author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. INDIANA HARBOR BELT RAILROAD COMPANY, Defendant-Appellant.—(BALTIMORE AND OHIO RAILROAD COMPANY et al., Amici Curiae.)

    First District (2nd Division)
    Nos. 80-2237, 80-2534 cons.
    Opinion filed December 1, 1981.

      Anna M. Kelly, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth S. Geis, and James Klein, Assistant State’s Attorneys, of counsel), for the People.

      Lewis, Overbeck & Furman, of Chicago (James R. Gannon, Douglas A. Lindsay, and Paul V. Esposito, of counsel), for amici curiae.

   JUSTICE PERLIN

delivered the opinion of the court:

This is a consolidated appeal of two cases involving a total of five instances in which the defendant, Indiana Harbor Belt Railroad Company (defendant), was charged with obstructing public travel at a railroad highway grade crossing for a period in excess of 10 minutes in violation of section 14 of “An Act in relation to fencing and operating railroads” (Ill. Rev. Stat. 1979, ch. 114, par. 70). A bench trial was held in each of the five cases. In each case the railroad was found guilty and a fine was assessed. The defendant appeals in each case from the judgment of the circuit court.

The following issues are presented for review: (1) whether by failing to file any post-trial motions, the defendant has waived all errors on appeal; (2) whether a moving train which obstructs public travel at a railroad highway grade crossing for a period in excess of ten minutes violates section 14; and (3) whether an interpretation of section 14 to include “moving trains” renders the statute unconstitutional as an unreasonable burden on interstate commerce.

For the reasons set forth herein, we affirm the decision of the circuit court in each of the cases involved in this consolidated appeal.

The facts pertinent to this appeal are undisputed. On each of five occasions a patrolman for the Village of Dolton, Illinois, observed a moving train owned by defendant obstructing traffic at a railroad highway grade crossing, located in Dolton, for a period in excess of 10 minutes. At the bench trial of each of the violations with which the defendant was charged, counsel for defendant argued that “a train moving through a grade crossing without stopping cannot be in violation of section 70 [section 14].”

The trial court, in finding defendant guilty, ruled that the statute in question must be construed to include moving trains which obstruct public travel for more than 10 minutes.

Defendant did not file any post-trial motions, but it appeals in each of the five cases from the judgment of the trial court.

I

The first issue presented for review is whether the railroad by failing to file any post-trial motions has waived all errors on appeal.

The underlying premise of the waiver rule is that the trial court be given an opportunity to correct any alleged errors. (People v. Lain (1980), 80 Ill. App. 3d 1136, 1137, 400 N.E.2d 1033.) It has been generally held, however, that in a bench trial a post-trial motion is not necessary to preserve for review claims of error if such errors were in some manner brought to the attention of the trial court. See People v. Eatherly (1979), 78 Ill. App. 3d 777, 780, 397 N.E.2d 533.

In the case at bar, defendant maintains that the only error was the interpretation of section 14 by the trial judge. The record indicates that in each of the five bench trials, defendant argued that the statute should be construed not to include “moving” trains. Thus, the trial court was made aware of defendant’s claim of error, and we shall consider the facts underlying defendant’s argument.

II

The second issue presented is whether a moving train which obstructs public travel at a railroad highway grade crossing for a period in excess of 10 minutes violates section 14 of “An Act in relation to fencing and operating railroads.” Section 14 provides in pertinent part:

“It is unlawful for a railroad corporation to permit any train, railroad car or engine to obstruct public travel at a railroad-highway grade crossing for a period in excess of 10 minutes, except where such train, railroad car or engine cannot be moved by reason or circumstances over which the railroad corporation has no control.” Ill. Rev. Stat. 1979, ch. 114, par. 70.

To determine whether a “moving” train can “obstruct public travel,” we must consider the meaning of the word “obstruct.” Defendant contends that in using the word “obstruct,” the legislature contemplated a stationary object only. Defendant based its contention, in part, on the fact that the legislature also employed the phrase “except where such train • 0 * cannot be moved” (emphasis added), which defendant believes indicates that only nonmoving trains fell within the scope of the statute. We disagree.

Statutory language must be given its plain and ordinary meaning, “ ‘ ° * ° and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports.” ’ ” People v. Moore (1978), 69 Ill. 2d 520, 523, 372 N.E.2d 666.

Webster’s Third New International Dictionary (1976), defines the word “obstruct” as follows:

“1. to block up: stop or close up; * * *
2. to be or come in the way of: hinder from passing, action or operation; 060
3: cut off from sight: shut out * *

Applying this definition, and noting that the language of the statute contains no other terms that would limit the prohibited conduct to standing trains, we think it clear that a moving train could “block up” a railroad highway grade crossing, and “hinder” public travel across the intersection.

This conclusion would appear to be dispositive of this issue. However, since the construction of section 14 is a matter of first impression in Illinois, we shall address the several arguments offered by defendant.

Defendant argues that since violation of section 14 may result in the imposition of a fine, the statute is penal in nature and should therefore be strictly construed. (See Cedar Park Cemetery Association, Inc. v. Cooper (1951), 408 Ill. 79, 96 N.E.2d 482.) Defendant maintains that the trial court improperly extended the scope of section 14 to include moving trains. We find no merit in such argument, as we have already determined that given its plain and ordinary meaning, section 14 includes moving as well as standing trains.

Defendant further argues that from 1874 until 1973 the statute applied only to standing trains, and therefore, the legislature, in its 1973 amendment, could not have intended to change its long-established policy. The statute in force prior to the 1973 amendment provided:

“No railroad corporation shall obstruct any public highway by stopping any train upon, or by leaving any car or locomotive engine standing on its track where the same intersects or crosses such public highways, except for the purpose of receiving or discharging passengers or freight 0 0 0 and in no case to exceed 10 minutes for each train, car or locomotive engine.” (Emphasis added.) Ill. Rev. Stat. 1971, ch. 114, par. 70.

Defendant invites this court to speculate that since the prior version of the statute applied only to “standing” trains, and the current version of the statute contains no specific reference to “moving” trains, the legislature intended to exclude moving trains from the scope of statutorily proscribed conduct. Under defendant’s theory, the statute presently in effect would be limited to standing trains, and would merely echo, albeit in other words, the proscriptions of the 1971 version.

The normal presumption is that an amendment to a statute is intended to change the law as it formerly existed, rather than to reaffirm it. (Saltiel v. Olsen (1979), 77 Ill. 2d 23, 394 N.E.2d 1197; McLaughlin v. People (1949), 403 Ill. 493, 501, 87 N.E.2d 637; 1A Sutherland, Statutes and Statutory Construction §22.20 (4th ed. 1972).) An amendment of an unambiguous statute indicates a purpose to change the law, and the Illinois Supreme Court has held that a statutory amendment is an appropriate source of discerning legislative intent. O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204.

Although the statute could have been more clearly drawn, we believe its intent and operation are discernible. It seems apparent that when the legislature amended section 14 to exclude specific references to “standing” trains, it intended the statute to include all trains, whether standing or moving, that may block public travel across a railroad highway grade crossing. We conclude that the trial court did not err in ruling that defendant’s moving train violated section 14.

Ill

The final issue presented is whether an interpretation of section 14 to include moving trains renders the statute unconstitutional as an unreasonable burden on interstate commerce.

Article 1, section 8 of the United States Constitution (the commerce clause) empowers Congress to regulate interstate commerce. It has long been recognized, however, that in the absence of conflicting legislation by Congress, there is a residuum of power in the States to enact laws governing matters of local concern which in some measure affect, and even to some extent regulate, interstate commerce. Southern Pacific Co. v. Arizona (1945), 325 U.S. 761, 767, 89 L. Ed. 1915, 1923, 65 S. Ct. 1515.

It is generally held that it is within a State’s authority to regulate matters of local concern where the incentive to deal with these matters nationally is slight and where the State’s regulation on such matters does not seriously interfere with the operation of interstate commerce. (Southern Pacific Co. v. Arizona (1945), 325 U.S. 761, 767, 89 L. Ed. 1915, 1923, 65 S. Ct. 1515.) Regulations which are designed by a State to further local health and safety, for example, are most likely to withstand constitutional attack. See Raymond Motor Transportation, Inc. v. Rice (1978), 434 U.S. 429, 54 L. Ed. 2d 664, 98 S. Ct. 787; Railway Express Agency, Inc. v. New York (1949), 336 U.S. 106, 93 L. Ed. 533, 69 S. Ct. 463.

Those who would challenge a State’s bona fide safety regulations must overcome a “strong presumption of validity.” (Bibb v. Navajo Freight Lines, Inc. (1959), 359 U.S. 520, 524, 3 L. Ed. 2d 1003, 1007, 79 S. Ct. 962, 965.) However, regulations designed by a State to promote the public health or safety which further such purpose only marginally, and interfere with commerce substantially, will be held invalid under the commerce clause. (See Kassel v. Consolidated Freightways Corp. (1981), 450 U.S. 662, 67 L. Ed. 2d 580, 101 S. Ct. 1309.) Thus, in determining the validity of a State regulation under the commerce clause, a court must engage in a “sensitive consideration of the weight and nature of the state regulatory concern in light of the extent of the burden imposed on the course of interstate commerce.” Raymond Motor Transportation, Inc. v. Rice (1978), 434 U.S. 429, 441, 54 L. Ed. 2d 664, 675, 98 S. Ct. 787, 794; accord, Pike v. Bruce Church, Inc. (1970), 397 U.S. 137, 142, 25 L. Ed. 2d 174, 178, 90 S. Ct. 844, 847.

In the instant case, we must balance what appears to be the purpose of section 14, i.e., to safeguard the health and welfare of the people of Illinois, against any burden that the statute may impose on the free flow of interstate commerce.

