discussion of the question by our Supreme Court in Metropolitan Life Insurance Co. v. Kinsley, 269 Ill. 529, at 530, an interpleader proceeding, in which it was said:

“The general rule has always prevaffed in this State that solicitor’s fees could not be taxed as costs in chancery suits without statutory authority; that while a court of equity had discretion in awarding costs it must confine that discretion to the fees authorized by statute. [Citing cases.]”

Appellee Ralston contends that under Ch. 33, sec. 18, Ill. Rev. Stat., 1969, which allows a court discretion in allowance of costs and Firemens Insurance Co. of Newark v. Newell, 10 Ill.App.2d 371, at 375, 135 N.E.2d 116, at 118, which holds discretion in assessment of costs is reviewable and may be reversed if the discretion is abused, is here applicable and that there was no abuse of discretion since the parties stipulated to the reasonableness of the proposed fee. The argument overlooks the fact that the parties did not stipulate that attorney fees should be allowed in this case and that the trial court’s exercise of discretion is limited to such fees as are authorized by Statute.

We therefore reverse the trial court’s allowance of attorney fees.

The major controversy is as to whether paragraph 36 of Chapter 80, Ill. Rev. Stat. being Section of the Landlord and Tenant Act is applicable or whether par. 162 of Chapter 30 being Section 4 of the Principal and Income Act enacted in 1941 and amended in 1959, Ill. Rev. Stat. 1961, is applicable in determining the right of the estate of the life tenant to any portion of the proceeds of the sale of the crops growing on the farm land in question, unripened and unharvested, at the time of the death of the Me tenant on August 12,1969.

Appellants contend that the adoption of the Principal and Income Act in 1941 repealed by implication Section 1 of the Landlord and Tenant Act which was adopted in 1897; that the two statutes are irreconcilably repugnant, and thus the latter has abrogated the former to the extent that they are inconsistent and irreconcilable since it cannot be supposed that the General Assembly intended to enact laws which are contradictions, and cites cases wherein that principle was applied. Appellants however based their contention primarily on specific language to be found in the title, definitions in Section 1 and specific language in Sections 2, 3, 4 and 16 of The Principal and Income Act. At no place in that Act is specific reference made to the Landlord and Tenant Act.

Section 1 of “An Act in relation to Landlord and Tenant” provided in pertinent part;

“[I]f any such tenant for Me shall die before the day when any rent is to become due, his executors or administrators may recover the portion of rent wMch accrued before his death, and the remaindermen shall recover the residue.”

The pertinent part of Section 4 of the Principal and Income Act, par. 162, Ch. 30, Ill. Rev. Stat. 1961, which was in effect both at the time the Me estate came into existence and the death of the Me tenant provided:

“* 6 * Except as herein above provided there shall be no apportionment of income as between said tenant or his estate and the succeeding tenant or remainderman and the remaining portion of the income from periodic payments of interest and all other income whether periodic or otherwise, which becomes payable subsequent to the expiration of the preceding estate including, but not limited to, rents and annuities shall be paid to the person next entitled to income by the terms of the transaction by which the principal was established * *

For the quoted part of Section 4 to be applicable it has to be assumed that the Legislature considered the making and probate of a will creating a life estate or the death of a testator, as a “transaction by which the principal was established”. The trial court found that the Principal and Income Act did not specifically address itself to the factual situation of a crop share agreement between a life tenant and under tenant with the life tenant’s share contested between the personal representative and the remainderman, while the Landlord and Tenant Act did specifically address itself to that particular factual situation, and likewise found that neither courts, attorneys nor the Legislature speak of wills as transactions, or real estate as principal or that the death of a testator is synonymous with a “transaction by which the principal is established”.

There can be no question that the Landlord and Tenant Act contemplates exactly the situation at hand, namely, a crop share agreement between a life tenant and under tenant with the life tenant’s share of the growing crops contested between his personal representative and the remaindermen. See Wilson v. Hagey (1911), 251 Ill. 452.

Appellants’ contention is that the Landlord and Tenant Act was repealed by implication by adoption of the Principal and Income Act in 1941. They are able to cite no case law authority other than cases dealing generally with repeal by implication where statutes are irreconcilably repugnant. For authority, other than their interpretations of various sections of the Principal and Income Act, which they contend are persuasive of the intention of the Legislature to amend by implication, they point to a declaration of conflict between the two Acts and a prediction that the latter will be declared to have repealed the former by implication, citing Coordinated Transport v. Barrett, 412 Ill. 321, 106 N.E.2d 510, as authority, to be found in recent pocket part supplements to James, Illinois Probate Law and Practice, vol. 2, § 43.115 in a chapter dealing with trusts and their management and disposal. We find this to be of little persuasive value since the broad language contained in Coordinated Transport does not firmly support the conclusion of the commentator when read in connection with the cases on which it is based, and the comment ignores generally accepted principles applicable to repeal by implication; furthermore, the author of the text, William M. James, in exhaustive study of Section 4 of the Principal and Income Act does not even mention that it might be considered to be in conflict with the Landlord and Tenant Act, and discusses tire holding of Wilson v. Plagey, supra, (See James, vol. 2, § 43.115 at p. 276) without suggestion of its inapplicability since the Principal and Income Act was enacted.

Our Principal and Income Act is a substantial embodiment of a Uniform Principal and Income Act which has been adopted by numerous other states which also have separate apportionment legislation with reference to growing crops. In an annotation entitled “Uniform Principal and Income Act as applicable to estates under administration” 166 A.L.Pt. 428 there is no suggestion that that Act is in conflict with any separate apportionment acts, with reference to apportionment of receipts between tenants and remaindermen. In an annotation entitled “Rights in Respect of Crops as between Estate of Life Tenant and Remainderman” in 47 A.L.R.3d 784, which considers “the relative rights of the estate of a life tenant and the remaindermen in regard to crops already grown upon or commenced to be grown on the premises acquired or held under the life tenancy”, in discussing the effect of specific statutes providing for the apportionment of rent (III, sec. 12, 13 and 14 at page 809 et seq.) there is no suggestion that the Uniform Principal and Income Act might be in conflict with such apportionment statutes. In Horner, Probate Practice and Estates, Vol. 1, 1961 Rev. Vol. at-Sec. 275 “Rent due life tenant” reference is made to the apportionment between the personal representative of the life tenant and the remaindermen provided by the Landlord and Tenant Act with no reference made to the Principal and Income Act. In die same publication, volume 4, 1962 Rev. vol. sec. 2366 at page 192, tire author directs attention to the Principal and Income Act “which provides for the apportionment of income and principal between tenants and remaindermen”, making no mention of crop share rental or any conflict with the Landlord and Tenant Act.

As a result we are not persuaded that the two Acts are so irreconcilably repugnant as to apply repeal by implication. However if we assumed the two Acts to be in conflict the provision of the Landlord and Tenant Act would apply because it is a specific statute covering the particular factual situation here present, while the Principal and Income Act is a statute of general application and it is a cardinal principle of statutory construction that the more specific controls in preference to the general. The principle is referred to in Board of Education School Dist. No. 33 v. City of West Chicago, 55 Ill.App.2d 401, at 404, where the court states the rule:

“A familiar rule of statutory construction is that, where there are two statutory provisions, one of which is general and designed to apply to cases generally, and the other of which is particular and relates only to one subject, the particular provisions must prevail and must be treated as an exception to the general provision.”

as enunciated by our Supreme Court in County of DeWitt v. Greene, 320 Ill. 491, 151 N.E. 372.

Repeal by implication is not favored and this is particularly true when one statute deals with a specific subject matter and the other is of a general nature. In People v. Pennsylvania R.R. Co., 19 Ill.2d 122, at 129, 166 N.E.2d 86, at 90, our Supreme Court said:

“To give effect of appellee’s contentions would result in the repeal of section 8-13 by implication and run counter to numerous decisions of this court which hold that repeals by implication are never favored, and that the clearest case possible must be made before inference may properly be drawn that a later act, by implication repeals an earlier one. [Citing cases.] There is no clear case here but, on the contrary, there is much which mitigates against repeal by implication. It is a settled rule of statutory construction that where there is found in a statute a particular enactment, it is held to be operative as against the general provision of the same subject either in the same act or in the general laws relating thereto. [Citing cases.]”

We find that despite the broad language of the title of the Principal and Income Act, the definitions contained therein and language referring to “rents” and “apportionment” therein, and the language of section 16 of that Act, that it is general in nature, while the Landlord and Tenant Act is a particular enactment applying specifically to the factual situation here present. It is to be noted that Section 16 of the Act speaks in terms of “apportionment of receipts and expenses among tenants and remaindermen, which may have been adopted by trustees in the administration of trusts”, in the same paragraph as is stated that the Act “shall not be considered as declaratory of the law as it existed prior to its enactment” which the appellants contend clearly indicates repeal. We can comprehend of nothing more general than a reference to “the law”. Language subsequent to that reference indicates that “the law” referred to is the law applicable to “trustees in the administration of trusts”. This does not purport to contemplate nor specifically address itself to the simple situation embraced in the Landlord and Tenant Act. Furthermore, the fact that definitions and terms used in the Principal and Income Act are not ambiguous does not mean that they are specifically addressed to a given factual situation, whereas the language of the Landlord and Tenant Act is a particular enactment addressed to the exact factual situation at hand. We therefore conclude that the applicable provisions of the Landlord and Tenant Act were not repealed by the enactment of the Principal and Interest Act, and are applicable in this case.

