author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The Village of Cahokia, Plaintiff-Appellant, v. Carl Wright et al., Defendants-Appellees.
    (No. 72-160;
    Fifth District
    April 9, 1973.

      Rehearing denied May 9,1973.

      John R. Sprague, Jr., of Sprague, Sprague & Ysursa, of Belleville, for appellant.
    David H. Goldenhersh, of Goldenhersh & Goldenhersh, of East St. Louis, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the plaintiff, Village of Cahokia, from the order of the Circuit Court of St. Clair County, dismissing charges of ordinance violation against the defendants. The defendants’ separate causes were consolidated and their motions to dismiss were sustained by the trial court.

There is no dispute as to the facts. Ordinance No. 418, Section 1, amending Part III, Section 3, Paragraph 5, of Ordinance No. 393, entitled “Zoning Ordinance for the Village of Cahokia”, provides:

“Except as provided in the following, no person shall be permitted to park or occupy any trailer on any premises in any district outside of an approved trailer park. Emergency or temporary stopping of a trailer shall be allowed on any street, alley, or highway for not longer than two horns subject to any prohibitions, regulations or limitations imposed by the traffic regulations or laws for such street, alley, or highway. Nowhere in the Village of Cahokia, Illinois, shall the wheels of any trailer be permitted to be removed except for repair, nor shall any trailer be permitted to be otherwise permanently fixed to the ground in a manner that would prevent its removal.”

The ordinance provides that a fine of up to $200 or imprisonment not to exceed six months or both may be imposed for each violation, and a separate offense is committed on each day during which a violation occurs.

The trailers, owned by the defendants, were placed upon their lots which they owned personally and which were located in an area zoned R-l, viz. single family residences. They were subsequently charged with violating that portion of the zoning ordinance which prohibited persons from parking or occupying any trailer “on any premises in any district outside of an approved trailer park”.

The trial court ruled that the ordinance as written and being applied to the defendants was a violation of their constitutional rights and granted their motions to dismiss.

The defendants argue that the ordinance, as applied to them, is a denial of due process and equal protection of the law because the plaintiff does not have the authority to prohibit mobile home owners from using their trailers as residences on their own property. Defendants maintain that the exclusion of individual trailers within the entire village, except in approved trailer parks, is unreasonable as applied to them as mobile home owners.

Defendants allege that Ill. Rev. Stat. 1971, ch. 111½, par. 159, clearly indicates that the legislature recognized that individual trailers have the capability of being transportable as mobile home or statutory permanent homes. That section defines a mobile home and provides in pertinent part that “any such structure resting in whole on a permanent foundation with wheels, tongue and hitch permanently removed, shall not be construed as a ‘Trailer Coach’ or ‘Mobile home’.” It is urged by defendants that Ordinance No. 418 which prohibits the property owner from removing the wheels and tongue from a trailer and affixing said trailer to a permanent foundation is an attempt by the Village of Cahokia to circumvent this legislative intent with respect to these structures.

Defendants cite Rezler v. Village of Riverside (1963), 28 Ill.2d 142, 190 N.E.2d 706, as authority for their argument. That case involved an action to restrain enforcement of a village licensing ordinance for the operation of a trailer park. Plaintiff argued that the ordinance regulating trailer camps was unreasonable because it limited the length of stay in a trailer camp and prohibited the removal of wheels. The ordinance in question treated the removal of the wheels or permanent attachment of the trailer to the ground as a conversion of the trailer into an ordinary residence building, which had to comply with the applicable building and zoning codes.

The Court in Rezler found that the purpose of the ordinance was to prevent permanent occupation of dwelling places which do not conform to the requirements of the building codes. It also found that the State statute (section 159) demonstrated a similar purpose to guard against the use of trailers as permanent dwelling places. The Court then added, at 710-11: “[S]uch an approach to the treatment of trailers has been accepted as reasonable and valid * * *. The responsibility of the municipality is inevitably enlarged as the period of occupancy lengthens. As the occupants approach the status of village residents, their health, education and welfare increasingly become village concerns.” Consequently, while the court in Rezler recognized the municipality’s right to classify trailers with other habitations serving the same function, it also recognized and gave support to the regulatory ordinance prohibiting the removal of wheels from a trailer. As a result, the Court upheld the regulatory ordinance and held that the village could properly refuse to issue plaintiff a license for the future. Nowhere in that decision was it expressed or implied that a municipality is prohibited from enacting the type of ordinance involved in this case. Rather, the Court heralded the ordinance as a valid attempt by a municipality to prevent a trailer from becoming a permanent residence in violation of the then prevailing building and zoning codes.

Defendants also cite, and the lower court relied upon, City of Sparta v. Brenning (1971), 45 Ill.2d 359, 259 N.E.2d 30, in which case the defendants’ principal contention was that the power to limit mobile homes to licensed trailer parks had never been delegated, expressly or implicitly, to municipalities by the General Assembly. They argued that the city ordinance which prohibited them from using their trailers as residences on private plots of land outside of approved trailer parks was a deprivation of property without due process and that it denied them equal protection of the law. Our Supreme Court held that, since the City had not adopted a comprehensive zoning ordinance, the ordinance was not an exercise of the City’s zoning power and therefore the City was without authority to enact such an ordinance, The gonstitutional objections raised by the defendants were not considered by the Court because it found that the authority sought to be exercised by the municipality had not been conferred upon it by the General Assembly. Thus, this case is easily distinguishable from ours in that here the plaintiff enacted the subject ordinance pursuant to a comprehensive zoning plan, while in the City of Sparta v. Brenning, supra, the City attempted to exercise its authority to zone without having adopted a comprehensive zoning ordinance.