Defendant argues essentially that the effect of section 14 is to unreasonably restrict the flow of interstate commerce. Defendant alleges that if section 14 is construed to include moving trains, the carrier will be forced to limit the length of its trains in order to traverse a railroad crossing within a 10-minute period. Defendant further contends that if it must shorten the length of its trains, it must increase the number of trains running, which in turn would allegedly result in schedule delays, increased costs, and increased exposure to accidents. This argument appears to be based on the United States Supreme Court’s decision in Southern Pacific Co. v. Arizona (1978), 325 U.S. 761, 89 L. Ed. 2d 1915, 65 S. Ct. 1515.

In Southern Pacific Co., the State of Arizona had enacted a statute making it unlawful to operate within that State a train made up of more than 14 passenger or 70 freight cars. The Arizona Supreme Court sustained the act as a safety measure (within the State’s exercise of police power) designed to reduce the number of accidents attributed to trains in excess of the prescribed lengths. The United States Supreme Court in nullifying the statute found that since it was general practice throughout the United States to run trains in excess of the 14- and 70- car limit, the Arizona statute thus necessitated the breakup of reasonably longer trains before entering and after leaving Arizona. Further, the reduction in train lengths resulted in the operation of a greater number of trains which, in turn, burdened the railroads with increased costs. Moreover, the court found as a matter of fact that the operation of a greater number of trains increased the number of accidents within the State; thus, the very purpose for which the statute was enacted, i.e., safety, was not achieved. The court ruled that the statute was an unreasonable burden on interstate commerce in that the State’s interest was outweighed by the interest of the nation in an economical and efficient railway transportation service.

The Southern Pacific Co. case is clearly distinguishable from the facts presented herein. We are not dealing with a train-length limitation statute, although the defendant argues that in application, section 14 in fact operates as an indirect limit on train length.

Defendant asserts that Federal legislation limits freight train speeds on Class I track to 10 miles per hour, and therefore, in order to traverse a railroad crossing within the 10-minute period, a train’s length necessarily will have to be limited. By way of example, defendant notes that at a speed of 10 miles per hour, a train longer that 133 66-foot cars could not cross a railroad highway intersection in 10 minutes. Defendant maintains that slower speeds will be dictated by circumstances including switching, weather condition and necessary maintenance.

In further support of its contention that section 14 invalidly serves as an indirect limitation on train length, defendant cites Kahn v. Southern Ry. Co. (4th Cir. 1953), 202 F.2d 875. In Kahn, the court construed, as applying only to standing trains, an ordinance which prohibited the obstruction of a railroad highway intersection for more than three minutes. The court opined that if the ordinance was construed to include moving trains and was taken in conjunction with another ordinance which limited train speeds within city limits to four miles per hour, the two ordinances together would operate to limit unreasonably the length of interstate trains traveling through the city, and would therefore be unconstitutional under the Southern Pacific Co. decision.

Unlike Kahn, the statute in the instant case imposes no speed restriction, and provides the train with a 10-minute period in which to traverse a railroad highway grade crossing. Moreover, an exception is made for circumstances beyond the control of the railroad corporation which impede a train from crossing within the prescribed time limits. This regulation does not appear to be the type of State interference with interstate commerce envisioned by the courts in Southern Pacific Co. and Kahn.

We note a further distinction between the statute invalidated in Southern Pacific and the statute involved in the case at bar: here this is a reasonable basis for the enactment of section 14, i.e., to protect the health, safety and welfare of the citizens of this State from the danger of being essentially “cut off” from emergency police, fire and ambulance services. (Compare Commonwealth v. New York Central R.R. Co. (1966), 350 Mass. 724, 216 N.E.2d 870; City of Lake Charles v. Southern Pacific Transportation Co. (La. App. 1975), 310 S. 2d 116.) Trains blocking main thoroughfares for extended periods of time may create very serious safety problems, as well as obstruct the flow of interstate highway traffic.

In Commonwealth v. New York Central R.R. Co., a statute similar to that sub judice was upheld and construed to prohibit moving as well as stationary trains from obstructing railroad crossings for more than five minutes. The court held that “there is presented a local problem without effect on national or interstate uniformity and in a field where uniformity is not necessary or desirable. * * * This is a critical moment in the State’s right of control over highways at railroad crossings. Rights surrendered now will not be reacquired. ° e ” Should this statute be struck down, trains might occupy crossings indefinitely, leaving the highways in a continuing state of chaos.” 350 Mass. 724, 729-30, 216 N.E.2d 870, 873.

Such rationale applies also to the statute in question herein. Although section 14 may impose some burdens on the railroad corporations, these burdens must be weighed against a significant countervailing safety interest. We opine that the impact of section 14 on interstate commerce has not been shown by defendant to be such that would materially restrict the free flow of commerce across state lines. Thus, in the balance, the scales lean heavily on the side of the State’s right to promote the health and safety of its citizens.

Accordingly, we conclude that section 14 construed to prohibit moving as well as standing trains from obstructing a railroad highway grade crossing for a period in excess of 10 minutes, does not constitute an unconstitutional and unreasonable interference with interstate commerce. The orders of the trial court are affirmed.

Affirmed.

HARTMAN, P. J., and STAMOS, J., concur.

       The circumstances surrounding the enactment of an amendment should be considered. In the instant case, however, there is a dearth of comment concerning the contested provision. There is no record of any comment in the Illinois House of Representatives, and the following comment by Senator Walker is the only one of record to be made on the floor of the Senate:
      “HR 486 [enacted as Section 14] is a recommendation of the joint House Study Commission of the 76th General Assembly. The bill is supported by the Illinois Rail-Road Association, the United Transportation Union, and the Brotherhood of Locomotive Engineers. It is the result of five years of effort.
      It provides that no railroad shall block a railroad highway grade crossing except where the train cannot be moved by circumstances over which it has no control.”
      The bill was passed on June 11,1973, by a vote of 30 to 4. Transcript of Senate meeting of June 11, 1973, page 49, line 25.

       In the brief submitted by amicus curiae, there is reprinted the 1978 statement of James E. Martin, vice president of operations and maintenance, Association of American Railroads, before the Congressional Subcommittee on Transportation and Commerce of the Committee on Interstate and Foreign Commerce. This statement was offered in opposition to a legislative proposal to limit train lengths to 4,300 feet, exclusive of the caboose. We note that Mr. Martin stated that the proposed legislation would limit trains to approximately 75 cars. If, as defendant claims, in a 10-minute period, at a speed of 10 miles per hour, a train of 133 66-foot cars can traverse a railroad crossing, section 14 would permit almost an 80-percent increase in train length over the proposed Federal limitation.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND REYES et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 78-1838, 79-236 cons.
    Opinion filed December 9, 1981.

      Marc M. Barnett, Marvin J. Glass, Dennis A. Berkson, and Charles K. Piet, all of Barnett, Ettinger, Glass, Berkson and Braverman, Ltd., of Chicago (Caroline Jaffe, of counsel), for appellant Raul Gonzalez.
    James J. Doherty, Public Defender, of Chicago (Michael Mclnerney, Assistant Public Defender, of counsel), for appellant Raymond Reyes.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Michael K. Demetrio, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

Defendants Raul Gonzalez, Raymond Reyes and Jose Murrillo were charged in a joint indictment with murder and attempt armed robbery. Gonzalez and Reyes were tried by a jury and Murrillo was tried by the court. The jury found Gonzalez guilty of murder and attempt armed robbery. It found Reyes guilty of attempt armed robbery, but not guilty of murder. Murrillo was also found guilty of attempt armed robbery. Gonzalez was sentenced to a term of 25 to 50 years imprisonment for murder and two to six years imprisonment for attempt armed robbery. Reyes was sentenced to two to six years imprisonment. Gonzalez and Reyes now appeal.

The facts established at trial follow. At the intersection of Fullerton and Ridgeway streets in Chicago on February 23, 1976, Timothy Glover was shot. When police officer Joseph Vegas arrived at the scene at approximately 6:30 p.m., Glover was lying on the sidewalk in front of Hendricksen’s drugstore which is located on the northeast corner of that intersection. Glover was transported to a hospital, where he died.

Several young men were in the vicinity of the drugstore at the time of the shooting, including the victim and State’s witnesses Thomas Stump, Robert Shaw, Jay Dwyer, and John Mikucki.

Thomas Stump testified that shortly before 6:30 p.m., he left the drugstore and went to a basketball court located three doors east of the drugstore. He was playing basketball when he heard a shot. Then he ran into the alley behind the basketball court and looked west. He observed two men standing in the alley near Ridgeway. Defendant Reyes was one of these men. The man with Reyes, whom Stump was unable to identify, had a rifle and wore a long green coat. The two men then moved forward in the direction of the drugstore so that they were out of his eyesight. Then he heard five shots fired, and after that, he saw Reyes and the other man running north on Ridgeway. The other man had the rifle. Subsequently, Stump went to the scene in front of the drugstore. A short time later, he found five empty shell casings near where the alley intersected Ridgeway. He gave them to a police officer.

Robert Shaw testified that at approximately 6:30 p.m., he was standing outside the drugstore. Glover was inside. While standing there he saw two male Puerto Ricans approach from the south and walk by the drugstore. One was wearing a long, green trench coat and the other a dark jacket. Shaw entered the drugstore and informed individuals therein that two Puerto Ricans were walking north on Ridgeway. Then he exited the drugstore with John Mikucki. Mikucki walked north on Ridgeway in the middle of the street, and Shaw walked in that direction on the sidewalk near a building and then walked out toward the street. Shaw then saw the two Puerto Ricans step from behind a building into the middle of an alley adjacent to the building. The one in the trench coat raised his right hand, and Shaw heard a shot. Shaw then ran southwest. As he was running, he heard four or five other shots. Shaw identified Raul Gonzalez as one of the two individuals who approached the drugstore.