For the foregoing reasons we approve the trial court’s application of the Landlord and Tenant Act.

We therefore reverse in part and affirm in part, and remand this cause for entry of a judgment consistent herewith.

JONES and CREES, JJ„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE ABRAHAMSON

license: Public Domain

text:
    Best Bearings, Inc., Plaintiff-Appellant, v. Challenger Parts Rebuilders, Inc., Defendant-Appellee.
    (No. 72-3;
    Second District
    March 14, 1973.
    Albert Brooks Friedman, Ltd., of Chicago, for appellant.
    McDonald, Schmidt & Baker, of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Best Bearings, Inc., the plaintiff and appellant in this action, appeals from an order of the circuit court of Du Page County, entered October 12, 1971, that denied its motion to file an amended complaint.

The original complaint, filed October 27, 1970, alleged that the plaintiff purchased a quantity of ball bearings and other automotive equipment from the defendant over a period of time beginning April 1, 1966, and ending September 3, 1966, for which it paid the sum of $14,-304.42. Count I of the complaint alleged that the sale was subject to the provisions of the Uniform Commercial Code relative to a warranty of good title (Ill. Rev. Stat. 1969, ch. 26, sec. 2 — 312) which warranty the defendant breached since the products were in fact stolen property. Count II of the complaint alleged that the defendant also breached the sales contract between the parties since it did not have good title to the property as warranted in their agreement.

On July 12,1971, the trial court dismissed the complaint with prejudice on the grounds that the plaintiff failed to bring its action for breach of contract or breach of warranty within 4 years of the date of the breach as required by section 2 — 725 of the Code. Ill. Rev. Stat. 1969, ch. 26, sec. 2 — 725.

The plaintiff then moved to file an amended complaint wherein it alleged, in addition to the matters raised in the original complaint, that the defendant had made false representations in regard to the title to the property and had committed fraud. The court denied that motion apparently on the grounds that an action in fraud was also limited by the four year provision in the Commercial Code.

Section 2 — 725 of the Commercial Code provides that an action for breach of any contract of sale must be commenced within 4 years after the cause has accrued and that the action accrues at the time the breach occurs regardless of the lack of knowledge of the breach by the aggrieved party. Ill. Rev. Stat. 1969, ch. 26, sec. 2 — 725 (1) and (2).

The subject of fraud is not expressly covered in the Commercial Code except to provide that the remedies for fraud or material misrepresentation include all remedies available under it for non-fraudulent breach. (Ill. Rev. Stat. 1969, ch. 26, sec. 2 — 721.) Section 2 — 725 relative to the limitations on actions for breach of a sales contract or the warranties provided for in the Code, states specifically that it does not “* * * alter the law on tolling of the statute of limitations”.

The amended complaint, and a supporting affidavit, alleged that the plaintiff was unaware that the ball bearings were stolen or that the defendant did not have good title to them until they were confiscated by the F.B.I. on November 2, 1966. Section 22 of the Limitations Act provides that in cases of fraudulent concealment an action may be brought at any time within 5 years after the person entitled to bring it discovers that he has such cause of action. Ill. Rev. Stat. 1969, ch. 83, gee. 23,

We agree that the plaintiff’s cause of action brought for breach of the sales contract under the Commercial Code was barred by the time provisions contained in Section 2 — 725. However, merely because plaintiff may have had alternate remedies that were outlawed under the Code, does not preclude plaintiff from bringing an action in fraud. Since the motion to file the amended complaint, including the count sounded in fraud, was brought within the 5 year limit of the Limitation Act it was not subject to a motion to dismiss for lack of timeliness. We are, therefore, of the opinion that the order denying the plaintiff’s motion to file an amended complaint was improper and must be reversed and the cause remanded for further proceedings.

Reversed and remanded.

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


author: Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur Beksel, Defendant-Appellant.
    (No. 72-65;
    Second District
    March 14, 1973.

      Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The defendant was found to be a sexually dangerous person on February 10, 1969 in the circuit court of Winnebago County, Illinois. He was committed under the Sexually Dangerous Persons Act. Ill. Rev. Stat. 1967, ch. 38, sec. 105 — 1.01.

This commitment was affirmed by this court in People v. Beksel (1970), 125 Ill.App.2d 322, 261 N.E.2d 40.

Subsequently, on August 31, 1970, the defendant filed a pro se petition for recovery in the circuit court of Winnebago County. The public defender was appointed to represent him and two psychiatrists were appointed to examine him. He was examined on March 29, 1971; a rather lengthy hearing was had on the defendant’s petition for recovery. Four inmates of the Illinois State Penitentiary testified as to sexual conversations and actions of the defendant. The defendant himself testified and denied the purported conversations and actions with these men. Another inmate of the penitentiary testified on behalf of the defendant to the contrary of the other four witnesses. In addition to this, a female friend of the defendant who had seen him once in the county jail testified that if he were released she would marry him so that he could be the father of her two children. She had never seen him in the penitentiary but had known him for fifteen years. The defendant also introduced evidence that he had employment if he were released.

At this hearing one psychiatrist testified that the defendant was sufficiently recovered to warrant out-patient treatment, but the other psychiatrist testified that the defendant had not recovered and needed further treatment in the institution. In addition to this testimony, pursuant to Ill. Rev. Stat. 1969, ch. 38, sec. 105 — 9, the court properly considered the progress reports from the Illinois State Penitentiary at Menard, concurred in by the staff psychologist, psychiatrist, and warden, which concluded that the defendant was still a sexually dangerous person. The trial court found that the defendant had not in fact recovered and was still sexually dangerous. It would appear that a substantial hearing was afforded the defendant and that the trial court was justified in finding by a preponderance of the evidence that he had not recovered. We have previously held that the defendant must prove by a preponderance of the evidence that he is no longer sexually dangerous. People v. Sweeney (1969), 114 Ill.App.2d 81, 251 N.E.2d 897.

Pending this appeal, the defendant’s attorney has filed a motion to withdraw as counsel claiming the appeal to be frivolous.

As counsel has indicated we do not substitute our judgment for that of the trial court. People v. Harter (1967), 86 Ill.App.2d 461, 468, 230 N.E.2d 15, 19; People v. Cansler (1971), 132 Ill.App.2d 19, 24, 267 N.E.2d 136, 140.

We further find the record discloses that the public defender adequately and properly represented the defendant in these proceedings. It would appear that he diligently performed his duties as attorney as indicated from the defense testimony outlined above.

After a total review of the record (as required by Anders v. California (1967), 336 U.S. 738, 18 L.Ed.2d 493, 498, 87 S.Ct. 1396), we conclude that the appeal herein lacks merit.

The motion to withdraw is allowed and the judgment of the trial court is affirmed.

Motion to withdraw allowed; judgment affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Polk, Defendant-Appellant.
    (No. 72-101;
    Second District
    March 14, 1973.

      John R. Snively, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, Joseph Polk, was charged in a two-count indictment by a grand jury of Winnebago County on February 11, 1970, with the offenses of rape and indecent liberties with a child in violation of section 11 — 1 and 11 — 4 respectively of the Illinois Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, secs. 11 — 1 and 11 — 4). The matter proceeded to trial before a jury on June 22, 1970 and separate verdicts of not guilty of rape and guilty of indecent liberties were returned. After post-trial motions and the defendant’s petition for probation were denied, he was sentenced to a term of 5 to 10 years in the penitentiary. This appeal followed.

The defendant first contends that Section 11 — 4 of the Code violates the due process clauses of both the United States and Illinois constitutions because it is “vague, indefinite and uncertain.” It provides as follows:

“Section 11 — 4. Indecent Liberties with a Child) (a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
(1) Any act of sexual intercourse; or
(2) Any act of deviate sexual conduct; or
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or person or both.
(b) It shall be an affirmative defense to indecent liberties with a child that:
(1) The accused reasonably believed the child was of the age of 16 or upwards at the time of the act giving rise to the charge; or
(2) The child is a prostitute; or
(3) The child has previously been married.
(c) Penalty.
A person convicted of indecent liberties with a child shall be imprisoned in the penitentiary from 4 to 20 years.”

It has been stated that a criminal statute violates the constitutional requirement of definiteness when it “* * * fails to give a person of ordinary' intelligence fair notice that his contemplated conduct is forbidden by the statute.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989, 996; People v. Ross, 41 Ill.2d 445, 448, 244 N.E.2d 608; People v. Reed, 33 Ill.2d 535, 538, 213 N.E.2d 278.

We are unable to agree with the defendant that section 11 — 4 fails to meet these standards. It is clear that any person of ordinary intelligence has fair notice what conduct is proscribed by the statute.

It is also argued that the penalty provisions of section 11 — 4 constitute “disproportionate, cruel and unusual punishment” in violation of the 8th amendment to the United States Constitution and Section 2 of Article II of the old (1870) Illinois Constitution and that the classification is “arbitrary, capricious and unreasonable.”