The lower corut also relied upon City of Belleville v. Leonard (1969), 108 Ill.App.2d 26, 246 N.E.2d 464, as support for its conclusion. In that case, the issue was whether defendants’ trailer constituted a legal nonconforming use before the applicable zoning restriction became effective. The court held it did since the record revealed that the defendant had expended considerable time, energy and money readying his property with the expressed intent to place a trailer on a part of it. Since the ordinance in question authorized the continuation of non-conforming uses, that decision, therefore, was concerned only with determining whether defendant’s trailer qualified as a non-conforming use and not upon whether the city had the right in the first place to enact such a zoning regulation.

It is apparent that the cases cited by the defendant and relied upon by the court below do not clearly resolve the question whether the zoning ordinance, as applied to the defendants, constitutes a violation of due process and equal protection of the law. To answer this question, it is necessary to determine the nature and character of the zoning authority delegated to municipalities and further consider the reasonableness of zoning classifications.

Section 11 — 13—1, chapter 24 of Illinois Revised Statutes (1971), authorizes municipalities to formulate comprehensive zoning and use plans which impose restrictions upon private property. These zoning ordinances are based upon the police power of the state to enact laws for the safety, health, morals and general welfare of the people. (Avenue State Bank v. Village of Oak Park (1968), 99 Ill.App.2d 329, 241 N.E.2d 630.) Thus a municipal corporation has the right to determine whether conditions or the public interests demand an exercise of the power to pass a zoning ordinance and to select the measures that are necessary for that purpose. (8 McQuilian, Mun. Cor. (3rd Ed. 1968), Section 25.63.) However the municipal corporation cannot exercise its power to enact zoning measures in an unreasonable, oppressive, arbitrary or discriminatory manner. To do so, of course, would be a violation of due process and equal protection of the law. But the presumption is that reasonable zoning, especially where it is comprehensive, is constitutional and valid as a proper exercise of police power.

It further is clear that another function of the municipal legislative body is to classify uses to which realty may be put, and there appears to be no constitutional limitation on a municipality’s power to exclude uses throughout an entire district area except that the exclusion must bear a substantial relationship to the preservation of public health, safety, morals or general welfare. (High Meadows Park, Inc. v. City of Aurora (1969), 112 Ill.App.2d 220, 250 N.E.2d 517.) In County of Winnebago v. Hartman (1968), 104 Ill.App.2d 119, 242 N.E.2d 916, a case involving a county zoning ordinance prohibiting trailers in certain areas, the court said that while the county does have the power to define and regulate trailers, it had not done so in a manner which would prohibit the trailers involved. In the case of Rezler v. Village of Riverside (1963), 28 Ill.2d 142, 146-148, 190 N.E.2d 706, the Supreme Court pointed out that the Trailer Coach Park Act (Ill. Rev. Stat. 1953, ch. 111½, par. 168) did not supersede the power of the county to regulate trailers and it is clear that the county has that power and may exercise it in various ways. (See Ill. Rev. Stat. 1971, ch. 111½, par. 168.) Thus the municipality in the instant case concededly has the authority to regulate the use of trailers through its zoning powers. See also Town of Cicero v. Weilander (1962), 35 Ill.App.2d 456, 183 N.E.2d 40.

The further question is whether the zoning ordinance, which as construed, prohibits the use of trailers throughout the Village of Cahokia, except in authorized trailer parks, bears a reasonable relationship to the purposes which zoning is intended to promote. A municipality may reasonably consider that this type of dwelling unit, whether found on wheels or permanently fixed to the ground, “is detrimental to the values of adjacent conventional single family houses” (Town of Manchester v. Phillips (1962), 343 Mass. 591, 180 N.E.2d 333, 336), “stifles development of the area for residential purposes” (Napierkowski v. Township of Gloucester (1959), 29 N.J. 481, 493-494, 150 A.2d 481, 487), or “involves potential hazards to public health”. (State v. Murray (1971 Mo.), 471 S.W.2d 460, 462.) This last statement was expounded upon in Napierkowski v. Township of Gloucester, supra, at 489 where the court said:

“In our view, prohibition of trailers as residences at other than duly licensed trailer parks or camps is a reasonable exercise of the police power, designed to promote the general health, safety and welfare of the municipality of assuring that adequate provisions are made for drainage, sewage fácilities, water and lighting of trailers and operators to centralize and facilitate enforcement of the aforesaid requirements.”

Furthermore, in determining whether a zoning classification violates the equal protection clause, it is fundamental that “there be a reasonable basis for distinguishing the class to which the law is applicable from the class to which it is not”. (People ex rel. County of Du Page v. Smith (1961), 21 Ill.2d 572, 578,173 N.E.2d 485, 489.) Likewise, “[N]either the constitutional requirement of equal protection, nor that of due process, proscribes a classification among groups differently situated, so long as a reasonable basis for the distinction exists or may reasonably be conceived to justify it.” (People v. Wilson (1972), 4 Ill.App.3d 766, 771, 281 N.E.2d 740, 744.) If any state of facts may reasonably be conceived which would justify the classification, it must be upheld. (People v. McCabe (1971), 49 Ill.2d 388, 275 N.E.2d 407.) A classification must not be arbitrary. It must be based on a rational difference of condition or situation existing in the persons or objects upon which the classification rests. (Begich v. Industrial Com. (1969), 42 Ill.2d 32, 245 N.E.2d 457.) Thus, a zoning classification depends not on whether the parties affected have been unreasonably distinguished, but on whether there is a reasonable basis for the classification made by the statute. (People ex rel. Rusch v. Ladwig (1937), 365 Ill. 574, 7 N.E.2d 313.) It is invidious discrimination and not simply inequality which the equal protection clause protects against. Thillens, Inc. v. Morey (1957), 11 Ill.2d 579, 144 N.E.2d 735.