Jay Dwyer testified that at 6:30 p.m., he was inside the drugstore. He heard a shot. At that time, Mikucki, Shaw and Glover were outside the drugstore. Then Dwyer ran outside and around the corner so that he was facing north on Ridgeway. He saw two males near the alley which intersects that street. One had an afro and the other a long green army coat. At this time, Timothy Glover was immediately in front of Dwyer, on Ridgeway facing north. Dwyer heard approximately five shots, and he ran back around the corner. He saw Glover also coming around the corner. Glover was stumbling, and he fell to the ground.

John Mikucki testified that at 6:30 p.m. he was inside the drugstore. He observed two Puerto Rican males walk past the drugstore and proceed north on Ridgeway. One was wearing a long army training coat and the other a dark jacket. He told others inside the drugstore that there were two male Puerto Ricans walking down Ridgeway. Mikucki went outside, and Robert Shaw went with him. Mikucki walked into the middle of Ridgeway and proceeded north. He did not see the two Puerto Rican males. When he was approximately 20 feet from the alley, the two individuals he had seen stepped out from the alley and the corner of a building. They said, “I. G. Love,” but Mikucki did not say anything. Then Mikucki heard a shot fired in his direction, but he did not know who fired it. He turned and ran behind a parked car on the west side of Ridgeway. He observed the two individuals walk a few feet south. Then he saw a long black object underneath the coat, apparently a reference to the long army training coat. He heard five more shots and started running south on Ridgeway toward Fullerton. Mikucki identified defendants Reyes and Gonzalez as the two individuals he had observed, but he could not identify which one fired the weapon.

Michael Wilson testified that he lived near the drugstore in February 1976. At 6:30 p.m. on February 23, 1976, he was walking south down the alley between Ridgeway and Hamlin streets with his dog. He observed a car in the “T” intersection of that alley and an east-west alley that runs parallel to Fullerton and is located immediately north of that street. As he passed the car and turned west into the east-west alley, he heard a shot. He turned so that he was facing east, and he observed a man wearing a long green coat firing a rifle. As Wilson continued down the alley, he heard more shots fired.

Police officer James Adams testified that on February 23, 1976, he arrived at the crime scene in response to a radio call of “shots fired.” While there, a youth approached him and handed him five empty Imperial .3240 caliber rifle cartridge casings. Adams also observed one Officer Noonan recover another spent Imperial .3240 cartridge casing.

Police officer Richard Fritz testified that he and his partner, Leonard Wojewocki arrested the defendants on February 23, 1976. He testified that a citizen told him and his partner that he had seen two males run into a nearby school yard and that one was carrying a rifle. Otherwise, his testimony regarding the circumstances of the arrests is substantially similar to that given by Wojewocki at the hearing on defendant’s motion to quash arrest described later in this opinion.

Testimony by Kelly Glover, the victim’s brother, revealed that Timothy Glover that evening was wearing a Calhoun Park High School sweater. Donald Smith of the Chicago police department, an expert in the field of firearms identification, testified that he examined the rifle recovered from defendants Gonzalez and Reyes and the six shell casings recovered at the scene of the slaying. It was his opinion that these shell casings could only have been fired from that rifle. Smith also testified that the rifle was designed in such a way that it must be cocked by its user each time it is fired.

Assistant State’s Attorney Michael Robbins testified that on February 23,1976, both Gonzalez and Reyes made written statements to him. In the course of his testimony, Robbins read these statements to the jury.

Gonzalez in his statement stated that on the evening of February 23, 1976, he was in the area of Fullerton and Ridgeway streets. At that time, he was wearing a long green coat and he had a rifle with him. His purpose for going to that location with the rifle was to get his sweater, which had been taken from him in the summer of 1975. Raymond Reyes, a friend, went with him. They went to the corner where the drugstore was located because Gonzalez had seen the sweater there at approximately 4 p.m. on the same day. When they arrived, Gonzalez looked in the drugstore and saw approximately seven young men. Gonzalez and his friend started to run. At that time, the rifle hit a wall and fired. Gonzalez started to run again, and then he fired three or four times while trying to run. After each shot, he cocked the rifle again. He ran across the street to what he believed was a church and school. He had the rifle when he was arrested by the police.

Defendant Reyes, in his statement, said that he met Gonzalez at approximately 5:30 or 6 p.m. on February 23,1976. At that time, Gonzalez had a rifle with him, and Gonzalez was wearing a long green army coat. The rifle was under the coat. Their purpose for going to the intersection of Fullerton and Ridgeway streets was to get Gonzalez’ sweater. Their plan was to wait for the people to come out (apparently a reference to the drugstore) and then to hold them up with Gonzalez’ rifle. He and Gonzalez went to that intersection. They walked past some people there, and then these people began to chase them. These people had the sweater. At this time Gonzalez fired the rifle. Reyes heard four shots as he waited for Gonzalez in the alley. He ran with Gonzalez to a school yard and was arrested. Reyes also stated that Gonzalez explained the plan to him when they were walking to the intersection of Fullerton and Ridgeway streets.

After both defendants’ statements were read, the trial judge instructed the jury that each statement was to be considered only against the individual who made it and not against the other individual.

David Shields of the Chicago police department was the sole witness called by the defendant Gonzalez. He testified to alleged prior inconsistent statements made by State’s witnesses John Mikucki, Thomas Stump and Robert Shaw. Defendant Reyes chose not to present any evidence.

For the reasons set forth below, we affirm in part and reverse and remand in part. We first address the arguments raised by defendant Gonzalez.

I

Defendant Gonzalez first contends that the trial court erred in admitting his statement into evidence. He makes four arguments in support of this contention: that his statements were given subsequent to an unlawful arrest; that his written and oral statements were obtained by coercion; that the defendant had not been properly advised of his constitutional rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; and that the trial court erred in conducting separate hearings before different judges on his motion to suppress statements and his motion to quash his arrest.

First we consider the legality of defendant’s arrest. Gonzalez contends that his statement was inadmissible because it was the fruit of an unlawful arrest, that the police lacked probable cause for the warrantless arrest. At the hearing on Gonzalez’ motion to quash the arrest, the sole witness on the issue of probable cause was Chicago police officer Leonard Wojewocki, the partner of Officer Richard Fritz. Wojewocki testified that on February 23,1976, at approximately 6:15 p.m., he and his partner received a message over police radio that shots had been fired at Ridgeway and Fullerton streets. They were in a marked police car and approximately five blocks from that location. Responding to the call, they proceeded south on Ridgeway. Before reaching Fullerton, they were stopped by a citizen who was not known to the officers and whose identity was still not known at trial. This unidentified citizen told the officers that two youths, one wearing a long green jacket and carrying a rifle, had just run into the school yard. As they were talking with the citizen, the officers received a broadcast over the police radio that a boy had been shot. They proceeded into the school yard which was located two or three hundred feet from the intersection of Fullerton and Ridge-way, and ordered the men to come out of an alcove. Reyes came out, and when the order was repeated, Gonzalez came out. Wojewocki conducted a protective search, and he and his partner placed the subjects in custody. At the time of this arrest, Officer Fritz found a rifle leaning against a wall in the area that Gonzalez and Reyes exited. Wojewocki testified that there were no other people in the school yard, and that it was completely dark in the area where he and his partner found Gonzalez and Reyes.

Gonzalez points out that the identity of the citizen who gave the police the information leading to their arrest remains unknown. He contends that the trial court was required to determine whether the information coming from the informant was based upon his firsthand knowledge. This, he says, was not done in the motion to quash arrest hearing, and that on the basis of the scant evidence adduced at that hearing, it was not proper for the judge to find that there was probable cause to arrest the defendants.

A reviewing court, in passing upon a trial court’s ruling that probable cause existed to arrest a defendant, may consider testimony adduced at trial as well as at the pretrial hearing. (People v. Thompson (1981), 93 Ill. App. 3d 995, 1002, 418 N.E.2d 112.) Where evidence which establishes the legality of an arrest is received at trial prior to the introduction of the evidence which was the subject of the motion to suppress, the defendant cannot avail himself of any error made in this regard on the motion to suppress. (People v. Braden (1966), 34 Ill. 2d 516, 520, 216 N.E.2d 808.) In the trial below, Officer Fritz testified to the facts surrounding Gonzalez’ arrest before Gonzalez’ statement was admitted and read to the jury. Therefore, we have considered both the trial testimony of Officer Fritz and the pretrial testimony of Officer Wojewocki in evaluating defendant’s argument. Officer Fritz testified at trial that the citizen told them that he had seen two males run into a nearby school yard and that one of them was carrying a rifle and wearing a dark green coat, indicating that the information given to the policemen was from firsthand knowledge.

Gonzalez also contends that the arresting officers were not justified in relying upon information received from the unidentified citizen informer. However, the officers were not relying solely upon information from this citizen. In addition, the officers had received reports of a shooting over the police radio. Police officers generally may act upon such information. (People v. McElroy (1976), 44 Ill. App. 3d 1047, 1050, 358 N.E.2d 1180.) When the officers entered the school yard, they found Gonzalez and Reyes hiding in an alcove in an area that was completely dark. Gonzalez was wearing a dark green coat. There were no other people in the yard and the rifle was found nearby. Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a belief in a man of reasonable caution that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L. Ed. 2d 467, 101 S. Ct. 564.) We hold that there was ample evidence to establish probable cause.

Gonzalez also argues that his statements were not voluntarily given, noting that he had no prior experience with the law and he was only 17 years of age at the time of his arrest. In People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731, our supreme court stated:

“Whether a statement is voluntarily given depends upon the totality of the circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. [Citation.] In making its decision the trial court need not be convinced beyond a reasonable doubt, and the finding of the trial court that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence. [Citations.]” (53 Ill. 2d 62, 70.)

Gonzalez does not contend that he was physically abused, and there is no evidence in the record that his will was overcome at the time he confessed. (See People v. Prim (1972), 53 Ill. 2d 62, 70.) Testimony of witnesses who were present at Gonzalez’ oral and written statements indicated that he had not been threatened, coerced or struck and that promises had not been made to him. In denying Gonzalez’ motion to suppress statements, the trial court found that his statements were voluntary. This finding was not against the manifest weight of the evidence.