The penalty provisions of section 11 — 4 were discussed in the case of People v. Brown, 107 Ill.App.2d 406, 409, 246 N.E.2d 61, where the court stated ‘We would point out that the 4-year minimum suggests legislative unhappiness with this type of crime. We may judicially notice that this legislative declaration of public policy suggests more than a ‘powder puff approach to defendants guilty of such a crime.”

In People ex rel. Barrett v. Bradley, 391 Ill. 169, 171, 62 N.E.2d 788, the Supreme Court of Illinois quoted People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 36 N.E. 76, 79:

‘When the legislature has authorized a designated punishment for a specified crime, it must be regarded that its action represents the general moral ideas of the People, and the courts will not hold the punishment so authorized as either cruel and unusual or not proportioned to the nature of the offense, unless it is a cruel or degrading punishment, not known to the common law, or is a degrading punishment which had become obsolete in the state prior to the adoption of its constitution, or is so wholly disproportioned to the offense committed as to shock the moral sense of the community.”

Subsection (a) (1) of Section 11 — 4 replaced the former offense of statutory rape which provided for a sentence of from one year to life. The Illinois Criminal Code, enacted in 1961, modified the title of the offense and provided a penalty of from one to twenty years imprisonment upon conviction. In 1967, the Code itself was amended, in accordance with the obvious concern of the legislature as pointed out in the Brown case, to provide the present penalties. The Committee Comments to the 1961 Code state that “The main emphasis of section 11 — 4 is that of victimizing the child’s immaturity, knowingly and deliberately.”

We are of the opinion that the punishment designated by the legislature for this offense represents the moral idea of the People in'regard to crimes of this nature and cannot be considered either cruel or disproportionate to the offense itself. We therefore reject the contention of the defendant that the statute is unconstitutional.

The defendant next argues that he was denied his right “to demand the nature and cause of the accusation” as guaranteed him by the Illinois Constitution and as provided in the Illinois Code of Criminal Procedure. Ill. Const. 1870, Art. II, sec. 9; Ill. Rev. Stat. 1969, ch. 38, sec. 111 — 3.

Count II of the indictment charged “that on the 30th day of December, 1969, in the County of Winnebago and State of Illinois, one Joseph Polk, a person of the age of seventeen (17) years and upwards, committed the offense of Indecent Liberties with a child, in that he, performed an act of sexual intercourse with Vickie Lynne Worley, a child under the age of sixteen (16) years, in violation of Paragraph 11 — 4, Chapter 38, Illinois Revised Statutes.”

“An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.” (People v. Patrick, 38 Ill.2d 255, 258, 230 N.E.2d 843, 845; People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97.) As can be seen, the indictment against the defendant is stated in the exact language of the statute but he maintains it was insufficient since it failed to include an allegation that he had knowledge that the girl was under the age of 16. We do not agree.

Subsection (b) of the statute provides that it shall be an affirmative defense if the accused reasonably believes that the child is 16 years of age or over. It is not necessary to include allegations negating a possible affirmative defense. If it were otherwise, it would also be necessary to allege that the child was neither married nor a prostitute since they also are affirmative defenses under the statute.

The next three arguments advanced by the defendant relate to the sufficiency of the evidence to convict him since he maintains that the prosecution failed to prove that sexual intercourse occurred; that he was required to prove his innocence; and that the evidence failed to prove his guilt beyond a reasonable doubt. In order to discuss these contentions, a brief summary of the evidence is necessary.

Charlotte Worley, the aunt of 11-year-old Vicki Lynne, testified that the child visited at her home in Rockford over the Christmas holidays of 1969. On December 30, the defendant, aged 51, an acquaintance of the Worleys, took Vicki in his automobile, ostensibly to pick up his son in a nearby town. He returned with the girl approximately lVz hours later. Vicki appeared scared and told her aunt she had to go home and talk to her mother.

Vicki testified that the defendant picked her up at her aunt’s house on December 30 but stopped the car and, after drinking from a jug, started “messing around.” He got on top of her and put his “private on her private thing.” On cross-examination, she stated that it “must have went in her private parts.” She also testified that she had never done this with anyone else.

A Freeport physician testified that he examined Vicki on January 4 and found abrasions in the entrance of her vagina and that she had gonorrhea of recent origin.

The defendant testified that he was in Brownie’s Tap in Rockford from approximately 6:00 P.M. to 10:00 or 10:30 P.M. on December 30. He denied seeing Vicki on that date. Two alibi witnesses testified that they saw the defendant in Brownie’s during those same hours. The defendant and his wife testified that they never had gonorrhea.

The foregoing facts are circumstances which were submitted to the jury to determine whether or not the defendant was guilty. It was a question of fact for the jury to determine.

Sexual intercourse occurs when there is any penetration, however slight, of the male organ into the female organ. People v. Washington, 70 Ill.App.2d 452, 460; Ill. Rev. Stat. 1969, ch. 38, sec. 11 — 1(b).

Although the defendant introduced evidence of alibi, the jury was not obligated to believe the alibi witnesses. (People v. Johnson, 123 Ill.App.2d 69, 77, 259 N.E.2d 621, 625; People v. Setzke, 22 Ill.2d 582, 586.) Here, the testimony of the defendant and his alibi witnesses were contradicted by Vicki and her aunt and it was the proper function of the jury to decide what testimony to believe. As has been pointed out in the case of People v. Brown, 131 Ill.App.2d 669, 681, 267 N.E.2d 142, 151:

“An alibi is an affirmative defense and where the corpus delicti is proved, together with evidence tending to show the guilt of the defendant, the burden of establishing the alibi rests upon him although upon the whole case his guilt must be proved beyond a reasonable doubt. It is the function of the jury to make a determination of the credibility of witnesses and the weight to be given to the testimony. This court will not substitute its judgment for that of the jury merely because the evidence is conflicting.”

The evidence in the record before us raises no reasonable doubt as to the guilt of the defendant and, as has been said many times before, it is not for us to interfere with the determination of the jury because some contrary evidence was introduced.

The defendant also argues that the court committed error when it refused to give the jury certain instructions tendered by him, especially an instruction on alibi. Alibi instructions are discussed in connection with IPI — Criminal Instruction No. 24.05 where the committee recommended that no such instruction be given. This position was recently upheld by the Supreme Court in the case of People v. Poe, 48 Ill.2d 506, 511, 512, 272 N.E.2d 28, 32. The other instructions tendered by the defendant, and refused, were either repetitious or unnecessary and we are satisfied that the jury was adequately instructed.

It is next contended that the verdict of guilty of indecent liberties with a child was absolutely inconsistent with the verdict of not guilty of rape since, so the defendant maintains, in finding him not guilty of rape, the jury decided that an act of sexual intercourse had not occurred. Such a conclusion is, of course, wholly unwarranted since the offense of rape is based on an act of intercourse with a female “by force and against her will # # (Ill. Rev. Stat. 1969, ch. 38, sec. 11 — 1(a).) In the case of People v. Henderson, 119 Ill.App.2d 403, 409, 256 N.E.2d 84, 87, a conviction of rape was reversed where the element of force was not sufficiently proven but a conviction for indecent liberties for the same incident was affirmed.

The defendant also maintains that the verdict was void since it provided only that the jury found him guilty “* * * of the offense of Indecent Liberties with a Child * * *” and failed to include the material element that he had performed an act of sexual intercourse. Aside from the fact that the form of verdict was shortened with the approval of defense counsel, we are of the opinion that the verdict was legally sufficient. A verdict is not to be construed with the same strictness as an indictment and will be upheld if the jury’s intention can be ascertained with reasonable certainty. People v. Headrick, 65 Ill.App.2d 169, 174, 175; People v. Pignatelli, 405 Ill. 302, 305.

Lastly, it is contended that the defendant should have been released on probation or the sentence, being excessive, should be reduced. It is disclosed from the investigation in connection with the defendant’s application for probation, and the hearing thereon, that he had previously been convicted in 1936 and 1939 on charges of forgery and theft of a motor vehicle in the states of Arkansas and Missouri respectively. In 1963, he was convicted of forgery, on a plea of guilty, in Winnebago County and placed on probation for 3 years. The probation was revoked in 1964 and the defendant sentenced to 3 to 5 years in the penitentiary. The revocation petition was based on an allegation that he had committed the offense of sexual delinquency of a child.

A denial of an application for probation is within the sound discretion of the trial court and will not be disturbed unless. clearly abused. (People v. Smice, 92 Ill.App.2d 83, 86, 234 N.E.2d 47.) Also, if a sentence which is imposed is within the limits proscribed by statute, it will not be disturbed unless it constitutes a great departure from the fundamental law and its spirit or purpose or is disproportionate to the nature of the offense. (People v. Buell, 120 Ill.App.2d 367, 372, 256 N.E. 2d 845.) From the record before us, we cannot conclude that the trial court acted improperly in either instance.

For the reasons stated, the judgment and sentence of the trial court will be affirmed.

Affirmed.

GUILD and T. MORAN, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Smalley, Sr., Defendant-Appellant.
    (No. 72-25;
    Second District
    March 15, 1973.