The rule that the burden of proof is on one asserting the unconstitutionality of an ordinance is apphcable with respect to zoning ordinances. This is because of the presumption of validity that a zoning ordinance is valid and therefore the party chaUenging the classification has the burden of showing its invalidity. (People v. McCabe (1971), 49 Ill.2d 338, 275 N.E.2d 407.) The proof must do more than raise a suspicion of doubt as to the vafidity of a classification. It must make the invalidity clear beyond dispute. (Westfield v. City of Chicago (1963), 26 Ill.2d 526, 187 N.E.2d 208.) Zoning classifications are a legislative function of the municipality and are presumed to be valid. (Elmer Clavey, Inc. v. City of Highland Park (1966), 75 Ill.App.2d 464, 220 N.E.2d 93.) And the presumption of validity of a zoning ordinance may be overcome only by clear and convincing evidence, and this burden is on the party attacking the ordinance. (Reskin v. City of Northlake (1965), 55 Ill.App.2d 184, 204 N.E.2d 600.) Where there are no questions of fact, the ordinance must appear to be arbitrary, unreasonable and confiscatory on its face before the court is justified in striking it down. City of Champaign v. Roseman (1959), 15 Ill.2d 363, 155 N.E.2d 34.

In the present case, the ordinance of the Village of Cahokia is presumed to be valid. Even though the defendants had the burden of proving its invalidity by clear and convincing evidence, they failed to introduce any evidence to support their allegations. There is nothing in the language of the ordinance itself which would support a decision that it was unreasonable, arbitrary or discriminatory.

In analyzing the evidence introduced in Wright v. Michaud (1964), 160 Me. 164, 200 A.2d 543, a case involving the constitutionality of a similar ordinance, the court observed, at 548:

“The stipulation was short. It contained no information with reference to the nature or character of the community, or the zone districts, the trend of growth of the community, the areas of undeveloped property, or any other factual information.”

The court concluded, at 550: “No evidence was presented, and we find nothing in the stipulation filed or in the ordinance itself which would give us reason to find that Section 1803, taken as a part of the entire ordinance, is unreasonable, arbitrary, or discriminatory.”

In applying this reasoning to the present case, we find that there was no evidence introduced to support the determination by the trial court that the ordinance was unreasonable, arbitrary, or discriminatory. Nor can we say on the record presented that the ordinance bears no reasonable relationship to the purposes to be accomplished by the comprehensive zoning plan.

For the foregoing reasons, the decision of the trial court is reversed, and this cause is remanded for action not inconsistent with this opinion.

Reversed and remanded.

JONES and CREBS, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE EBERSPACHER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kascell Jennings, Defendant-Appellant.
    (No. 70-102;
    Fifth District
    April 18, 1973.

      Frederick F. Cohn, Special Consultant to Defender Project, of Chicago, (Edward M. Genson, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a conviction of murder, armed robbery, and unlawful restraint, in the Circuit Court of St. Clair County. Although the jury recommended the death penalty, the court declined to impose it and sentenced defendant Jennings and co-defendant Hyde to terms of 99-100 years. Codefendant Hyde’s conviction was affirmed in People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239.

An extended discussion of the evidence appears in the Hyde opinion and wiU not be repeated herein. However, where facts are essential to the treatment of issues raised on this appeal, they wiU be summarized.

Defendant argues initially that the evidence was insufficient to convict him because of the confusion, uncertainty, and contradiction of the identification witnesses. He also argues that the testimony of his alibi witnesses was more believable than that of the State’s witnesses.

AU of the witnesses who identified the accused were in a good position to observe and did observe defendant under conditions that lend veracity to their observations. They identified defendant in a line-up and at trial. They asserted their positiveness and remained unshaken on cross-examination.

The defendant testified in his own behalf, denied the robbery and shooting, offered an alibi and produced witnesses in its corroboration. Isaiah Marchbanks, a long-time friend of defendant, testified he saw defendant at 1:30 A.M. on the morning of the alleged offense outside a tavern and drove him the three or four blocks to defendant’s home. Defendant’s father and mother testified that they saw their son come home at about 1:30 A.M., that he went to bed, that he did not get up until the next morning. Defendant’s brother testified that the defendant owned a black Chevrolet convertible and that he himself owned a red Chevrolet convertible, which was inoperable on the morning of the alleged offense. James Stringfellow, another acquaintance of defendant, testified defendant owned a black convertible; but, on cross-examination, he admitted that he had tried to fix the defendant’s brother’s red Chevrolet on the day before the occurrence. Clifton Turner, a barber and also a long acquaintance of defendant, testified that, on the evening before the occurrence, he had given defendant a trim.

Defendant testified that he had spent the day before the alleged occurrence in a tavern and that, other than the period of time during which he received a haircut, he remained at the tavern. At about 1:30 A.M., he received a ride home from Marchbanks and remained at home until the following day. He denied having seen Hyde on that day and denied any participation in the offense.

Our review of the testimony leads us to the conclusion that the guilt of the defendant was firmly grounded on sufficient evidence and that defendant’s guilt was proven beyond a reasonable doubt. The evidence against defendant is even stronger than that against co-defendant Hyde. The identification evidence was positive and, even though not entirely consistent, it was convincing. The testimony of defendant’s barber was significantly impeached by the testimony of Detective Alonzo Perrin with regard to a prior inconsistent statement. Under these circumstances, that the jury chose to disbelieve defendant and his alibi witnesses is unavailing to defendant as error since it is within the province of the jury to choose whom to believe or disbelieve.