Next we consider Gonzalez’ assertion that he was not adequately informed of his rights under Miranda because he was never advised of his right to consult with counsel prior to the interrogation. The record of the hearing on the motion to suppress indicates that at the fifth area police headquarters during the evening of February 23,1976, Gonzalez received several advisements of his constitutional rights before making any statement, once from Investigator Schak of the Chicago police department and twice from Assistant State’s Attorney Michael Robbins. In each he was told of his rights under Miranda including his right to have a lawyer present, and he indicated that he understood.

Defendant states that under Miranda he had a constitutional right to have counsel present at the interrogation and the right to consult counsel prior to the interrogation. His position is that the admonitions of both Assistant State’s Attorney Robbins and Investigator Schak were defective in that neither advised defendant of his right to counsel prior to the questioning. Mr. Robbins testified that he advised Gonzalez that he had a right to have an attorney present with him and that if he could not afford an attorney, one would be provided for him free of cost. Investigator Schak testified that he advised Gonzalez of his right to counsel with these words: “You have the right to talk to a lawyer and have him present with you while you are being questioned * 0 °. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one.” In Miranda, the Supreme Court declared that “an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today.” 384 U.S. 436, 471, 16 L. Ed. 2d 694, 722, 86 S. Ct. 1602, 1626.

An examination of the several sets of warnings given to Gonzalez prior to his being questioned reveals that he was fully informed of his constitutional rights, including his right to consult with counsel prior to questioning. Miranda does not specify the precise language to be used in advising a person of his constitutional rights. Rather it requires an intelligent conveyance of the rights set forth therein, not a ritualistic recital of meaningless words. (People v. Prim (1972), 53 Ill. 2d 62, 67.) Under the circumstances of the instant case, the words used to advise Gonzalez of his constitutional rights were sufficiently clear to convey the warnings prescribed by Miranda. (See People v. Prim (1972), 53 Ill. 2d 62, 68.) Furthermore, arguments similar to the instant argument have been rejected in other Illinois cases, including People v. Sims (1978), 58 Ill. App. 3d 668, 374 N.E.2d 1050, and People v. Bunting (1974), 18 Ill. App. 3d 99, 309 N.E.2d 316. We therefore conclude that the trial court did not err in denying Gonzalez’ motion to suppress statements on the basis that he was not properly advised of his constitutional rights.

We now consider Gonzalez’ remaining argument with respect to the admission of his statements that the trial court erred in conducting separate hearings before different judges on his motion to suppress statements and on his motion to quash arrest. A hearing on Gonzalez’ motion to suppress statements was conducted before the Honorable Frank W. Barb aro on December 1, 1977. At this hearing the court considered the voluntariness of his statements and the adequacy of the Miranda warnings given to him. A hearing on Gonzalez’ motion to quash arrest was conducted before the Honorable Arthur Cieslik on December 5, 1977. At this hearing the court determined that there was probable cause to arrest.

At the December 1, 1977, hearing before Judge Barbaro, the following conversation was had in open court:

“THE COURT: So we get the record straight then, we are proceeding only on the voluntariness and the Miranda warnings at this juncture on the motion. Is that correct, gentlemen?
MR. ANDREWS [counsel for Reyes]: Yes, we have agreed.
MR. SUFFREDIN [counsel for Gonzales]: Yes.
MR. ANDREWS: We have agreed that we will handle the probable cause question on the pre-trial motions that follow today.” (Emphasis added.)

Gonzalez now contends that the separate hearings before different judges on the two motions was error because circumstances surrounding a person’s arrest must necessarily be considered by a trial court in determining the voluntariness of any statements given while in custody. We, however, do not address the merits of this argument because we conclude that it has been waived. Gonzalez not only did not object to this procedure in the court below, but he expressly informed the court that the procedure was agreeable to him. Failure to present proper and timely objection in the trial court generally constitutes a waiver of error. (People v. Adams (1968), 41 Ill. 2d 98, 101, 242 N.E.2d 167.) Furthermore, Gonzalez’ trial counsel did not raise this issue in the motion for new trial. The general rule is that “the failure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review.” People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

II

Gonzalez next contends that the trial court erred in denying his motion for severance. That motion asserted, inter alia, that his co-defendants, Reyes and Murrillo, had given statements implicating him. At trial, the statements by Reyes and Gonzalez summarized above were read to the jury. Subsequently, the jury was admonished to consider against each defendant only the contents of his own statement. We conclude that the admission of Reyes’ statement did not require severance, given the limiting instruction to the jury and the fact that Gonzalez’ own statement was substantially similar to that of Reyes. (People v. Colon (1979), 69 Ill. App. 3d 1021, 387 N.E.2d 956.) Therefore, we hold that the trial court did not err in denying Gonzalez’ motion to sever.

In this regard Gonzalez has argued that admission of Reyes’ statement violated the principles announced by the United States Supreme Court in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. Bruton held that admission in a joint trial of an out-of-court statement by one co-defendant implicating a second co-defendant violates the latter’s sixth amendment right to confront witnesses against him. However, Illinois courts have held that the Rruton rule is not violated when the defendant claiming the benefit of the rule has made a similar inculpatory statement which is admitted into evidence. (People v. Rosochacki (1969), 41 Ill. 2d 483, 493-94, 244 N.E.2d 136; People v. Turner (1980), 92 Ill. App. 3d 265, 270-71, 415 N.E.2d 1114; see also Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132.) Since the extrajudicial statement of Gonzalez was substantially similar to the out-of-court statement of Reyes, we conclude that the principles announced in Bruton were not violated.

Ill

Gonzalez next contends that the trial court improperly limited his cross-examination of prosecution witness Thomas Stump. Prior to the commencement of the trial the State presented a motion in limine to restrict defense examination of this witness. Specifically, the State sought to preclude the defense from using the fact that Stump had been arrested on a burglary charge on May 27,1977, and that the charge had been nolle pressed on June 2, 1977. Defendant contends the ruling of the trial court prevented defense counsel from demonstrating to the jury that the witness had an interest in avoiding prosecution for violating the law. The State points out that the burglary charge against Stump had been nolle pressed for more than six months before Stump testified and states the trial court properly exercised its discretion in limiting the cross-examination.

The scope of cross-examination is generally within the discretion of the trial court, but “the widest latitude should generally be allowed the defendant in cross-examination for the purpose of establishing bias.” (People v. Barr (1972), 51 Ill. 2d 50, 51-52, 280 N.E.2d 708; People v. Mason (1963), 28 Ill. 2d 396, 403, 192 N.E.2d 835.) While evidence of an arrest or an indictment may not ordinarily be admissible to impeach credibility generally (People v. Galloway (1974), 59 Ill. 2d 158, 163, 319 N.E.2d 498), our supreme court, in Barr, has stated:

“The accused has a right to question a witness concerning any matter which goes to explain, modify, or discredit what he said on direct examination [citations], and the fact that a witness has been arrested or charged with a crime may be shown or inquired into where it would reasonably tend to indicate that his testimony might be influenced by interest, bias, or a motive to testify falsely. [Citation.]” 51 Ill. 2d 50, 51.

In People v. Norwood (1973), 54 Ill. 2d 253, 296 N.E.2d 852, our supreme court held that the Juvenile Court Act did not bar the disclosure of the juvenile records of a witness insofar as they might be relevant to the defendant’s claim that the testimony of the State’s principal witness was attributable to lenient treatment which he had received or had been promised. (54 Ill. 2d 253, 258.) The court stated that “a defendant is entitled to have the trier of the fact informed as to any promises of leniency that may have been made to the witness, whether those promises related to the present offense or to other pending charges.” 54 Ill. 2d 253, 257.

Gonzalez argues that the questioning precluded by the trial court would have been proper since it was designed to reveal illegal conduct on the part of Stump for which he could have been prosecuted and that the jury should have been informed of any deals he may have made with the prosecution, since they may demonstrate bias or motive. Gonzalez relies primarily upon Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105. That case held that in a criminal case the defendant’s right to confrontation requires that he be allowed to impeach the credibility of a crucial prosecution witness by cross-examination directed at possible bias deriving from the witness’ probationary status as a juvenile delinquent.

We conclude that the trial court erred in not permitting defense counsel to cross-examine Stump as to the disposition of the burglary charge against him. This error, however, was harmless beyond a reasonable doubt.

Improper limitation of cross-examination by the defendant does not necessarily warrant reversal. (People v. Boyce (1977), 51 Ill. App. 3d 549, 556, 366 N.E.2d 914.) “[A]ny error in restricting the cross-examination of a witness whose testimony serves merely to buttress the prosecution, or on whose credibility alone the prosecution does not rest, may be deemed harmless.” (People v. Bingham (1979), 75 Ill. App. 3d 418, 426, 394 N.E.2d 430; People v. Boyce (1977), 51 Ill. App. 3d 549, 556.) The touchstone is whether the witness’ testimony was crucial to the prosecution. If his testimony was crucial, then the restriction of cross-examination will have resulted in manifest prejudice and will require reversal. (People v. Phillips (1981), 95 Ill. App. 3d 1013, 1023, 420 N.E.2d 837; People v. Bingham (1979), 75 Ill. App. 3d 418, 425-26.) These principles were applied to a fact situation substantially similar to the facts of the instant case in Bingham. In that case, the trial court barred the defendant from inquiring on cross-examination about the fact that a prosecution witness (the victim) had been indicted for robbery, and the defendant argued that inquiry as to the indictment should have been permitted because the existence of an indictment shows bias arising out of a hope for leniency. The appellate court held that the trial court erred in not permitting an inquiry as to the indictment, but that reversal was not warranted. Reversal was not required because the witness’ testimony was not crucial to the prosecution, given substantially similar testimony by several other occurrence witnesses and the defendant’s own testimony.