      Paul Bradley and Ralph Reubner, both of Defender Project, for appellant.
    Charles Marshall, State’s Attorney, of Sycamore, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant, Donald Smalley, Sr., was tried before a jury in the circuit court of DeKalb County and found guilty of the attempted murder of Lawrence Williams and of aggravated assault upon April Backstrom (charges of aggravated battery and aggravated assault upon Lawrence Williams were dropped by the State at the close of the evidence). He was sentenced to 3 to 20 years on the charge of attempted murder and 1 to 5 years on the charge of aggravated assault, to be served concurrently.

Defendant appeals, contending (1) that the indictment failed to state the offense of aggravated assault; (2) that he was not proved guilty of attempted murder beyond a reasonable doubt; (3) that the court erred in the receipt of evidence and the giving of instructions; (4) that the court and State improperly emphasized defendant’s prior convictions; and (5) that the State’s closing argument, and a remark made by the court during that argument, were prejudicial.

Lawrence Williams testified for the prosecution that on January 16, 1971, he called defendant from Chicago and was told to come to the Smalley home in Clare, Illinois, to collect a debt. He left in company with Alice Backstrom, bringing a .38 caliber pistol loaded with six bullets which he placed in a zippered briefcase on the front seat of his car. He explained that he did not want to leave it in his apartment because of a previous burglary.

When he arrived at the Smalley residence, after accidentally driving a block past the house, he saw a pick-up truck in the driveway but no cars. He had started to pull in front of the garage to back out, thinking that no one was home, when they saw defendant in the garage doorway about 4 or 5 feet from the hood of the car. Williams started to get out of his car but got back in when Miss Backstrom yelled that defendant had a gun.

Williams testified that defendant started shooting a rifle, with the first shot going into the left hand door post and other shots through the windshield. Williams said he then pulled his gun from the case, and returned the fire through the windshield from a lying position. He then was able to back out of the driveway. At the time, Williams was on probation for burglary, and was not supposed to have a gun in his possession. He was granted immunity to testify.

April Backstrom testified for the State that she lived with Williams, and that he normally took the gun with him when leaving his apartment. Essentially she corroborated Williams’ version of the incident.

Detective Harold Eckhardt and Police Captain Melvin Shaw testified that one bullet hole was found above the door frame of the garage, about 7Vz feet above the ground. Four empty rifle cartridges were found on the floor of the garage. The inside and back wall of the garage were checked, but no other bullet holes were found. Tire tracks from the left front wheel of Williams’ car were approximately 16 feet from the garage door. Glass and a blood-like substance were found 16 feet from the door of the garage.

Detective Sergeant James Laben testified that Donald Smalley made a statement on the evening of January 16, 1971, in which he said that Lawrence Williams claimed that defendant owed him money, and had made numerous calls with reference to it. He had called the previous Wednesday and told defendant’s wife that defendant had better send the money or he would send someone to collect it. The last call had been on the morning of the incident, when Williams said “he would be out today to get some money or some ass.” When Williams arrived, he parked where he could see the house, and defendant took his rifle to the garage. When Williams pulled up, he stepped out of the car and fired once at defendant. Defendant grabbed his rifle and returned a shot. Williams got back in the car and fired five shots through the windshield. Defendant fired three more shots, and Williams backed out of the driveway and took off. Defendant returned to the house and called the Sheriff.

Fred Aubey, a ballistics expert, testified that he examined the windshield of Williams automobile and determined that the six holes on the passenger side of the windshield were caused by a projectile originating from within the vehicle, and the black marks on them were similar to powder bums from the close range firing of a weapon. The three holes in the lower center of the windshield had no powder patterns, and originated from outside the vehicle. There was also a penetrating hole on the driver’s side in the lower corner. He agreed that the holes could have been produced by almost anything projected at a high velocity, but said that they had the physical appearance of bullet holes. He could not say whether the six holes on the passenger side were made by one gun, or whether they were made in rapid succession.

Donald Smalley, Sr., the defendant, testified on his own behalf that Williams called him on the morning of the incident and said he was coming to defendant’s house for the money he claimed defendant owed him. Defendant denied owing him money. After the call, defendant called the Sheriff in Plymouth, Indiana, and learned Williams was wanted for nonpayment of child support. Defendant then called the DeKalb Sheriff’s Department and told them a man wanted in Plymouth was coming to his house, and asked if they would apprehend him. When Williams arrived, he drove past the house, turned around, came back, and parked for 8 to 10 minutes at a spot from which the house was visible. When Williams began to drive toward the house, defendant yelled for his wife to call the Sheriff. Williams pulled into the driveway, drove near the garage, and stopped 15 to 18 feet away. He stepped from the car with a pistol in his hand, and seeing this, defendant dove for his rifle and told Williams to “get out of there”. Williams fired a shot at defendant from outside the car, and defendant returned the fire. Williams then got back in the car and fired four more shots through the windshield. Defendant fired three more shots through the windshield of the car. After the battle, defendant phoned the DeKalb Sheriff’s Department.

Leota Smalley, the defendant’s wife, testified that when Williams arrived, he waited for 10 minutes on the side of the road, pulled his car onto the driveway, and stepped out. She heard a shot and saw him get back in the car. She saw nothing further because defendant hollered for her to call the sheriff, but she heard four other shots.

Nancy Smalley, defendant’s daughter-in-law, testified that she saw Williams’ car go by, come back, and stop for five or ten minutes. She said Williams then drove quicldy into the driveway, jumped out before the car had stopped, and shot a gun, making a “pinging” sound. There was then a loud shot, and Williams jumped back in tire car. She said both the man and woman in the car were shooting, and saw five shots inside the car. On rebuttal, a detective testified that, questioned after the shooting, she had said only that she heard a noise, went to the window and saw a ball of fire in the car, and went into the living room.

Patrol Sergeant George Shaw testified in rebuttal that he was in charge of receiving all calls at the DeKalb Sheriff’s Department on the day of the incident, and there was no call from Donald or Leota Smalley concerning Williams before the incident took place.

Defendant’s first contention is that the indictment, charging him with aggravated assault, is insufficient in that it does not set forth the nature and elements of the offense charged. (Ill. Rev. Stat. 1971, ch. 38, par. 111 — 3(a).). The indictment charged that defendant “committed the offense of Aggravated Assault in that he, without lawful authority, assaulted April Backstrom with a deadly weapon, namely a gun # # # »

The purpose of an indictment is to apprise a defendant of the exact crime with which he is charged, so that he may prepare his defense, and may plead the judgment in bar of a subsequent prosecution for the same offense. (People v. Grieco (1970), 44 Ill.2d 407, 409, U.S. cert. den., 400 U.S. 825; People v. Harvey (1972), 53 Ill.2d 585, No. 45078.) Whether these objectives are met must be determined by the substance of the charge, rather than by the technicalities of the language. (People v. Dzielski (1970), 130 Ill.App.2d 581, 585-586.) This indictment contained the statutory language (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2(a)(1)), and further stated that the instrument used was a gun. In addition, on defendant’s motion, a bill of particulars was provided setting out that the assault was perpetrated by defendant’s shooting of the gun. The indictment was sufficient to support a plea of double jeopardy should the need arise, and defendant was provided with adequate information to prepare his defense. See People v. Fulton (1967), 84 Ill.App.2d 280, 283, U.S. cert. den., 390 U.S. 953. See also People v. Jones (1973), 53 Ill.2d 460, No. 45144.

Defendant next contends that he was not proved guüty of attempted murder beyond a reasonable doubt. He argues first that the State has not proved that he, rather than WUliams, fired the first shot, and thus that he was not acting in self-defense. The testimony of those present as to who fired the first shot is contradictory. Lawrence Williams and April Backs tom stated that Williams was unarmed when he left the car and was fired upon, and that Williams then fired all shots from within the car. Defendant and Nancy SmaUey said that Williams had a gun in his hand when he stepped from the car, and fired a shot at defendant before returning to the car, causing defendant to fire back. The ballistics expert’s testimony indicating that six shots were fired from within the car supports the testimony of the prosecution witnesses. Nancy Smalley’s testimony that two guns were fired from inside the car is unsupported by other testimony, and was discredited by the officer’s statement that she did not say this on the night of the incident. The credibility and weight to be given to the testimony of witnesses is in the first instance a question for the jury, and its finding wiU not be disturbed unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Nicholls (1970), 44 Ill.2d 533, 540.) The jury could properly conclude from the evidence that defendant fired the first shot.

Defendant further argues that it was not proved beyond a reasonable doubt that he acted with intent to commit the crime of murder. In this regard, he argues that the court erred in not allowing him to testify as to his intent on direct examination. The court ruled that such testimony would be self-serving, and that it was up to the jury to determine his intent from the facts placed in evidence. The court also ruled that he could not testify as to whether he believed Williams meant to harm him, as this too was a question for the jury.

In criminal cases where the intention, motive, or belief of the accused is material to the issue, he is allowed to testify directly to the fact. (People v. Biella (1940), 374 Ill. 87, 89; People v. Johnson (1969), 108 Ill.App.2d 150, 159.) The circumstances under which the act in question was done usually serve to manifest to a great degree the intent of the actor and may overcome his declaration as to his intention, but he has the right to testify as to his intention and to have the circumstance surrounding the act considered in connection with his testimony.