Defendant next argues that prejudicial error occurred when the prosecutor elicited evidence that the deceased victim was married and supporting a family and compounded the error by introducing photographs of the deceased showing some of his children on his lap and by commenting on deceased’s family in final argument. The same argument was made in the Hyde case and we held that, since there was such strong evidence of guilt, the conviction did not result from passion or prejudice. This position is even more tenable with regard to defendant Jennings.

The defendant next argues that reversible error was committed when the State was permitted to impeach defendant’s testimony by bringing to the jury’s attention evidence of defendant’s past convictions. This argument was also made and considered in the Hyde opinion. We reaffirm what we said therein. People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239, at 247-248.

The defendant next argues that prejudicial error occurred when the State knowingly suppressed a police report containing evidence favorable to him. This issue was also discussed at length in the Hyde opinion and dismissed. However, one aspect of the argument is new. The report contains a statement of Benny Walker, a witness whom the defendant notes had stated he “could not identify the gunmen of the armed robbery”. Defendant argues his testimony could have given added weight to the defense. However, as we found significant in our discussion in the Hyde opinion, in response to a motion for a list of witnesses, the State included Walker’s name as a witness.

Defendant next argues that the court erred in failing to instruct the jury as to the essential elements of the offense of murder. This issue was also considered in the Hyde opinion and we found that no prejudicial error had occurred. People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239 at 247.

The defendant next argues that the State failed to prove the corpus delicti for the offense of murder in that there was no evidence to show that the person who was pronounced dead at Firman Desloge Hospital was Paul Walker. However, there was circumstantial evidence to support the jury’s verdict. A number of witnesses testified that they saw the decedent after the defendants had left the area where the offense had taken place, and they described the decedent and the nature of his wound. The decedent’s employer and wife testified that the decedent departed on a trip to the National City stockyards on the afternoon before the alleged incident occurred, and his wife testified she next saw him at Firmin Desloge Hospital and that he was dead. A resident at the hospital testified that a patient was referred from another hospital at about 6:30 A.M. on July 23, with what appeared to be a gunshot wound. He testified about the patient’s physical appearance and the condition of the wound. Finally, he testified that the patient was pronounced dead at 11:35 A.M. and that an autopsy revealed the cause of death to be gunshot wound of the head with laceration of the brain and cerebral edema. When shown photographs of the decedent, the resident was able to testify that the photographs represented a fair likeness of the man he had treated. He also testified that the patient was the only patient he treated with the type of wound he had described. Under the circumstances, there was sufficient evidence from which a jury could find that the individual who was shot at the scene of the occurrence was Paul Walker.

The defendant next argues that his trial attorney was incompetent and that he did not adequately represent the defendant. He points to his counsel’s reminding the State’s Attorney to introduce certain photographs, to the admission of which his counsel then objected; his failure to submit an instruction on the elements of murder; his failure to object to prejudicial remarks during the closing argument; and his failure to object to immaterial evidence. As we noted in People v. Hyde, 1 Ill.App. 3d 381, 275 N.E.2d 239, at 249, “most of the alleged errors were not errors and as to the remainder it cannot be said that there was any failure or shortcoming upon the part of the attorney”. This statement applies to the present case as well. The defense vigorously cross-examined the State’s witnesses and thoroughly presented the defendant’s witnesses.

The defendant has failed to show either that his counsel was incompetent, as reflected by his manner of carrying out his duties as a trial attorney or that substantial prejudice resulted therefrom, without which the outcome would probably have been different. People v. George, 38 Ill.2d 165, 230 N.E.2d 851.

The defendant next argues that the trial court erred in refusing to allow the defense to recall Clifton Turner, the defendant’s barber, to testify that he had received three telephone calls, the most recent call being received the evening before his testimony was offered. The caller allegedly had wanted Turner to change his testimony about when he had cut defendant’s hair. When questioned by defendant’s counsel, the following dialogue occurred:

“Q. You don’t know who the voice was?

A. No.

Q. You are not making any inference that the State’s Attorney offered you money to testify?

A. I don’t know who it was. He [State’s Attorney] said he called the house and the voice sounded the same.”

The trial court ruled that the testimony was not relevant and had no bearing on the issue.

The defendant argues that the testimony was relevant in that the State’s alleged attempt to coerce Turner to change his testimony indicated that the State believed its case was weak or unfounded. This reasoning, however, assumes that the caller was a representative of the State, more particularly the State’s Attorney. In People v. Nichols, 378 Ill. 487, 38 N.E.2d 766, the Court emphasized that:

“The rule is that telephone conversations, the substance of which are relevant and material to the issues, are competent provided the identity of the person with whom the conversation was had is established by direct evidence or facts and circumstances.”

In that case, the Court reviewed the evidence and determined that there was sufficient evidence of the identity of the caHer. In People v. Turner, 82 Ill.App.2d 10, 226 N.E.2d 667, the trial court excluded evidence telephone caHs which would have supported the accused’s defense of self-defense. The appellate court affirmed the court’s exclusion because the “witness was unable to lay a proper foundation for these caHs”. The court noted, at 672, that the recipient of the caHs did not know their names or who they were. Applying the reasoning of these cases to the present case, the defendant faded to show the identity of the caller. On examination by defense counsel, Turner admitted he didn’t know who had called him. Under these circumstances, the trial court properly excluded the testimony.

Defendant next argues that the trial judge’s failure to instruct the jury that testimony used for impeachment purposes could not be used as substantive evidence was prejudicial error. Defendant has cited several cases where the absence of such an instruction contributed to a reversal of the lower court’s decision. But in those cases, it was found by the court that the purpose of the impeachment testimony was not to attack the credibility of the respective witnesses, but rather it was an attempt by the prosecution to introduce unsworn statements made outside the presence of the defendant as testimony of defendants’ participation in the crime. Thus the fact that a limiting instruction was not given was not by itself prejudicial error, but rather its absence simply aggravated the situation.