In the instant case, Thomas Stump’s testimony was not crucial to Gonzalez’ convictions. Stump was not able to identify Gonzalez as one of the assailants. Other witnesses, Robert Shaw and John Mikucki, were able to identify him. Furthermore, Gonzalez admitted firing the shots which killed Glover. Under the circumstances, we conclude that the restriction of cross-examination in the instant case was harmless beyond a reasonable doubt.

IV

Gonzalez next contends that the trial court erred in allowing Dr. Mohammed Ikram, a pathologist, to testify as to the distance from which the fatal shot was fired. He asserts that although Dr. Ikram was qualified as a pathologist, there was no showing that he was qualified to give his opinion as to matters relating to ballistics and firearms.

At trial, Ikram was asked by the prosecutor whether he could ascertain how the victim was shot. Counsel for Gonzalez objected on the basis that Ikram was not a firearm’s expert. The trial court sustained this objection. Subsequently, at side bar the court ruled that Ikram was qualified to testify as to whether or not the victim’s wound was a contact wound. Following that ruling, Ikram testified that the wound inflicted was not a contact wound and that the shot had been fired from some distance away. He explained that a contact bullet would have burns surrounding it, that there would be cherry-colored discoloration under that tissue, and that in most instances carbon monoxide would be present around the wound. He also testified that his examination of the victim’s wound exhibited none of these indicia of a contact wound. On cross-examination by counsel for Gonzalez, Ikram testified that the wound was not inflicted by a gun that was within three feet of the victim.

“Expert testimony is admissible when experience and observation in a special calling gives the witness knowledge of a subject beyond that of persons of common intelligence and ordinary experience.” (People v. Wade (1977), 51 Ill. App. 3d 721, 727, 366 N.E.2d 528.) A trial judge, in determining the admissibility of such testimony, is afforded wide latitude of discretion, and a reviewing court will not overturn his decision unless that decision was clearly and prejudicially erroneous. People v. Wade (1977), 51 Ill. App. 3d 721, 727; People v. Aliwoli (1976), 42 Ill. App. 3d 1014, 1019, 356 N.E.2d 891.

Dr. Ikram’s testimony revealed that he was a physician licensed to practice medicine in Illinois and that he had several years of experience in the field of pathology. In February 1976, he was employed as a forensic pathologist by the Cook County coroner’s office. As a forensic pathologist, he had performed approximately two hundred autopsies, and in the course of performing these autopsies, he had observed gunshot wounds. Given these circumstances, we conclude that the trial court did not abuse its discretion in allowing Ikram to state his opinion that the wound inflicted upon the victim was not a contact wound.

V

Gonzalez next contends that the prosecution’s closing argument requires reversal because the prosecution improperly made comments referring to facts not in the record and only within the personal knowledge of the prosecutors. We have reviewed the record with regard to the comments to which Gonzalez objects and have considered them in the context of the entire argument. We find no error.

A prosecutor has great latitude in closing argument (People v. Hine (1980), 88 Ill. App. 3d 671, 679, 410 N.E.2d 1017), and arguments and statements made by a prosecutor which are based on facts appearing in the proof or on legitimate inferences deducible therefrom do not transcend the bounds of legitimate argument. (People v. Halteman (1956), 10 Ill. 2d 74, 83, 139 N.E.2d 286; People v. Hine (1980), 88 Ill. App. 3d 671, 679.) We conclude that the prosecution’s comments in the instant case were proper because they were either based on facts appearing in evidence or on legitimate inferences drawn therefrom.

VI

Gonzalez’ next argument is that the trial court erred in refusing to instruct the jury as to the lesser included offenses of voluntary manslaughter and involuntary manslaughter. At trial, he tendered voluntary manslaughter instructions based on sudden and intense passion resulting from serious provocation and involuntary manslaughter instructions.

A manslaughter instruction tendered by the defendant in a homicide case must be given if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter. (People v. Simpson (1978), 74 Ill. 2d 497, 500, 384 N.E.2d 373.) Voluntary manslaughter has been defined as an unjustified killing committed while under sudden and intense passion resulting from serious provocation. Serious provocation, in turn, is defined as conduct sufficient to excite an intense passion in a reasonable person. (Ill. Rev. Stat. 1975, ch. 38, par. 9—2(a).) In People v. Crews (1967), 38 Ill. 2d 331, 335, 231 N.E.2d 451, the court stated that the only types of conduct recognized as serious provocation are “substantial physical injury or assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse; but not mere words or gestures or trespass to property.” (People v. Strong (1979), 79 Ill. App. 3d 17, 24, 398 N.E.2d 216.) Gonzalez asserts that an instruction on this type of voluntary manslaughter was proper because the statements of both defendants contained assertions that they were being pursued by several youths when the shots were fired. He also asserts that the testimony of David Shields corroborated this evidence. Although Reyes’ statement does indicate that he and Gonzalez were being chased, Gonzalez’ statement does not. The jury was instructed not to consider Reyes’ statement against Gonzalez. Thus, when considering the evidence against Gonzalez, the jury would have no evidence of a “chase,” only evidence that witnesses Shaw and Mikucki followed the two Puerto Rican males. We conclude that the jury could not have found that the evidence introduced at trial established voluntary manslaughter under section 9 — 2(a). The record fails to disclose evidence of the sort of provocation which would have justified the voluntary manslaughter instructions tendered by Gonzalez. In other words, there was not any evidence which, if believed by the jury, would indicate that Gonzalez acted upon serious provocation which would have excited a reasonable man to intense passion.

Gonzalez also argues that the trial court erred in refusing to instruct the jury as to involuntary manslaughter. We have reviewed the record and conclude that there is no evidence in this case which would establish involuntary manslaughter, and that Gonzalez was not entitled to an involuntary manslaughter instruction.

VII

Gonzalez’ last contention is that the evidence introduced at trial was not sufficient to sustain his convictions of murder and attempt armed robbery. We disagree. A reviewing court will not disturb a jury’s determination of guilt unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.) Gonzalez asserts that there were numerous and serious inconsistencies among the testimonies of various State witnesses, but he does not specify these inconsistencies in his brief. In any event, where evidence is conflicting, it is the peculiar prerogative of the trier of fact to ascertain the truth. (Manion.) Thus, we conclude that Gonzalez’ last contention must fail.

VIII

Defendant Reyes’ first contention is that he was not proved guilty beyond a reasonable doubt of attempt armed robbery because he neither performed himself, nor was he legally accountable for, any act which constituted a substantial step toward the commission of armed robbery.

To commit the offense of attempt armed robbery, one must perform a substantial step toward taking property from the person or presence of another by the use of force or threat of imminent use of force while armed with a dangerous weapon. (Ill. Rev. Stat. 1975, ch. 38, pars. 8 — 4(a), 18 — 1,18—2.) Mere preparation to commit an offense does not constitute a “substantial step” for purposes of the attempt statute. (People v. Walters (1979), 69 Ill. App. 3d 906, 913, 387 N.E.2d 1230.) In our opinion the evidence proved Reyes had taken a “substantial step” in furtherance of the planned robbery. In his statement, Reyes admitted that he and Gonzalez planned to wait for the people in the drugstore to come out and then to hold them up with Gonzalez’ rifle. He admitted further that he and Gonzalez went to that drugstore. Prosecution witnesses identified Reyes as one of the two Puerto Rican males observed walking past the drugstore.

Reyes contends that since he and Gonzalez never entered the drugstore where the victims were, he could not be found guilty of attempt armed robbery. We reject this argument for two reasons. First, Reyes in his statement said the plan was to wait for their victim to exit the drugstore. It did not contemplate entry into that store. Second, if the intended victim of an armed robbery is inside of a building, entry into that building is not required for a finding of attempt armed robbery. People v. Burleson (1977), 50 Ill. App. 3d 629, 365 N.E.2d 1162.

We find the opinion in Burleson instructive. In that case, the defendant and another person, Brown, agreed to rob a bank. They performed various preparatory acts, and then on the day they had agreed to effectuate their plan, they approached the bank building. In reviewing the evidence the court said:

“Here, the defendant and Brown did not enter the bank building on [date], although they were in possession of a shotgun, suitcase and disguises which were in place when they approached the bank building. We find these acts sufficient to constitute a ‘substantial step’ toward the commission of an armed robbery in the bank.” (50 Ill. App. 3d 629, 633.)

Reyes’ attempts to distinguish the instant case from the factual situation presented in Burleson where a man bolted the door from the inside as the defendant and Brown neared the bank, thereby preventing them from entering. This fact, however, was not essential to the decision in Burleson. Rather, Burleson stands for the principle that a substantial step has been taken when an actor possesses the materials necessary to carry out the crime, at or near the place contemplated for its commission. Applying the principles announced in Burleson, we conclude that the actions of Reyes and Gonzalez in going to and walking past the drugstore while in possession of the rifle constituted a substantial step. We also conclude that there was sufficient credible evidence in the record for the jury to find Reyes guilty of attempt armed robbery beyond a reasonable doubt.

IX

Reyes also contends that he was denied his constitutional right to effective assistance of counsel at his sentencing hearing when the trial court refused to continue the hearing in aggravation and mitigation so that Reyes’ trial counsel could appear on his behalf. He relies upon both the sixth amendment to the Federal Constitution and article one, section eight of the Illinois Constitution.