Defendant was erroneously denied the opportunity to directly testify to his intention and belief. However, such error was harmless beyond a reasonable doubt, since defendant did testify as to these elements on cross-examination and on questioning by the court. (People v. Peters (1914), 265 Ill. 122, 130; overruled on other grounds, 4 Ill.2d 399; Wohlford v. People (1894), 148 Ill. 296, 300. Contra, People v. Arcabascio (1947), 395 Ill. 487, 500.) On cross-examination, defendant testified that he wasn’t trying to hit Williams, and answered affirmatively questions to the effect that he was only trying to scare Williams. He further stated that he called the police in the morning because “he knew what the guy would do if he come to my house.” He said he didn’t tell his wife that he was in fear of his life because he “didn’t want to scare her to death”, but that he hollered for his wife to call the Sheriff when Williams started coming toward the house. On questioning by the court as to why he didn’t tell the Sheriff anything about fear in the morning call, he said he didn’t know for a fact that the man was armed until he saw the gun.

Defendant contends that the court erred in not allowing defense witness Leota Smalley to testify as to the reputation for violence of Lawrence Williams. However, there was no foundation laid which qualified her to give reputation testimony. Evidence of reputation, to be admissible, must be based on contact with the subject’s neighbors and associates rather than upon the personal opinion of the witness. (People v. Moretti (1955), 6 Ill.2d 494, 523-524, U.S. cert. den., 356 U.S. 947.) Mrs. Smalley testified only that she was well acquainted with Williams, that he used to come to the truck stop where she worked, and that he visited the Smalley residence at Clare with his wife. Nowhere does she state that she had any knowledge of his reputation in the community. In fact, defense counsel argued that “* * * he has been traveling over the countryside. His reputation is not clear. People don’t know him * # *. He didn’t stay home long enough to establish a reputation * # *. He is largely a transient.” The court was correct in refusing to allow such testimony. The fact that the court erroneously stated that Mrs. Smalley could testify to specific threats in no way prejudiced the defendant. See People v. Myers (1968), 94 Ill.App.2d 340, 350.

The defendant next contends that emphasis of his prior convictions by the court and by the State constituted reversible error. We do not agree. On direct examination, defendant testified that in 1953 he got one to three years for issuing checks with insufficient bank funds in Ohio; that in 1943 he was convicted for transporting stolen vehicles outside the State line, and sentenced to 4 years, of which he served ZVz years; that he was convicted for attempting to break jail; and that he had a 1965 felony conviction in Plymouth, Indiana. As to this last conviction, defense counsel asked, “That was the one you mentioned about checks?” Defendant answered “Yes”. The court then interrupted, saying “I thought he said Ohio.” It was clarified that these were two separate felony convictions. The court then asked:

“You have four felony convictions?
Answer: Yes, sir.
The Court: Ohio, two federal ones, and Plymouth?
Answer: Yes, sir.
The Court: Go ahead.”

The court’s questions showed no evidence of disbelief or of an attempt to discredit the witness, but merely served to clarify the nature and number of his convictions. Defendant’s cases are distinguishable on their facts. People v. Martin (1966), 66 Ill.App.2d 290; People v. Walton (1969), 118 Ill.App.2d 324; People v. Thomas (1972 Abst.), 3 Ill.App.3d 761.

On cross-examination, the prosecutor questioned the defendant about the felonies to which he had testified, and then asked whether defendant had ever been placed on probation in Ohio. Over defense counsel’s objection, defendant was allowed to answer that he had been, for bad checks. The prosecutor also asked about defendant’s acquaintance with the Sheriff of Plymouth, Indiana, and over defense counsel’s objection that the question implied that he was arrested, defendant answered that he had been there a couple of times since Harvey Phillips was elected, but that Phillips was not the Sheriff at the time that he was arrested in Indiana.

The defendant now contends there was error in the prosecutor’s questioning. He argues first that introduction of prior convictions to impeach must be by the record or an authenticated copy of the conviction, rather than by cross-examination. (People v. Parish (1972), 6 Ill.App.3d 587, 590.) However, it was the defendant who opened the door by testifying as to his prior convictions. The defendant cannot now claim error or prejudice. (People ex rel. Walker v. Pate (1972), 53 Ill.2d 485; People v. Nastasio (1963), 30 Ill.2d 51, 58, U.S. cert. den., 377 U.S. 911; People v. Scott (1967), 82 Ill.App.2d 109, 117.) Defendant further argues that even if the prosecutor’s questioning regarding the previously testified to convictions was proper, his questions as to defendant’s probation in Ohio and association with a Sheriff in Indiana were improper, since credibility of a witness cannot be impeached by anything less than infamous crime convictions. It was proper for the prosecution to question defendant as to a conviction not previously testified to, since by testifying on direct examination that he had four felony convictions, defendant inferred that he had no other convictions, and opened the door to impeachment of this testimony. (People v. Bey (1969), 42 Ill.2d 139, 147.) Furthermore, since defendant had already testified to four convictions, the disclosure of another conviction would not have the prejudicial effect which would exist if there were no earlier proof of other criminal conduct. (People v. Bey (1969), 42 Ill.2d 139, 147.) In the context shown by the record, the prosecutor’s question as to defendant’s acquaintance with the Plymouth, Indiana, Sheriff did not imply that he had been arrested.

Defendant next contends that the court failed to properly instruct tire jury on the justifiable use of force. Defendant tendered three instructions on justifiable use of force: one on use of force in defense of self; one on use of force in defense of dwelling; and one on use of force in defense of property. After much discussion, the court ordered that the instructions on defense of self and defense of property be given; but that the one on defense of dwelling be refused. However, the court became confused as to the number of the instructions and, while intending to refuse the defense of dwelling instruction, inadvertently refused I.P.I. 24.08, which was the defense of property instruction. The result was that only the instruction on defense of self was received by the jury.

Defendant is entitled to the benefit of any defense shown by the evidence. (People v. Khamis (1952), 411 Ill. 46, 53; People v. Boothe (1972), 7 Ill.App.3d 401, 403.) However, all testimony for the defense was to the effect that Williams stepped from the car and immediately shot at defendant. There is no evidence that Williams threatened defendant’s home or property, or that defendant acted in defense of anything except himself. In addition, any error in refusing these instructions would be harmless due to the giving of the self-defense instruction, which put the issue of justifiable use of force in front of the jury. Furthermore, to preserve this issue for appeal, defendant should have specifically informed the trial court of its mistake which kept the defense of property instruction from being given. The court would then have had an opportunity to rectify its oversight. Defendant’s general contention in the motion for new trial that the court erred in giving and refusing instructions was not sufficient to inform the court of its error. A defendant cannot assign error to that which he acquiesced in and gave the court no opportunity to correct. People v. Jones (1968), 107 Ill.App.2d 1, 8.

Defendant next argues that he was deprived of a fair trial by prejudicial comments of the prosecutor during closing argument. None of the alleged errors were objected to, nor were they specifically raised in defendant’s motion for a new trial. Since the arguments in our view were not of a nature which would deprive defendant of a fair trial, we do not consider them. People v. Bambulas (1969), 42 Ill.2d 419, 425, U.S. cert. den., 396 U.S. 986; People v. Ewell (1972), 5 Ill.App.3d 443, 448, 449.

Defendant’s final contention is that a comment made by the court during the prosecutor’s closing argument constituted reversible error, in that it indicated a prejudicial attitude toward the defendant:

“STATE’S ATTORNEY: * * * The daughter-in-law. She says April Backstrom had a gun, too. She said there were balls of fire. They must have been shooting blanks because there are, count them, one, two, three, four, five, six, from the .38, and four from the 308 deer rifle, and one almost got Williams. There were only ten shots. What else was he trying in this obvious attempt to scare them?
THE COURT: I hope I don’t scare him.”

While no objection was raised, the conduct of a trial judge is of such importance that the contention should not be deemed waived. People v. Sprinkle (1963), 27 Ill.2d 398, 399-401.

It is true that there is a high duty on the court to avoid giving any impression to the jury that would in any way influence their verdict. (People v. Walinsky (1921), 300 Ill. 92, 97; People v. Henderson (1966), 72 Ill.App.2d 89, 93-94.) However, the court’s comment is so ambiguous as to have had no effect upon the jury. It should not be deemed prejudicial error.

We affirm the judgment below.

Judgment affirmed.

T. MORAN and GUILD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Richard Williams, Defendant-Appellant.
    (No. 72-85;
    Second District
    March 15, 1973.
    Ralph Reubner, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Kenneth Richard Williams, the defendant, appeals from the judgment below which revoked probation and imposed a sentence of 2-10 years on the original charge of burglary. He claims that the trial court did not have jurisdiction to conduct the revocation hearing and to impose sentence because of an unreasonable delay in proceeding.

Defendant pleaded guilty to burglary on May 10, 1968, and was placed on probation for a period of 5 years. On April 25, 1969, the State’s Attorney of Lake County, Illinois, filed a petition to revoke defendant’s probation for failure to report to the Probation Officer in Macon County, where the probation had been transferred. A warrant immediately issued. On January 23, 1970, defendant was arrested in Decatur, Illinois, for burglary, and on this same date the Sheriff of Lake County placed a detainer on the defendant while he was in the custody of Macon County officials.