In People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26, the Court held that the admission of a confession made by a witness charged with the identical crime as that of the defendant could not be used for the purpose of impeachment because it bore directly on the defendant’s guilt or innocence and was likely to have a prejudicial effect on the minds of the jury. The Court further observed that the jury was not adequately instructed as to the limited purpose for which the impeaching evidence could be used. Since the impeachment testimony was so clearly prejudicial, the court noted that the absence of a limiting instruction informing the jury that the testimony was admissible for impeachment purposes only enhanced the possibility that the jury considered the testimony as substantive evidence. In People v. Paradise, 30 Ill.2d 381, 196 N.E.2d 689, the Court held that the length and repetition of the impeachment testimony of an informer, together with the fact that the jury was not instructed as to the limited purpose for which the impeaching testimony could be used, compelled the conclusion that its effect was so prejudicial as to warrant a new trial. In that case tire informer had made a prior out of court statement to the police and others that he had participated in a controlled" sale of narcotics to the defendant. In People v. Dandridge, 30 Ill.2d 209, 256 N.E.2d 676, the Court reversed and remanded the case because it found that the purpose of the impeachment testimony of two witnesses who had been charged and found guilty of the identical offense for which the defendant was being tried was to link defendant’s participation in the crime rather than attack the credibility of the witnesses. The absence of a limiting instruction aggravated the risk that the jury would take the impeaching testimony as evidence of defendant’s guilt. To like effect is People v. Svizzero, 84 Ill.2d 251, 228 N.E.2d 604.

These cases are easily distinguishable from the present case. In each of them the impeachment testimony dealt with admissions or confessions by witnesses which directly implicated the defendants as participants in the crime. In each case, except People v. Paradise, the impeached witnesses had been charged with and found guilty of the identical offense for which the defendant was being tried. In People v. Paradise, the impeached witness was an informer. Unlike our case, it is not clear in any of the cases cited by the defendant whether a limiting instruction was ever requested. Nevertheless, in each case the court felt that a limiting instruction should have been given to offset the prejudicial effect of the prior out of court statements made by the witnesses.

In the instant situation the impeachment testimony did not deal with an admission of guilt by a witness nor did it in any way link the defendant to the crime for which he was being tried. The only purpose the impeaching testimony served was to show that the witness had made a prior inconsistent statement concerning the defendant’s actions in the barber shop. The only similar characteristic connecting our case to the facts in those cases cited by the defendant is that a limiting instruction was not given to the jury concerning the applicability of the impeaching testimony. However, it is clear from the record before us that the purpose of the impeaching testimony was only to attack the credibility of the witness. There is no way in which it could be construed that his prior out of court statement could link defendant to the crime. For that reason we are dealing only with the situation where a limiting instruction was not given to advise the jury of its purpose. It is well settled that the court, only upon request, is required to instruct the jury of the purpose for which prior statements of witnesses were admitted. People v. Newman, 30 Ill.2d 419, 197 N.E.2d 12. See also, People v. Franklin, 74 Ill.App. 392, 220 N.E.2d 872.

Defendant next argues that the Assistant State’s Attorney committed reversible error when he expressed his own personal belief as to the guilt of the defendant. During closing argument, the Assistant State’s Attorney stated, “We believe beyond a reasonable doubt the guilt of these defendants”, and “This is as cold-blooded a murder as has ever existed as far as we are concerned”.

It is well established that it is permissible for a prosecutor to argue or express his opinion of the guilt of the accused where it is apparent that such opinion is based on the evidence. (People v. Jackson, 35 Ill.2d 162, 171, 220 N.E.2d 229; People v. Robinson, 106 Ill.App.2d 78, 246 N.E.2d 15.) In People v. Hoffman, 399 Ill. 57, 77 N.E.2d 195, cited by defendant, our Supreme Court held it improper for a State’s Attorney to express his own opinion or belief about the defendant’s guilt except as that opinion is based on the evidence. In the present case, the opinion, if it can be so construed, was based upon the evidence, unlike the facts presented in People v. Fuerback, 66 Ill.App.2d 452, 214 N.E.2d 330.

Furthermore, even if the remarks could be viewed as improper, the defendant has failed to show that the verdict would have been different had the comments not been made. People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d; People v. Acker, 127 Ill.App.2d 283, 262 N.E.2d 247.

The defendant next argues that the indictment charging murder was defective in that it alleged “intent to kiH”, which defendant argues does not enter into the definition of murder, and in that it failed to allege “knowledge”, which is an element of the crime. The defendant refies on authorities taken entirely out of context. The indictment charged that defendant, “with intent to kiH Paul Walker, shot and lolled the said Paul Walker with a gun without legal justification”. The indictment contains the language of Ill. Rev. Stat. Ch. 38, sec. 9—1(a)(1) and is fully descriptive of the offense. It advised the defendant with reasonable certainty of the precise offense charged, including its essential elements, and adequately notified defendant of the nature and cause of accusation against him. People v. Shannon, 94 Ill.App.2d 110, 236 N.E.2d 369.

The defendant finaUy argues that, since all counts of which defendant was found guilty were based upon the same conduct, the imposition of more than one sentence was improper and also that the sentence should be reduced.

The jury found defendant guilty of murder, unlawful restraint and three counts of armed robbery. In the sentencing proceeding, the court stated: “The Court sentences you to the penitentiary and fixes your minimum years at 99 years and your maximum at 100 years. Mittimus to issue * * *. The same sentence will apply to all three counts and wiU run concurrently”. The Court’s order provides: “Defendants are hereby sentenced to a term of indeterminate years * * * and [the court] fixes the minimum number of years at 99 years and the maximum number of years at 100 years”. The mittimus refers only to the crime of murder and specifies a term of not less than 99 years, nor more than 100 years. Under the circumstances, it appears that no more than one sentence was imposed and, therefore, defendant’s argument is not appropriate.