On December 16, 1977, the jury returned its verdict finding Reyes guilty of attempt armed robbery; judgment was entered on this verdict, and the matter was continued for sentencing until January 23, 1978. A sentencing hearing was, in fact, held on January 30, 1978. At this hearing the court stated on the record that the matter had been continued from the previous week and that the court had indicated at that time that it would not consider any continuance in this matter. Further, the record shows that presentence investigations were presented to the respective attorneys on January 23, 1978. On January 30, 1978, attorney Georgette Panutsos announced to the court that she was appearing on behalf of Francis Andrew, Reyes’ trial counsel. At this hearing, Ms. Panutsos filed post-trial motions on behalf of Reyes. She also requested a continuance of Reyes’ sentencing hearing because Andrew was unable to be present. She said she was not familiar with the case and could not present evidence in mitigation on behalf of Reyes. The trial judge refused to grant a continuance and referred to his earlier statement that he would not consider any motion to continue. The judge stated further that he desired to enter sentence prior to the effective date of the new sentencing act, February 1, 1978, and that he realized Andrew was on trial in Federal court. Counsel for Gonzalez, Marvin Glass, interjected that Andrew would be finished in Federal court on the morning of January 31, 1978, and asked the court if it would continue the matter one day. The trial judge refused, saying this would force him to travel from the Civic Center to the Criminal Courts Building and place his schedule in disarray. Following the court’s denial of her request for a continuance, Panutsos stated that she had nothing to present in mitigation.

A motion for continuance has not been improperly denied unless it appears that the refusal to grant additional time has in some way embarrassed the accused in the preparation of his defense and thereby prejudiced him. (People v. Canaday (1971), 49 Ill. 2d 416, 427, 275 N.E.2d 356.) In People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, our supreme court discussed the statutory provisions relating to motions for continuance and the scope of review of a trial court’s decision to grant or deny a continuance. The court stated:

“By statute in Rlinois, the decision to grant or deny a motion for continuance lies in the sound discretion of the court (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 4(e)). 0 * * Our review of the trial court’s judgment in balancing these factors focuses initially on the question of whether the decision of the court amounts to an abuse of discretion. [Citation.] The determination of whether the denial of a continuance violates a substantive right of the accused must turn on the particular facts of each case. [Citation.]” 79 Ill. 2d 341, 347-48.

Resolution of the issue here also requires an analysis of a defendant’s constitutional right to counsel. Sentencing is a critical stage of a criminal proceeding at which a defendant is entitled to the effective assistance of counsel. (People v. Rivers (1978), 61 Ill. App. 3d 376, 384, 377 N.E.2d 1245; People v. Campbell (1976), 37 Ill. App. 3d 511, 514, 346 N.E.2d 441.) Reyes was deprived of effective assistance of counsel in the case at bar. Although a lawyer was present, Reyes was forced to a hearing without his trial counsel, and he was clearly prejudiced thereby. In imposing sentence upon him, the trial judge made reference to his conduct at trial as follows:

“With reference to Mr. Reyes, you not only participated in this act, but there was an episode that occurred during the trial which — which never became a part of the record, but which this court has been well aware of with reference to your conduct, with reference to what you have done. You know exactly what I am speaking of, with reference to the narcotics that was involved in here in the episode this court was put upon. And, accordingly, the court is sentencing you for the crime of attempted armed robbery to the Adult Division of the Department of Corrections of the State of Illinois for a period of not less than 2 years nor more than 6 years.” (Emphasis added.)

Attorney Panutsos was unfamiliar with the case, and, therefore, unfamiliar with this incident alluded to by the judge and unable to give any explanation.

Although the trial judge’s frustration at trial counsel’s absence is understandable under the facts presented, nevertheless we conclude that the trial court abused its discretion in denying a continuance, and proceeding with the sentencing without him. Reyes’ right to a fair sentencing hearing required the granting of the requested one-day continuance. The sentence imposed upon Reyes must be vacated.

For the aformentioned reasons, the convictions of both defendants are affirmed but the order imposing sentence upon Reyes is reversed and the cause of Reyes is remanded for a new sentencing hearing.

Affirmed in part, reversed and remanded in part.

RIZZI, P. J., and McNAMARA, J., concur.


author: JUSTICE MEJDA

text:
    FLORENCE TURNER, Plaintiff-Appellant, v. RALPH THOMPSON et al., Defendants-Appellees.
    First District (5th Division)
    No. 80-2371
    Opinion filed December 11, 1981.
    Walter M. Ketchum, Ltd., of Chicago (Patrick S. Moore, of counsel), for appellant.

      Herbert F. Stride, Ltd., of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

This action was brought to recover damages for personal injuries sustained when the plaintiff fell on the premises owned by defendants, Ralph Thompson and Billie Thompson. The plaintiff’s complaint sounded in both negligence and nuisance. The defendants counterclaimed for allegedly unpaid rent and damages to the premises. The jury rendered a general verdict in favor of plaintiff on the complaint in the amount of $30,000 and in favor of the defendants on the counterclaim in the amount of $175. However, the jury answered a tendered special interrogatory finding the plaintiff contributorily negligent. The court vacated the general verdict and entered judgment in favor of the defendants on both the complaint and counterclaim. Plaintiff appeals, presenting the following issues for review: (1) whether the special interrogatory is an unconstitutional device; (2) whether the special interrogatory is in conflict with Illinois Pattern Jury Instructions, Civil, No. 1.01 (2d ed. 1971) (hereinafter cited as IPI Civil); (3) whether the special interrogatory was in proper form; (4) whether certain jury instructions were in error; (5) whether the trial court erred in entering judgment on the special verdict; and (6) whether defense counsel’s question regarding plaintiff’s failure to file an income tax return was so prejudicial as to warrant the granting of a new trial. No issues are raised as to the counterclaim. We reverse the judgment entered on the special finding and remand the cause with directions to enter judgment in favor of plaintiff.

The following testimony adduced at trial is relevant for determination of this appeal.

In April of 1975, plaintiff leased an apartment from defendants Ralph Thompson and Billie Thompson under an oral agreement whereby the plaintiff agreed to pay $175 per month for the apartment and would do any necessary minor repairs. The defendant Ralph Thompson agreed to do the necessary major repairs. Sarah Thompson collected the rent and would send it to her brother-in-law Ralph Thompson who resided in Tennessee.

During the trial Florence Manninen (nee Turner), Sidney Manninen, now her husband, and her daughters, Lola Brion, Sandy Turner and Patti Turner, all testified that during plaintiff’s tenancy there was never an operative light on the back porch and stairway of the building in question.

On September 27, 1975, at about-10:30 p.m., the plaintiff began to descend the back steps of the building while assisting an elderly dinner guest. As she began her descent, she had hold of her elderly guest’s right arm with her left arm. Plaintiff was doing this because she was worried about the stairs. At the same moment she was reaching for the bannister with her right arm. The plaintiff fell three or four stairs, resulting in a fractured ankle.

The lighting in the front entrance to the building was always in working condition. Plaintiff used the back stairway at night maybe once a week. She would use a flashlight every time she used those stairs at night and would make her daughters use a flashlight also. She did not use a flashlight on the night of the accident.

The plaintiff presented expert testimony from an electrician. He went to the premises and took photographs of the scene and inspected the electrical system on the stairwell. He testified that the light was inoperative and not appropriate for that particular area.

Count I of plaintiff’s two-count complaint alleged that the defendants negligently failed to inspect and repair the lights on the rear exit or stairs of the building. Count II alleged that plaintiff was injured as a result of a public nuisance caused by defendant’s failure to adequately light the rear exit or stairs of the building in violation of the Municipal Code of Chicago, section 67 — 17. Defendants Ralph Thompson and Billie Thompson counterclaimed for alleged unpaid rent and damage to the premises. At the close of the plaintiff’s case Sarah Thompson was dismissed as a party on motion of defendants without objection by plaintiff.

The jury found in favor of the plaintiff and against the defendants on the complaint, awarding plaintiff $30,000 damages in the general verdict. However, the jury also answered in the affirmative the following special interrogatory: “Just before and during the occurrence was the plaintiff guilty of contributory negligence, which was the direct and proximate cause of her own injury.”

The plaintiff moved that the finding on the special interrogatory be vacated as against the manifest weight of the evidence, and being unconstitutional. This motion was denied. The defendants moved that the general verdict be vacated and the court enter judgment against plaintiff and in favor of the defendants. This motion was sustained. A post-trial motion filed by the plaintiff was denied.

Opinion

Plaintiff initially challenges the constitutionality of section 65 of the Civil Practice Act (Ill. Rev. Stat. 1979, eh. 110, par. 65). Under this provision, when a special finding of fact is inconsistent with the general verdict, the special finding “controls.” Citing the appellate court opinion in Albaugh v. Cooley (1980), 88 Ill. App. 3d 320, 410 N.E.2d 873, plaintiff urges essentially that the special interrogatory is an unconstitutional device. During the pendency of this appeal the Illinois Supreme Court reversed Albaugh and held that the use of the special interrogatory as proscribed by the legislature under section 65 is proper. (Albaugh v. Cooley (1981), 87 Ill. 2d 241, 429 N.E.2d 837.) Also, the appellate court opinion in Jenkins v. Bobrowicz (1981), 97 Ill. App. 3d 526, 422 N.E.2d 1132, held that section 65 was not an unconstitutional invasion of the judiciary’s inherent powers under the separation doctrine. We believe that the above cases dispose of plaintiff’s constitutional arguments with respect to section 65, and we will be guided by these decisions in our conclusions in the instant case.

Plaintiff has also argued that section 65 is in conflict with IPI Civil No. 1.01, which provides, in part:

“[2] The law applicable to this case is contained in these instructions and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction and disregarding others.” (IPI Civil No. 1.01[2].)

Plaintiff’s contention is that the special interrogatory in this case requires the jury to pick out one instruction dealing with contributory negligence, and thus highlights it above all other instructions. This argument is without merit. Instruction 1.01 is a cautionary instruction. The comment accompanying it clearly sets out that “[t]his instruction is designed to prevent jurors from capriciously selecting one of several statements of law and using it in their deliberations out of context with the whole charge.” (IPI Civil No. 1.01[2], Comment.) The instruction guarantees that the jury will not follow one rule of law in the instructions at the expense of another rule of law given in the instructions. The special interrogatory requires the jury to respond regarding one or more issues of ultimate fact. It does not require the jury to consider one rule of law above all others submitted in the instructions. Therefore, in our view section 65 is not in conflict with the Illinois Pattern Jury Instructions as promulgated by our supreme court.