On March 5, 1970, the Lake County State’s Attorney wrote to the State’s Attorney of Macon County stating that his office would file a petition for revocation on the Lake County charge and would recommend a sentence to be concurrent with the sentence which would be imposed in Macon County. The defendant pleaded guilty to the Macon County charge on March 11, 1970, and was sentenced to 2-10 years. The State’s Attorney of Lake County first became aware of this disposition on March 29, 1971.

On April 1, 1971, the defendant filed a pro se motion to quash the 1969 petition to revoke probation. This was denied. On May 25, 1971, defendant moved to quash the supplemental petition which had been filed on May 18, 1971, and had added the Macon County conviction as an additional ground for revocation of probation. This motion also was denied after an evidentiary hearing, and the court then conducted the hearing on the merits of the probation violation and entered the judgment from which defendant here appeals.

The defendant argues that the delay of some 14-16 months, (depending on whether time is measured from the date of the January 23, 1970, detainer or from the March 11, 1970, guilty plea in Macon County) to the date of the filing of the supplemental petition on May 18, 1971, amounts to an unreasonable delay which deprived defendant of his United States Sixth Amendment Constitutional right to a speedy trial as implemented by Ill. Rev. Stat. 1971, ch. 38, sec. 103 — 5(a). Defendant urges that the cases which have interpreted the 120 day provision governing a speedy trial should, by analogy, be applied to the hearing to revoke probation (Ill. Rev. Stat. 1971, ch. 38, secs. 117 — 3(a),(b)) and the consequent delay in sentencing of the defendant on the theory that both statutory provisions are expressions of legislative intent to implement the right to a speedy trial.

The State responds that no jurisdictional question is involved since one admitted to probation remains subject to the jurisdiction of the court by the express terms of Ill. Rev. Stat. 1971, ch. 38, sec. 117 — 1(c) during tire probation period, within which the hearing was conducted. The State argues that the 14-16 month interval is not unreasonable under the circumstances of this case because no prejudice resulted to the defendant since he did not request an earlier hearing and received a concurrent term in Lake County in accordance with tire bargain he made with the Macon County authorities.

We agree that the trial court did not lose jurisdiction under the facts of the case. Issuance of the warrant for violation of probation within the probationary period was in itself sufficient to maintain the court’s jurisdiction over the defendant. Ill. Rev. Stat. 1971, ch. 38, sec. 117 — 3(a); People v. Riso (1970), 129 Ill.App.2d 356, 360; People v. Cahill (1921), 300 Ill. 279, 284-285.

The court may lose the power to conduct a hearing on the issue of the alleged violation of probation if it does not proceed within a reasonable time after the apprehension of the probationer. (Ill. Rev. Stat. 1971, ch. 38, sec. 117 — 3(b).) We cannot agree with defendant’s theory, however, that the 120 day statute governing trials is to be imported even by analogy into the statutory scheme for probation violation hearings. The legislature has not seen fit to treat trials and revocation hearings in the same way (cf. Ill. Rev. Stat. 1971, ch. 38, sec. 103 — 5 and sec. 117 — 3); and the courts have likewise recognized distinctions between trial and probation revocation proceedings. People v. Simms (1969), 108 Ill.App.2d 281, 282; People v. Kostaken (1958), 16 Ill.App.2d 395, 398; People v. Price (1960), 24 Ill.App.2d 364, 372.

Defendant has placed considerable reliance on People v. Vaughn (1972), 4 Ill.App.3d 51, but we think it inapposite since it specifically ruled on the 120 day provision of section 103 — 5.

In People v. Kostaken, 16 Ill.App.2d 395, an interval of 17 months between the date of the issuance of a warrant for violation of probation and the hearing did not deprive the accused of a speedy trial. Defendant seeks to distinguish the case on the ground that it ruled on the provision of the former statute (Ill. Rev. Stat. 1957, ch. 38, sec. 789) which did not contain any limitation of time within which a hearing must be held to revoke probation, whereas the successor statute before us includes the requirement of a “reasonable time” after the apprehension of the probationer within which a hearing must be held. We cannot agree that under the former statute a hearing could be indefinitely postponed, limited only by the period of probation. We think the former statute also was subject to the constitutional right of a defendant in a probation revocation hearing to constitutional protections. (See People v. Price, 24 Ill.App.2d 364, 376.) The present statute specifying a reasonable time for the hearing is the expression of the constitutional protection which was implied in the former section 780.1. See Smith-Hurd Annotated, ch. 38, sec. 117 — 3, Committee Comments.

In determining whether the period of time here involved was reasonable, a lack of prejudice to the defendant caused by the delay, either claimed by him or evident from the record, as well as his failure to request an earlier hearing is relevant. People v. Kostaken, 16 Ill.App.2d 395, 399.

Here the defendant, although aware of the proceedings pending in Lake County, did not request an early hearing. It is apparent that the delay was not oppressive and that, since he was given a concurrent sentence, he was not prejudiced under the circumstances of this case because of the delay. We find that the defendant was given a hearing on the petition to revoke probation within a reasonable time under all the circumstances, and that therefore the court had jurisdiction to impose the sentence after revoking probation.

We therefore affirm the judgment below.

Affirmed.

T. MORAN and GUILD, JJ., concur.

       The Uniform Mandatory Disposition of Detainers Act (ABA Standards Relating To Speedy Trial, Approved Draft, 1968-Appendix) has the basic purpose of permitting a prisoner to clear a detainer based upon an outstanding indictment, information or complaint pending in the same state by making request for final disposition. The proper correctional official is required to inform a prisoner within one year after a detainer has been filed against him at the institution. If the trial and the charge is not held within a reasonable time after such request or if the prisoner is not notified within one year, the charge becomes void and the detainer is dismissed with prejudice. Illinois apparently has no formal sanction of the common detainer practice. (See People v. Mikrut (1969), 117 Ill.App.2d 444, 450; People v. Akins (1971), 270 N.E.2d 107, 109.) Adoption of a uniform mandatory disposition of detainer statute in Illinois, in our view, could obviate problems similar to the one before us.


author: Mr. PRESIDING JUSTICE GUILD Mr. PRESIDING JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Del Genio, Defendant-Appellant.
    (No. 71-341;
    Second District
    February 15, 1973.

      Supplemental opinion upon denial of rehearing April 10, 1973.

      Paul Bradley, of Defender Project, of Elgin, for appellant.
    John H. Maville, State’s Attorney, of Belvidere, for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The defendant, Anthony Del Genio, was jointly indicted with Sandra L. Blassick and Hollis Pruitt for the offenses of kidnapping, aggravated kidnapping, and armed robbery. Upon the morning of the first day of trial prior to the jury being sworn, the defendant Sandra Blassick plead guilty to the charge of kidnapping. The defendant, Hollis Pruitt, collapsed shortly afterwards and was taken to the hospital. He was granted a severance and the defendant Del Genio was tried by a jmy and found guilty of kidnapping, aggravated kidnapping, and armed robbery, and was sentenced to the Illinois State Penitentiary for a term of 10-20 years. Subsequent to the trial and prior to sentence the defendant moved for a psychiatric examination which was granted and the diagnosis of the psychiatrist was merely that he was an anti-social personality.

On this appeal Del Genio has raised the following issues: whether or not he was proven guilty beyond a reasonable doubt; whether the trial court abused its discretion in overruling his motion for a mistrial based upon alleged prejudicial newspaper publicity during the trial and without polling the jury as to the prejudicial publicity; and lastly, that the prosecutor made prejudicial statements relative to the theory of the defense, and further, that the prosecutor erred in commenting on the term “reasonable doubt.”

On January 10, 1970, Illinois State troopers Jack L. Johnson and James Fowler were on- routine patrol on the northwest tollway. A white Cadillac occupied by two men and a woman made a U turn over the median strip. Johnson overtook the defendant with his squad car and pulled the car over. The two troopers got out of the car and met the driver of the Cadillac between the cars. The driver, subsequently identified by the troopers as Del Genio, pulled an automatic pistol out of his left hand pocket and disarmed both troopers. The second man got out of the car with a .45 caliber automatic. The woman in the car, Sandra Blassick, was holding two guns, a chrome revolver and a Luger automatic. Del Genio ordered trooper Johnson into the Cadillac and told him to drive it. Del Genio then took over the squad car and drove it. After they had gone about a mile, Del Genio pulled the squad car over, parked it on the side of the road, and got into the Cadillac. At this point trooper Johnson was sitting in the front seat of the Cadillac between Del Genio and Sandra Blassick. The other defendant, identified by the troopers as Hollis Pruitt, and trooper Fowler were sitting in the back seat. Eventually they left the toll road and ordered the troopers out of the car. It is to be noted that the two troopers were with the three persons for approximately thirty minutes and that it was daylight during the entire time. On January 31, 1970, Del Genio, Pruitt, and Blassick, were taken into custody in a farm house near Plainfield. Shortly thereafter apparently the three defendants were identified in a formal lineup by troopers Johnson and Fowler.

The first contention of defendant, Del Genio, is that the State failed to prove him guilty beyond a reasonable doubt because of alleged discrepancies and inconsistencies in the testimony of the two officers. Iii support of this contention the defendant has cited People v. Reed (1968), 103 Ill.App.2d 342, 243 N.E.2d 628. In Reed there was but one witness, the victim. It was night time and the incident involved took but a few seconds. The court determined that while the testimony of one witness was sufficient where it was vague and uncertain, the case should be reversed. That is not the situation in the instant case where the two state troopers were with the defendant for a period of thirty minutes in broad daylight.