Unlike the appeal of co-defendant Hyde, this appeal is being concluded after the effective date of the Uniform Code of Corrections. (Ch. 38, sec. 1001—1—1, Ill. Rev. Stat.) See People v. Shadowens, 10 Ill.App.3d 450, and People v. Hendrickson, No. 72-76, both filed March 1973.

We do not consider a sentence of 99 to 100 years an indeterminate sentence, nor one which is envisioned by either the general tenor of the Code, and particularly sec. 1003 — 3—3 thereof into which Ch. 23, sec. 2519, Ill. Rev. Stat. 1969, was incorporated. Both the old and new provisions were designed to give parole authorities an opportunity to appraise and give effect to the possibility of rehabilitation.

This record contains sufficient information concerning defendant’s past record and the nature of circumstances of the offense that we need not remand for modification of the sentence. Accordingly we reduce the minimum sentence to 20 years, and as so modified affirm.

Judgment affirmed as modified.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Garrett, Defendant-Appellant.
    (No. 72-187;
    Fifth District
    April 19, 1973.

      Kenneth L. Jones, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    Peyton Berbling, State’s Attorney, of Cairo, (Ralph J. Mendelsohn, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, Walter Garrett, has appealed from a judgment of conviction entered by the Circuit Court of Alexander County, following a finding of guilty by jury of the offenses of battery and aggravated battery.

It appears from the record that on the afternoon of January 21, 1971, State Police Officers went to a housing project in Cairo, Illinois, in order to execute search warrants issued by the court. One of the search warrants specified an apartment in which the defendant and another person resided.

Approximately 45 law enforcement officers were involved in the operation, some of which were assigned an active part and others of which were there on a standby basis. As the law enforcement officers were in the process of executing the search warrants, a melee broke out which resulted in injuries to several law enforcement officers and residents and occupants of the housing project. As the altercation was in progress the defendant arrived at the scene, entered into the struggle, and allegedly struck two of the State Troopers, the first (Trooper Goforth) in the side of the head on the left cheek, with hands and fists, and the second (Trooper Gossett) in the back of the head.

Indictments were subsequently returned by the grand jury of Alexander County, charging the defendant with two counts of battery and two counts of aggravated battery, aggravated by reason that the defendant was alleged to have known that the individuals were peace officers engaged in the execution of their official duties. Ill. Rev. Stat., ch. 38, sec. 12—4(b)(6).

The defendant has raised three issues in his appeal: (1) Whether the 1 State failed to prove the defendant guilty beyond a reasonable doubt; (2) Whether the defendant was denied a fair trial; and (3) Whether the sentence was excessive. The issues shall be disposed of in the order presented by the defendant.

In regard to the first issue the defendant has laboriously compared the testimony of all the witnesses, prosecution as well as defense, which reveals numerous discrepancies and versions as to the occurrence. The defendant has also challenged the sufficiency of the evidence as to the bodily harm inflicted upon either officer, particularly in light of the fact that the testimony of the victims and their attending physicians pertained to subjective as well as objective symptoms. There was evidence of defendant striking the officers as charged.

As to each of these contentions we are inclined to hold that there are questions of fact to be resolved by the tiler of fact. It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of the disputed evidence or the credibility of witnesses for that of the tiler of fact who heard the evidence presented and observed the demeanor of the witnesses. (People v. Mills, 40 Ill.2d 4; People v. Orlando, 380 Ill. 107, cert. den., 317 U.S. 694.) We will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt. (People v. Ashley, 18 Ill.2d 272, cert. den., 363 U.S. 815.) We do not find the evidence in this case to be so improbable as to raise a doubt as to the defendant’s guilt. In regard to the injuries sustained by the police officers, there is no requirement that they received great bodily harm. It is sufficient that only bodily harm was inflicted. (People v. Spears, 106 Ill.App.2d 430, 245 N.E.2d 544.) The next contention as to the first issue raised by the defendant is that he was entitled to a specific instruction as to self-defense. We note that all instructions as to self-defense submitted by the defendant were given by the court. The defendant will not be heard to complain at this juncture of such an insufficiency.

The defendant raised two points as to his second contention that he was denied a fair trial. The first point, as we understand it, is that the State’s witnesses were allowed to testify over objection that they were on the premises for the purpose of serving warrants which the defendant contends is a legal conclusion about the ultimate fact that they were engaged in executing some official duty. Assuming, without deciding, that this allegation is meritorious, we note that the defendant during the State’s case, on cross-examination, offered into evidence one of the warrants in question. The further fact that this particular warrant was marked “not executed, no property found” is also of little merit. Failure to comply with statutory requirements concerning the steps to be taken after a warrant has been served does not render the search warrant void. People v. York, 29 Ill.2d 68, 193 N.E.2d 773; People v. Foster, 72 Ill.App.2d 337, 219 N.E.2d 683.

The second point to the defendant’s second issue concerns photographic films. It appears from the record that the defendant filed a pretrial motion to produce physical evidence relevant and material to the case, and that the State had responded that there was no such physical evidence. During cross-examination of one of the State’s witnesses it was revealed that video tape personnel from a local television station were present at the occurrence. When it became apparent that the television film was still in existence, the court directed that it be brought to court. They were shown in camera. The court then ordered a recess in order for the defendant to determine if the films had any use for cross-examination purposes, and further granted a continuance from one o’clock P.M. until the following morning in order that the defendant determine if he would use the film for his defense.