Plaintiff next argues that the special interrogatory was improper because it was incapable of controlling the general verdict. Plaintiff contends that in an action for nuisance the question of plaintiff’s contributory negligence is not an issue. (Menolascino v. Superior Felt & Bedding Co. (1942), 313 Ill. App. 557, 40 N.E.2d 813.) Thus, plaintiff concludes that where the general verdict was premised upon two theories of liability, one sounding in negligence and the other sounding in nuisance, the special interrogatory was incapable of controlling the verdict, and therefore its submission to the jury was error.

Defendants argue, on the other hand, that contributory negligence is a defense to an action based on nuisance, particularly when such nuisance has its origin in negligence. (See, e.g., McFarlane v. City of Niagara Falls (1928), 247 N.Y. 340, 160 N.E. 391.) We note that the recent decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, has no effect on the decision here because this trial commenced prior to June 8,1981, the date on which Alois became effective. Accordingly, the law of contributory negligence prior to Alois is germane to this appeal.

In the instant case the parties have raised no issues on the pleadings and have conceded in their respective briefs that plaintiff’s complaint sounded in both negligence and nuisance. We find it unnecessary therefore to consider the viability of plaintiff’s “nuisance” claim. We note parenthetically that historically there has been much confusion surrounding the characterization of the word “nuisance” and it appears that a wide range of subject matter is embraced under this term. (See generally Prosser, Torts §91 (4th ed. 1971).) Ordinarily, however, neither the negligence of the defendant nor the contributory negligence of the plaintiff is involved in an action with respect to a nuisance. (Belmar Drive-In Theatre Co. v. Illinois State Toll Highway Com. (1966), 34 Ill. 2d 544, 216 N.E.2d 788; Menolascino v. Superior Felt & Bedding Co. (1942), 313 Ill. App. 557, 40 N.E.2d 813; see generally 29 Ill. L. & Prac. Nuisance §13 (1957); 66 C.J.S. Nuisances §11 (1950); see also Richards v. Village of Edinburg (1968), 97 Ill. App. 2d 36, 239 N.E.2d 479.) A municipality has the power to declare anything a nuisance which is either a nuisance per se, or a nuisance at common law or statute. (See, e.g., Village of Riverwoods v. Untermyer (1977), 54 Ill. App. 3d 816, 369 N.E.2d 1385.) The condition or use of property may constitute a nuisance where some legal right, either private or public, is violated thereby. See, e.g., Canal Melting Co. v. Columbia Park Co. (1900), 99 Ill. App. 215.

In the instant case plaintiff premises her count in nuisance upon the defendants’ alleged failure to adequately light by electricity the exit to the dwelling leased by her from the defendants in violation of the Municipal Code of Chicago, section 67 — 17. This section provides that all exits from dwellings shall be adequately lighted by electricity. The Municipal Code also provides that “[e]very building or structure maintained in violation of the building provisions of this code, or which is in an unsanitary condition, or in an unsafe or dangerous condition, or which in any manner endangers the health or safety of any person or persons, is hereby declared to be a public nuisance.” (Chicago Mun. Code §99 — 4.) The record before us indicates that the nuisance count was pleaded and tried as an action for damages for a public nuisance. Such being the case, the question of plaintiff’s contributory negligence is irrelevant to defendants’ liability under the above stated principles.

It is well settled in Illinois that a special interrogatory is not proper unless it relates to an ultimate fact in the case and unless an answer responsive to it would be inconsistent with the general verdict which might be returned upon the issues in the case. (Gasbarra v. St. James Hospital (1979), 85 Ill. App. 3d 32, 406 N.E.2d 544; Le Flore v. Chicago Transit Authority (1973), 12 Ill. App. 3d 71, 297 N.E.2d 758.) If the special interrogatory does not reach the ultimate issue and is not inconsistent with the general verdict, then to rule that the special finding controls the general verdict is error. Lancaster v. Jeffrey Gallon, Inc. (1979), 77 Ill. App. 3d 819, 396 N.E.2d 648.

In the instant case it is conceded that plaintiff pleaded both negligence and nuisance. Further, plaintiff adduced evidence at trial regarding the “inoperative” and “inappropriate” condition of the lighting on the exit of defendants’ building. Therefore, in order to submit a proper interrogatory in this case, the court would have had to submit an interrogatory that would be inconsistent with both negligence and nuisance.

An inconsistency between a special interrogatory and the general verdict exists only when the special findings are clearly and absolutely irreconcilable with the general verdict. (Lanning v. Wiatr (1979), 76 Ill. App. 3d 135, 394 N.E.2d 873.) Where the special findings do not cover all of the issues submitted to the jury and are not solely determinative of the case, the general verdict will control. See, e.g., Cohen v. Sager (1971), 2 Ill. App. 3d 1018, 278 N.E.2d 453; Smith v. McCarthy (1889), 33 Ill. App. 176.

Accordingly, we hold that since the plaintiff’s contributory negligence was irrelevant to her action for damages for a public nuisance, the special finding in response to that special interrogatory could not be inconsistent with the general verdict rendered in favor of the plaintiff and was, therefore, not in proper form. Consequently, the trial court’s order vacating the general verdict and entering judgment on the special finding was in error. In view of our decision, we need not consider the remaining issues initially set forth in this appeal.

For the reasons stated herein, the order vacating the general verdict and entering judgment on the special finding is reversed and the cause is remanded with directions to enter judgment on the general verdict in favor of the plaintiff allowing credit for the award on the counterclaim.

Reversed and remanded, with directions.

LORENZ and WILSON, JJ., concur.


author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY PATTERSON et al., Defendants-Appellants.
    First District (3rd Division)
    Nos. 80-1636, 80-1779, 80-1843 cons.
    Opinion filed December 16, 1981.

      Weinberg & Weinberg, of Chicago, for appellant Larry Patterson.
    James J. Doherty, Public Defender, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant Eli Wilson.
    David C. Thomas, of Chicago, for appellant Eddie Garlington.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendants Larry Patterson, Eli Wilson, and Eddie Garlington were charged with the murder of Renell Hentley. After a trial without a jury, they all were found guilty of that crime. All three defendants were sentenced to 30-year terms. On appeal defendants contend that they were not proved guilty beyond a reasonable doubt; that the trial court erred in admitting a statement made by Garlington which was not included in the State’s answer to defendants’ discovery motion; that the court erroneously admitted two hearsay statements; and that the court erred in allowing a prosecutor with a prior professional relationship with Garlington to prosecute them.

Yvonne Amos, Garlington’s girlfriend at the time of the events in question, was the principal State witness and testified that on January 18, 1979, the evening prior to Hentley’s death, she was informed that Garlington’s brother Reginald had been shot in a pool hall. (Reginald died and Garlington was a State witness in the successful prosecution of his two killers.) Amos spent that night at the Garlington home with several others, including Hentley and the defendants. At approximately 8 a.m. the following day Garlington instructed her to awaken Hentley and to instruct him to go to Garlington’s bedroom. Hentley was followed into the room by defendants and Jimmie Key. Amos heard scuffling noises coming from the bedroom, and she heard Hentley say that they had the wrong man. Garlington and Key came out of the bedroom two or three times. On one such occasion Garlington said, “It’s going to be all right,” to which Key replied, “We’re going to take care of him.” When the five men came out of the bedroom, Amos described Hentley as having his hair sticking up, a red face, wrinkled clothes, and looking “satisfied.” She then saw Wilson, Patterson, Key and Hentley go out the back door. She did not see Garlington go out. About 20 minutes later the men returned without Hentley. One of them took off a black jacket and stuffed it in a box or behind some clothes. Amos testified that she had given several prior statements which conflicted with her trial testimony. She gave these statements out of fear and stated that she was telling the truth at trial.

Kenneth Green, a 12-year-old neighbor, testified for the State that at approximately 10 a.m. he saw five men emerge from Garlington’s yard. He could identify only Hentley. One of the men punched Hentley while the others surrounded him. Green then saw the man wearing a black coat drag Hentley to the garage and strike him over the head with a bottle. At this point Green ran to a neighbor’s home at which time he heard 5 or 6 shots. After a few minutes Green returned to the alley, where he observed a trail of blood.

Officer Anthony Barry of the Chicago Police Department testified that at 10:10 a.m. he found Hentley dead in the alley. He observed a trail of blood from the body to the alley behind the Garlington residence where he also found a broken bottle. Hentley had $105 in his pockets.

Donna Garlington, Garlington’s sister, testified for the defense that Amos left the Garlington home at about 2 a.m. the morning of Hentley’s murder and did not return until that afternoon or evening. She further testified that Hentley himself left the residence about 4:45 a.m. and did not return.

Lillian Ward, a funeral director, visited the Garlington residence to make funeral arrangements. She was there, on January 20, at 9:10 or 9:15 a.m. for about 30 minutes. The atmosphere was quiet, and she heard no fighting or scuffling. She also testified that her notes supported her time sequence.

We initially consider defendants’ contention that the trial court committed reversible error in allowing Officer Edward Beale of the Chicago Police Department to testify over objection as to an out-of-court statement allegedly made by Garlington. Beale testified that Garlington, while at the hospital the night his brother was shot and killed, said to a friend, “Well, let’s go, we’ll take care of this, we don’t need no police.” The basis for the objection was that the statement was omitted from the State’s answer to defendants’ discovery motion in violation of Supreme Court Rule 412 (Ill. Rev. Stat. 1977, ch. 110A, par. 412(a)(ii)).