In People v. Kincy (1966), 72 Ill.App.2d 419, 219 N.E.2d 662, also cited by defendant, the victim was only able to identify the robber because of a jacket which was not introduced into evidence. The court in considering the uncontradicted alibi of the defendant, the failure of the State to produce a witness who followed the perpetrator of the crime for fifteen blocks, and the failure to produce any witness who had seen the face of the defendant, reversed the conviction. That is not at all comparable to the instant case.

In People v. Holiday (1970), 47 Ill.2d 300, 265 N.E.2d 634, likewise cited by the defendant, the identification was from a single photograph. The court reversed and remanded for a hearing on the admissibility of identification testimony. This was a gang type killing which occurred at 2:00 o’clock in the morning. This too, is an entirely different factual situation from the instant case.

Attention is directed to People v. Del Genio, this volume, and the authorities cited therein, where the same issue was raised, with particular reference to People v. Strother (1972), 53 Ill.2d 95, 100, 290 N.E.2d 201; and People v. Charleston (1969), 115 Ill.App.2d 190, 253 N.E.2d 91, 94. In the instant case we have two state troopers who positively identified the defendant. It is the peculiar province of the trier of facts, in this case the jury, to determine the credibility of the witnesses. In the instant case there were no opposing witnesses and there was no conflict by the testimony of any witnesses for the defendant; the only contention of the defendant being the inconsistencies of the two witnesses in their testimony, which in this court’s opinion are minor. For example, there was a conflict of testimony whether Del Genio wore glasses. One trooper testified that he weighed between 175-190 pounds. The other trooper testified that he weighed 240-250 pounds. The basic premise of defendant’s contention is that the state troopers being especially trained should have given a better description of Del Genio prior to his apprehension. No useful purpose would be served in describing the other alleged inconsistencies. There is no question in this court’s mind but that the two state troopers, who as defendant states were especially trained, would have no difficulty in identifying a defendant at a later date with whom they were in close contact in broad daylight for a period of half an hour.

Defendant next alleges that the jury may have been influenced by newspaper publicity during the course of the trial. The newspaper articles have been included in the transcript and we find nothing in those accounts that would come within the purview of the cases cited by defendant pertaining to the adverse effect of news media and a jury. The defendant has correctly stated that whether a mistrial shall be declared because the jurors have read an article concerning the trial rests in the sound discretion of the trial court. In People v. Malmenato (1958), 14 Ill.2d 52, 150 N.E.2d 806, the defendant was convicted of attempted burglary. During the course of the trial an article appeared in the Waukegan News Sun which concluded “Malmenato reportedly has a record of 43 arrests and no convictions.” After the publication of the article the defense counsel made an oral motion for a mistrial. The court then interrogated the jurors and found one of them had read the article. He admonished the juror that nothing he read was evidence. The juror then replied “It did not have much effect on me” and the court refused to grant a mistrial. The Supreme Court went on to say that such a motion was addressed to the sound discretion of the trial court.

The articles in question appear to be two, one of which carried a headline “Sandra Blassick pleads guilty on kidnapping charge” and the other “Troopers identify Del Genio as their abductor” which article had pictures of Blassick and the defendant. The fallacy of defendant’s argument is that the identification of Del Genio by the troopers was made in trial before the jury, together with considerable testimony as to there being another man and woman involved in the crime. The fact that one defendant had plead guilty in itself is not such a type of publicity as would warrant a new trial on the basis of a prejudicial effect thereby.

The last contention of the defendant is that the prosecutor allegedly called the attention of the jury to the fact that the defendant did not testify. The remarks of the prosecutor now complained of by the defendant were:

“* * * What is the defense, what is the testimony of the defendant. Well, I don’t know. I’m not sure what it is. It seems to me to be possibly a number of theories, but they all pretty much boil down to let us try somebody else besides the defendant, I guess.”

No objection was made at the trial or was this issue raised in the post trial motion. The courts of Illinois have repeatedly said that in the absence of plain error, the reviewing court will not consider grounds for reversal not raised in any fashion in the trial court. Particularly is this so in a case where the evidence is overwhelming as we feel it is in the instant case. Likewise, the defendant objects to the prosecutors discussion of “reasonable doubt.” This too, was not objected to in tire trial nor in the post trial motion and therefore will not be considered by this court. Judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.

SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE GUILD

delivered the supplemental opinion of the court:

Since the filing of the opinion herein the defendant has filed a petition for rehearing. He contends in this petition that his sentence for aggravated kidnapping and armed robbery should be reduced to 4-12 years under the provisions of the new Unified Code of Corrections, Ill. Rev. Stat, 1972 Supp. ch. 38, sec. 1001 — 1—1 et seq. He is incorrect. Both aggravated kidnapping and armed robbery are Class 1 felonies. Ill. Rev. Stat, 1972 Supp., ch. 38, sec. 1005 — 8—1(c)(2) provides that the minimum sentence for a Class 1 felony shall be four years. The Legislature did not provide that the minimum term be one-third of the maximum term. Petition for rehearing denied.

Sentences affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony G. Del Genio, Defendant-Appellant.
    (No. 71-354;
    Second District
    February 15, 1973.

      Rehearing denied April 10, 1973.

      Ralph Reubner, of Defender Project, of Elgin, for appellant.

      PhiHp G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The defendant, Anthony G. Del Genio, was indicted for armed robbery in which approximately $14,000 was taken on the evening of July 30, 1969. Defendant was found guilty in a jury trial and sentenced to 6-18 years in the penitentiary.

On appeal, defendant contends that the in-court identification of defendant was based upon a suggestive pretrial identification; that he was not proven guHty beyond a reasonable doubt, and that the prosecutor’s closing argument contained prejudicial remarks constituting reversible error.

On the evening of July 30, 1961, two men went into the Pacemaker store in Rockford, IUinois. One was disguised in a red wig and wax mask. The other was not disguised. The disguised robber carried a brief case and went to the office where the manager opened the safe containing $13,000-$14,000 and the robber filled his brief case with the money. Six months after the robbery, Detective Francis of the Rockford pohce transported eyewitnesses, the cashier, Paula Dal Pra Corcoran, the store manager, Jerome Sulfivan, and Shirley Scott, an employee of the store, to the Boone County jaü at Belvidere to view two men believed to be the robbers of the Pacemaker store. When they arrived at Belvidere the Sheriff of Boone County asked tibe defendant to come out for a telephone call in the company of other prisoners. One Hollis Pruitt came out of the jail cell first and when he realized it was a surprise showup he shouted a warning back into the cell area to defendant, whereupon defendant refused to appear. Defendant never did appear and Detective Francis then showed the witnesses three photographs he had obtained from the Boone County sheriff. One photograph was of tire first prisoner Pruitt, another was of the defendant, and a third picture was of a pohce lineup of four or five individuals, including the defendant. The witnesses Corcoran and Scott selected the defendant’s picture as the undisguised robber. Store manager Sullivan was unable to identify defendant; he merely stated the picture looked more like the robber than anyone he had ever seen before.

On February 24, 1970, two weeks after the unsuccessful showup, the three eyewitnesses separately identified the defendant in a formal lineup in the Winnebago County jail. Two other witnesses, who did not have direct contact with the defendant, were unable to identify him.

Prior to trial two separate hearings were had on defendant’s motion to suppress identification of the defendant. On January 6, 1971, the Public Defender conducted an extensive hearing on this motion. A motion for the substitution of private counsel for defendant was allowed and on February 17, 1971, before another Judge, once again an extensive hearing was had to suppress identification of the defendant. In both instances, the motions to suppress were denied.

At the trial, witnesses Corcoran, Scott and Sullivan, made an ixi-court formal identification of defendant. The cashier, Corcoran, definitely identified the defendant, testifying she had a face to face and side view of him under the store’s fluorescent lights at a distance of a few feet for about a half a minute. She described his clothing, that he had a mustache, insisted he was not wearing glasses, and that she made a special effort to observe his features and clothing. Witness Shirley Scott testified she observed the undisguised defendant face to face at a distance of- two and one-half to three feet for a matter of seconds. She recalled that when showed a photograph of defendant and others that she identified him. She described his physical appearance and the fact he did not wear glasses or have a mustache. The manager, Sullivan, testified he observed defendant from a distance of 6-10 feet. While he could not identify defendant prior to the lineup, he positively identified him in the lineup.

Detective Francis testified that it appeared between the time of trial and the showup at Belvidere, that the defendant had lost approximately sixty pounds. Two witnesses, who had not had a good view of defendant, indicated to the police artist who made a “composite” drawing of the robbers, that defendant and the other robber were wearing eyeglasses, and the official police description of the robber did include eyeglasses and a mustache.

The defendant asserts the trial court was in error when it denied his motions to suppress the identification testimony against him. Defendant contends the in-court identifications were based entirely upon a pretrial lineup procedure which was the fruit of a highly suggestive and tainted identification confrontation and photographic exhibition held six months after the armed robbery. He further contends the in-court identification did not have its origin independent and uninfluenced by the tainted pretrial lineup and photographic confrontations held prior to the in-court identification of himself. He claims, therefore, the in-court identification violates his right to due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. In support of his contention he has cited Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967.