At the close of the State’s case the defendant requested that he be afforded the opportunity to further cross-examine the first three State witnesses as to matters contained in the film. The court ruled that the defendant would not be allowed to re-cross-examine previous witnesses finding that the films did not portray the defendant and added nothing new that could be brought out on cross-examination considering the scope of the direct examination. The defendant alleges that the court erred in this regard.

The court is given considerable discretionary latitude in the orderly procedure of a trial, and the exercise of that discretion should not be disturbed unless a clear abuse is shown. Under the circumstances reflected in this case we do not see that the court abused that discretion nor that defendant was prejudiced by the court’s action. If the defendant considered the films relevant to his defense he had ample opportunity to introduce them as part of his evidence. He did not choose to do so.

The defendant’s allegations of prejudice resulting from the names of other individuals in the indictments and warrants is without merit.

The third issue raged by the defendant is that the sentence was excessive. The briefs advise that the sentence imposed by the court was a fine of $200 and two years probation. Neither the judgment of the court imposing a fine nor an order of probation are included in the record, nor in those parts of the docket entries included. The notice of appeal states the sentence to be “Probation for two years, a $200 fine plus Court Costs”. As a result we are unable to determine whether the fine was or was not imposed as a condition of the probation. We note that under the provision of the Uniform Code of Corrections, sec. 1005 — 6—3 a fine as a condition of probation may be imposed and that the period of probation does not violate sec. 1005 — 6—2 of the Code. By sec. 1005 — 9—1 of the Code a fine may be imposed in addition to probation. We are unable to say from this record that either the fine or the length of the probationary period are excessive, and find no reason to disturb the sentence imposed.

For the foregoing reasons the judgment of the Circuit Court of Alexander County shall be affirmed.

Judgment affirmed.

JONES and G. MORAN, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Lee Hudson, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. Robert W. Hale et al., Defendants-Appellants.
    (No. 72-182;
    Fifth District
    April 25, 1973.
    Kenneth L. Jones, of Defender Project, of Chicago, (Robert E. Farrell, of counsel,) for appellants.

      William J. Scott, Attorney General, of Chicago, (James B. Zagel and Raymond McKoski, Assistant Attorneys General, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The cases involving Robert Wayne Hale and Raymond HoIIgarth were consolidated with the case involving Richard Lee Hudson because they all raise the same point on appeal. Defendant Hudson pleaded guilty to aggravated battery in the Circuit Court of Randolph County and was sentenced to the penitentiary for a term of not less than one nor more than two years. Because the crime was committed while defendant was already confined to the penitentiary, serving a term of 25 to 30 years for murder, his sentence was ordered to run consecutively to his murder sentence in compliance with the Penitentiaries Act then in force. (111. Rev. Stat., ch. 108, sec. 118.) Defendants Hale and HoIIgarth were charged with the offense of escape from the penitentiary and each plead guilty to the charge in the Circuit Court of Randolph County. Upon the recommendation of the State, Hale received a sentence of one to two years to commence at the expiration of the sentence he was currently serving. HoIIgarth also received a sentence of one to two years as recommended by the State to commence at the expiration of the sentence he was currently serving. On this appeal each defendant contends that the Act requiring the imposition of consecutive sentences has been rendered unconstitutional by Article I, Section II, of the Illinois Constitution (1970).

The statute in force at the time of sentencing provides as follows:

“When a crime is committed within any division or part of the penitentiary system by any person therein * * * (and that person is convicted of such crime) * * * the sentence of said convict shall not commence to run until the expiration of the sentence under which he is then held in confinement 8 * Ill. Rev. Stat., ch. 108, sec. 118.

The new statute (ch. 38, par. 1005 — 8—4(f) and (g)) also provides that sentences for crimes committed while confined and for escape or attempted escape shall not commence until the expiration of the term under which the offender is being held.

The pertinent portion of the Illinois Constitution provides that:

“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship # Art. I, Sec. II, Illinois Constitution (1970).

It is defendants’ position that the statute is unconstitutional in that it makes a consecutive sentence mandatory and denies the court any discretion contrary to the above provision, which defendants interpret as a demand that no penalty be imposed until the trial court has evaluated the seriousness of the offense and the possibility of rehabilitation of the offender.

Defendants have cited no precedent in support of their proposition other than to reiterate the generally accepted theory that one of the prime purposes of modern day penology should be the rehabilitation of the offender. The position of the defendants is that we consider only this one provision of the new Illinois Constitution and ignore the remainder of the provisions in regard to sentencing.

The new Constitution does not require the abolition of consecutive sentences. To do so would be to tie the hands of the courts and the legislature and render them powerless to impose punishment upon one who commits a crime which incarcerated. Without a consecutive sentence then, except in unusual cases such as where the prisoner has only a short time remaining on the sentence under which he is confined, the court could not really punish him. Thus, we find that Ill. Rev. Stat., ch. 38, par. 1005—8—4(f) and (g) is constitutional.

Each of these defendants received a consecutive sentence of one to two years. The new Unified Code of Correction requires that the sentences be consecutive and makes the minimum term one year.

The judgments of the Circuit Court of Randolph County are affirmed.

Affirmed.

EBERSPACHER, P. J., and MORAN, J., concur.


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

text:
    Gordon Reynolds, Plaintiff-Appellee, v. Pamela Reynolds, Defendant-Appellant.
    (No. 72-241;
    Fifth District
    April 25, 1973.
    G. MORAN, J., dissenting in part.

      Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellant.
    Robert Lee Broverman, of Shelbyville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiff obtained a default divorce in the Circuit Court of Shelby County on April 11, 1972.

On April 12, 1972 defendant filed a petition to vacate judgment with leave to plead. On April 18, 1972 defendant filed an Amended Motion to Set Aside the Decree for Divorce and supporting affidavit. Plaintiff filed an answer and a counter-affidavit denying the allegations in defendant’s affidavit.