In a criminal prosecution the rule requires the State to disclose, upon defendant’s request, any oral statement made by the defendant of which the State is aware. The purpose of the rule is to protect a defendant against surprise, unfairness, and inadequate preparation. (People v. Boucher (1978), 62 Ill. App. 3d 436, 379 N.E.2d 339.) Compliance with the rule is mandatory (People v. Musgray (1976), 37 Ill. App. 3d 48, 344 N.E.2d 708), excusable only when the State was unaware of the statement prior to trial and could not have learned of it by the exercise of due diligence. (People v. Shegog (1976), 37 Ill. App. 3d 615, 346 N.E.2d 208.) The State asserts that it was unaware of the statement until after commencement of the trial, learning of it on Thursday evening after the trial had been recessed until Monday. The State denies any lack of diligence, pointing out that Beale’s only connection with the Hentley murder was the fact that he investigated the murder of Garlington’s brother on the previous evening.

Even if the State fails to exercise due diligence, noncompliance with Rule 412 does not require reversal absent a showing of prejudice. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Where the court becomes aware of a defendant’s surprise and potential prejudice and gives counsel an opportunity to investigate the matter adequately, defendant’s failure to avail himself of that opportunity negates his contention of surprise. (People v. Kradenych (1980), 83 Ill. App. 3d 547, 404 N.E.2d 488.) In the present case defendants declined the trial court’s offer of time to investigate the matter despite the State’s assertion that it would be agreeable to any amount of time necessary. In this regard, defendants’ reliance on People v. Millan (1977), 47 Ill. App. 3d 296, 361 N.E.2d 823, and People v. Mourning (1975), 27 Ill. App. 3d 414, 327 N.E.2d 279, is misplaced. In each of those cases prejudice was found where the defendant’s request for a continuance was denied and only a short recess was offered. Here, the trial court did not err in permitting Officer Beale to testify as to the statement made by Garlington.

Defendants also contend that two hearsay statements made by Jimmie Key, who did not testify, were erroneously admitted into evidence.

Amos testified that on the evening after Hentley was killed she overheard a conversation between Garlington and Key in which Garlington stated that Hentley had betrayed his brother. Key replied, “I told you we would take care of him.” The State argues that defendants waived this issue for purposes of appeal by failing to object at trial.

An objection to hearsay testimony must be made at the time of its introduction. The objection should designate the particular testimony considered objectionable and the specific reason for the objection. Failure to make a timely and proper objection or to move to strike the testimony after its admission constitutes a waiver and cures the error, if any. (People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817.) In the present case defendants failed to object until after the State had elicited the conversation at issue and had completed another question and answer. At that time counsel merely expressed a continuing objection to all statements made by anyone other than defendants. Even if we assume this was a hearsay objection, it came too late. (In re Duncan v. Harmon (1979), 77 Ill. App. 3d 927, 397 N.E.2d 497.) Any error was waived.

The second statement complained of was the remark Key made to Garlington that morning, “We’re going to take care of him.” This comment was made before the accused left the Garlington home with Hentley.

We hold that the statement was admissible under the co-conspirator exception to the hearsay rule. Under this exception statements of one co-conspirator, pursuant to or in furtherance of the conspiracy, are admissible against any other member of the conspiracy. (People v. Goodman (1980), 81 Ill. 2d 278, 408 N.E.2d 215.) The State need not charge the crime of conspiracy so long as it makes an independent prima facie evidentiary showing of a conspiracy or joint venture. (People v. Goodman; People v. Gray (1980), 85 Ill. App. 3d 726, 410 N.E.2d 493.) We believe that the State offered sufficient independent evidence to make a prima facie case of conspiracy among defendants. Amos’ testimony, corroborated by Green, in addition to the other admissible statements by Garlington and Key, did establish a prima facie showing that defendants were engaged in a common plan to achieve a criminal goal.

Defendants rely on Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, for their contention that admission of these two statements violated their sixth amendment right to confront witnesses. That case involved a confession admissible against the defendant who made it but which was inadmissible hearsay against his co-defendant although it inculpated him as well. The court focused on the substantial risk that the jury, despite instructions to the contrary, was unable to disregard the confession as to Bruton. The court held its admission violated Bruton’s right to confront witnesses, but limited the impact of its decision to hearsay statements which do not qualify under an exception to the hearsay rule. Bruton is further distinguishable in that the inability of a jury to follow instructions is absent in the present case.

Defendants also contend that the trial court committed reversible error in permitting assistant State’s Attorney Ronald Guzman to prosecute the present case. The sole basis for defendants’ argument is that Guzman also represented the State in the prosecution of the murder of Garlington’s brother, a prior case in-which Garlington testified for the State. Guzman’s relationship with Garlington was never attorney-client in nature. Defendants have not presented any other evidence which would infer a conflict of interest, and there is no merit in their claim of error. Cases cited by defendants for the proposition that it was error to permit Guzman to prosecute them all involved attorneys who acquired information from a party who sought their legal services and then participated in the prosecution of that party on charges arising out of the information acquired. People v. Gerold (1914), 265 Ill. 448, 107 N.E. 165; People v. Rhymer (1975), 32 Ill. App. 3d 431, 336 N.E.2d 203; People v. Curry (1971), 1 Ill. App. 3d 87, 272 N.E.2d 669.

We finally consider defendants’ contention that they were not proved guilty beyond a reasonable doubt. In making this argument defendants stress several points: that Green’s description of the men he saw in the alley is inconsistent with a description of defendants; that there was a substantial interval between the time Amos saw defendants depart with Hentley and the time Green witnessed the beating in the alley; that the testimony of the funeral director and Garlington’s sister contradicted that of Amos; that Amos was an incredible witness; and that the State failed to rule out other reasonable hypotheses of innocence.

Green, who was himself 5'8" tall, described the men in the alley as being 6' tall. Defendants in fact range in height from 5'7" to 5'11". Considering that Green viewed the men from about 50 feet away, a difference of one to five inches in height is not so great as to be inconsistent with their actual appearance. Compare People v. Kilgore (1973), 15 Ill. App. 3d 862, 305 N.E.2d 328.

Likewise the time differential suggested by the witnesses is not so great as to create a reasonable doubt. Defendants’ claim that 90 minutes to two hours elapsed between the time Amos saw defendants exit the Garlington home with Hentley and the time Green observed the men beating him is not supported by the evidence. Amos’ testimony that she awakened Hentley at 8 a.m. was an estimation as to time. Furthermore, from her narration of ensuing events, it could be inferred that a substantial amount of time passed prior to defendants’ exit with Hentley. Green testified that he started shoveling snow about 8 a.m., and he estimated that it was about 10 a.m. when he viewed the attack. In light of the fact that both Amos and Green were merely estimating as to time, their testimony was not contradictory. Any inaccuracy as to their time estimates was insufficient to destroy their credibility. Nor did the testimony of Lillian Ward, the funeral director, contradict that of the State witnesses as to time. Ward merely stated that she was at the Garlington residence from 9:15 to 9:45 a.m. and that during that time she heard no scuffling or shots. Amos and Green were unable to state exactly what time the altercation and shooting occurred, but that fact did not require the trial court to reject their testimony.

The only testimony which directly contradicts Amos’ testimony is that of Garlington’s sister. Defendants argue that because of that contradiction and because Amos gave conflicting statements on prior occasions her testimony was so incredible that it should be given no weight.

In a trial without a jury it is the province of the trial court to determine credibility and weight of testimony and to resolve inconsistencies therein. (People v. Pagan (1972), 52 Ill. 2d 525, 288 N.E.2d 102.) Since the trial court had an opportunity to observe both witnesses this court will not set aside judgment unless the proof of guilt is so unsatisfactory as to create a reasonable doubt of defendants’ guilt. (People v. Rosa (1981), 93 Ill. App. 3d 1010, 418 N.E.2d 124.) While the evidence was circumstantial, it was not so unsatisfactory as to create a reasonable doubt of defendants’ guilt.

Defendants correctly point out that where the evidence is entirely circumstantial, guilt must be so thoroughly established as to exclude other reasonable hypotheses. (People v. Lewellen (1969), 43 Ill. 2d 74, 250 N.E.2d 651.) This is not to say that the State must prove guilt beyond any possibility of a doubt (People v. Williams (1980), 85 Ill. App. 3d 850, 407 N.E.2d 608), nor must each link in the chain of circumstances be proved beyond a reasonable doubt in order to establish guilt. It is sufficient if all the evidence taken together satisfies the trier of fact beyond a reasonable doubt. (People v. Foster (1979), 76 Ill. 2d 365, 392 N.E.2d 6.) The testimony of Amos and Green, together with the admissible statements and admissions, met that burden.

Garlington finally argues separately that since Amos did not place him with the other defendants and Hentley, the evidence is insufficient to sustain his conviction on an accountability theory. In order to establish accountability the State must prove beyond a reasonable doubt that defendant solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of an offense; that this participation took place either before or during the commission of the offense; and that defendant had concurrent specific intent to promote or facilitate the commission of the offense. (People v. Ware (1980), 82 Ill. App. 3d 297, 402 N.E.2d 762.) The State has met its burden of showing specific intent when it has proved beyond a reasonable doubt that defendant shared the criminal intent of the principal or that there was a community of unlawful purpose. (People v. Hill (1977), 53 Ill. App. 3d 280, 368 N.E.2d 714.) Although mere negative acquiescence to another’s actions is ordinarily insufficient to establish accountability (People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150), one may be held to aid or abet without actively participating in the overt act. People v. Kessler (1974), 57 Ill. 2d 493, 313 N.E.2d 29.

In the present case, the statements of Garlington and Key, coupled with the acts of all the defendants at the Garlington residence on the morning of Hentley’s death, suffice to show that Garlington shared with the other defendants a specific intent to accomplish an unlawful purpose. Whether that purpose encompassed Hentley’s murder or was limited to a beating, all the defendants are accountable for the murder since it was committed in furtherance of their common purpose. People v. Kessler.

For the reasons stated, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

McGILLICUDDY and WHITE, JJ., concur.