In further support of his contention he has cited People v. Lee (1970), 44 Ill.2d 161, 169, 254 N.E.2d 469, 473, which states in approval of Stovall v. Denno:

“The test is whether the identification procedures were ‘unnecessarily’ suggestive and the methods used must be examined in light of the circumstances in each case.”

With this, we agree. (See also, People v. Tuttle (1972), 3 Ill.App.3d 326, 278 N.E.2d 458.) In Lee the court found that the testimony of one witness in question was conflicting and inconclusive and the in-court identification by the other witness was “weak at best”. That is not the factual situation in the case before us.

Defendant has further cited People v. Fox (1971), 48 Ill.2d 239, 246, 269 N.E.2d 720, 725, in which the court stated:

“In our case the record indicates that the three witnesses had adequate opportunity to observe the defendant during the course of the argument on the evening of January 1, 1968.”

The court then went on to hold that the pretrial confrontation was not necessarily suggestive. We find that to be the situation in the instant case.

In People v. Rodgers (1972), 53 Ill.2d 207, 290 N.E.2d 251, the Supreme Court held that identification of the accused two years after the crime did not deny due process where identification was based upon an origin independent of the photographic identification including an excellent opportunity to observe the defendant at the time of the crime.

Defendant also cites Simmons v. United States (1967), 390 U.S. 377, 383, 19 L.Ed.2d 1247, 1252-53. In Simmons the court held that each case must be considered on its own facts, and that a conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. With this, we agree.

In this case the pretrial identification was preceded by a situation in which the cashier Corcoran was able to describe defendant to the police immediately after the robbery and was able to pick out his picture as the one that looked like the man and to use as an example another picture to illustrate his physical stature. The witnesses herein had ample opportunity to observe the defendant. In People v. Brown (1972), 52 Ill.2d 94, 99, 100, 285 N.E.2d 1, 5, 6, the court held:

“* * # The practice of showing photographs of suspects to witnesses is essential to effective law enforcement. The dangers inherent in the practice have been recognized by the United States Supreme Court, but nevertheless, initial identification by photograph has its approval. The Court has held that each case must be considered on its own facts, and that convictions based on in-court identifications following a pretrial identification by photograph, will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. [Citation.]
* # #
* * * Circumstances may necessitate such procedure and to prohibit it may very well hamper effective law enforcement,
# # #
The prosecutrix had a good opportunity to observe the defendant. She gave a description of him and the clothing he wore which was sufficiently detailed to enable the police to locate and arrest him within 24 hours. She made an identification from a photograph, identified him in a lineup, and later at the trial * * * We cannot say that the identification of the defendant was so doubtful, vague or uncertain that it produced a conviction which must be reversed. [Citation.]”

Photographs were used as a means of identification by two of the three witnesses after defendant refused to appear at the Boone County showup, and was identified by all three eyewitnesses at a formal lineup at a later date. We do not find that under these circumstances any of the defendant’s constitutional rights were violated in this respect.

Defendant also complains that the fact that the Rockford detective took the three eyewitnesses to Belvidere to view a suspect was highly suggestive. This situation must necessarily arise when a victim is called to the station house to identify a suspect or when he is taken to the jail to identify a suspect. The courts of Illinois have held that this merely goes to the weight of the testimony of the witness and does not so taint the in-court identification so as to make it inadmissible. See People v. Oliver (1972), 5 Ill.App.3d 860, 284 N.E.2d 369; People v. Mc Intosh (1967), 82 Ill.App.2d 90, 227 N.E.2d 76; and People v. Wooley (1970), 127 Ill.App.2d 249, 262 N.E.2d 237.

We find that the State did establish by clear and convincing evidence the in-court identification had origins independent of the procedure alleged by defendant to have been highly suggestive. The three eyewitnesses were present at the time of the crime and were able to positively identify defendant, and when the circumstances in this case are compared with the cases cited by defendant, it is clear an independent basis for identification of the defendant was established by clear and convincing evidence.

The defendant claims the evidence presented at the trial was insufficient to prove defendant guilty beyond a reasonable doubt. The basis for this contention is the differences in the pre-apprehension description of the robber given by the three eyewitnesses herein and two other witnesses who were not called to testify as they were unable to identify Del Genio in the formal lineup. In support of the defendant’s contention that the testimony of the three eyewitnesses did not prove the defendant guilty beyond a reasonable doubt the defendant has cited People v. Jones (1972), 4 Ill.App.3d 888, 282 N.E.2d 273. In Jones, there was but one witness to an armed robbery of a store who could not remember whether the defendant did or did not have a mustache. She identified the defendant in a formal lineup. The court while reversing on other grounds, held that this was sufficient credible evidence upon which the jury could enter a verdict of guilty and stated in quoting People v. Charleston (1969), 115 Ill.App.2d 190, 197, 253 N.E. 91, 94:

“Precise accuracy in describing facial characteristics is unnecessary where, as here, an identification is positive. The testimony of one witness alone, if positive and the witness credible, is sufficient to convict even though his testimony is contradicted by the accused. [Citation.]”

In People v. Botulinski (1943), 383 Ill. 608, 50 N.E.2d 716, cited by defendant, there was a showup in which one party identified the accused as the robber. The court stated at page 719:

“* * * We have held that where one accused of a crime is brought alone before the witness for the purpose of identification, such identification is not entitled to the same weight and credibility as where tire witness picks out the accused from a number of persons brought before the witness. [Citations.]” 383 Ill. at 615.

Defendant has also cited People v. Marshall (1969), 74 Ill.App.2d 483, 221 N.E.2d 133, where the court reversed on the basis of one witness identification of the defendant as to whether he did or did not have a mustache, and primarily on the basis that the victim stated to the police that tire robber was 5' 6" in height when actually he was 5' 11". However, in People v. Calhoun (1971), 132 Ill.App.3d 665, 270 N.E.2d 450 at 452, it was held that a witness’ description of the defendant as being a Negro 5' 8" or 9" who weighed 170 to 180 pounds did not destroy the credibility of the identification where the defendant was actually 6' 2%" tall and weighed 200 pounds.

We do not believe that any of the cases cited by defendant are controlling.

It has been repeatedly stated in the Illinois courts that where the identification is not vague, doubtful or uncertain, that minor discrepancies and inconsistencies do not destroy the credibility of eyewitness identification, but only affects the weight to be given such testimony. The sufficiency of such identification is a matter for determination by the trier of fact. See People v. Hill (1972), 3 Ill.App.2d 694, 279 N.E.2d 497; People v. Cooper (1971), 133 Ill.App.2d 31, 270 N.E.2d 447, People v. Stringer (1970), 129 Ill.App.2d 251, 264 N.E.2d 31.

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

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

In the instant case any discrepancies were brought out to the jury by defense counsel both on cross-examination and in his closing argument.

In People v. Jordan (1967), 87 Ill.App.2d 338, 231 N.E.2d 630, there was but one witness to the robbery committed by two men. The victim was unable to identify one of the two men at a formal lineup, but did identify him in court. The court held that the fact he could not identify him in the lineup went only to the weight of his testimony.

Lastly, the defendant contends that the State’s Attorney’s closing argument contained prejudicial remarks that are plain and reversible error. It is to be expressly noted that no objection was made to the prosecutor’s argument at the time of trial. The defendant properly states that in a criminal case where the evidence is evenly balanced that the court will consider such errors. We do not find that this case is a close case and therefore we are not bound to consider the prosecutor’s statement as to whether or not it does constitute plain error. Nonetheless, we find that the prosecutor’s statement did not in fact constitute plain error. The main gist of defendant’s argument in that regard is the prosecutor’s reference to the two eyewitnesses, Chapman and Hoefer, who were not called by the State. The defendant contends that the prosecutor’s remarks were not invoked or provoked by the defense. Examination of the record discloses the following chronology. In his opening statement to the jury, defense counsel mentioned Sue Chapman and Dennis Hoefer who were State’s witnesses who would testify. The prosecutor in his closing argument commented on this by saying that these two witnesses did not identify or see the defendant. Defense counsel then in his closing argument to the jury discussed the non-appearance of Hoefer and Chapman and asked the prosecutor to explain why the State did not bring them in. The prosecutor replied to this query in his closing argument by stating that defense knew of them and that if the defense thought that these witnesses “could have helped him in any way he would have called them in here.” As the court stated in a similar situation in People v. McElroy (1964), 30 Ill.2d 286, 291-292, 196 N.E.2d 651, 654, where the defense counsel rhetorically inquired why an informer had not been called as a witness by the people:

“# * * We believe it quite obvious, however, that the arguments of defense counsel invited the retaliatory comments and explanations of the prosecutor now complained about, and that the latter were therefore within the bounds of proper argument. [Citations.] Furthermore, having failed to object to such argument in the trial court, * * * defendant is deemed to have waived any error which resulted. [Citation.]”

The general rule is that failure to produce evidence or witnesses, injected into a case by the defense counsel gives rise to the right of comment by the prosecution. People v. Durso (1968), 40 Ill.2d 242, 253, 239 N.E.2d 842 at 848.

Judgment of trial court affirmed.

Affirmed.

SEIDENFELD and ABEAHAMSON, JJ., concur.