On the basis of the pleadings and the affidavits, the trial court denied the motion to set aside the decree for divorce. This appeal is from the denial of the motion.

Since the affidavit of defendant alleged some specific facts which, if true, would require setting aside of the decree, it was error to deny the motion without a hearing.

The cause is remanded for the trial court to conduct a hearing to determine whether or not the material allegations set forth in defendant’s affidavit are true. Since this case involves the welfare of minor children, at such hearing any reasonable doubt should be resolved in favor of a hearing on the merits.

Reversed and remanded.

EBERSPACHER, P., J., concurs.

Mr. JUSTICE GEORGE J. MORAN

dissenting in part:

I believe that this case should be reversed and remanded for a hearing on the merits rather than for a hearing to determine whether or not the material allegations set forth in defendant’s affidavits are true.

It is undisputed that the default divorce decree in this case was taken against the defendant on April 11, 1972, and that she filed a petition to vacate it the next day. Her petition and affidavit stated many reasons why the default should be set aside, including the statement that she talked with the plaintiff on April 10, 1972, and he told her that he could not be in court at the hearing which was set for April 12, 1972, because he had to return to Georgia on that date.

In his counteraffidavit, the plaintiff admitted that he talked to the defendant at about 6:30 P.M. on April 10, 1972 “to advise her that he could not be in court for the hearing set for April 12, 1972 because he had to return to Georgia. The undersigned states that the only conversation was with regard to the matter of the non-support petition pending. No discussion was had about the divorce case that was pending.” It is undisputed, then, that plaintiff did talk to his wife on the day before the divorce was taken and did advise her that he could not be in court for the hearing set for April 12, 1972. It is also undisputed that he never told his wife at this time of his intention to take a default divorce on the next day. In my opinion, this would establish constructive fraud on plaintiff’s part without question.

The decree gave plaintiff complete custody of two minor children of die parties and found that another child born to the defendant on the 26th day of October, 1971, was bom out of wedlock. The trial court did vacate this latter finding after the defendant filed her motion to vacate.

Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, held that the determinative factor in awarding custody of a minor child is the best interest of the child. “The guiding star is and must be, at all times, the best interest of the child.” The court went on to say that it is usual in cases when a child is of tender age to entrust the care and custody in the mother.

Here there was no adversary proceeding to determine whether it was for the best interest of the children to be with their father or their mother. The courts have always held that the state has an interest in the marriage relationship and this is particularly true when the interests of children are involved.

In McLeod v. McLeod, 133 Ill.App.2d 111, 272 N.E.2d 834, the court said:

“The rights of these parties are readily determined by applicable authority. The verified petition to vacate the decree of divorce was filed ten days after the entry of the decree. This in itself is evidence of diligence. The petition set forth a meritorious defense. However, since the motion was made within thirty days after the entry of the decree, the court had full power to vacate the default merely on a showing of ‘good cause’. I.R.S. ch. 110, sec. 50(5). [Citations.] It was an abuse of discretion for the trial court to deny the motion to vacate the default decree. It is basic justice that every litigant is entitled to his day in court. The decree should be reversed and the cause remanded for further proceedings’’ (Emphasis added.)

See also Younkins v. Younldns, 121 Ill.App.2d 416, 257 N.E.2d 521.

In Widicus v. Southwestern Elec. Cooperative, 26 Ill.App.2d 102, the court said at 107 and 109:

“* * * History will reveal that the court of Illinois have been liberal in setting aside defaults entered at the same term, and that where there has been no trial on the merits, the courts’ discretion is usually exercised in favor of granting the motion
# # #
The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

This case was quoted with approval in People ex rel. Reid v. Adkins, 48 Ill.2d 402.

In a divorce proceeding the courts are keenly concerned in an informed judgment as to the custody of children. This is impossible without an adversaiy proceeding. Therefore, the defendant and her children should have their day in court.

I would reverse and remand for a hearing on the merits.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Oliver, Defendant-Appellant.
    (No. 71-207;
    Third District
    May 9, 1973.

      John L. Barton, of Marseilles, for appellant.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Rock Island County entered following a verdict of guilt of Aggravated Battery as to defendant William Oliver, pursuant to which he was sentenced to a term of not less than 1 nor more than 3 years.

The indictment against defendant William Oliver charged him in three counts with the commission of the crimes of Attempted Murder, Aggravated Battery with a Deadly Weapon, and Aggravated Battery Causing Great Bodily Harm. One count was dismissed and defendant was tried before a jury on the counts charging Attempted Murder and Aggravated Battery Causing Great Bodily Harm. The jury found him not guilty of the charge of Attempted Murder but did find him guilty of the Aggravated Battery charge. On appeal in this court, defendant contends that there was insufficient evidence to find him guilty beyond a reasonable doubt and that he was acting in self-defense. He also complains that certain allegedly improper and prejudicial statements arising from the closing argument of the Assistant State’s Attorney, certain hearsay evidence and the admission of a certain incriminating statement by defendant, operated to deprive defendant of his right to a fair trial.

From the record, it is noted that on the evening of March 21, 1971, defendant William Oliver entered Betty & Burlin’s Tavern in Rock Island with a companion, R. D. Robinson. In addition to the owners, Betty and Burlin Morrison, a number of people were in the tavern, including two off-duty police officers in civilian clothes, James Hartman and James Barton. Hartmans wife, Linda, and Bartons girlfriend, Lois Sabol, a Gene Swanson and his wife, Martha, Donald DeFrieze, Sr., and his son, Don Jr., Ralph Woeckner, an auxiliary policeman, and his wife, and four deaf mutes, including one named Clay Mick, were in the tavern.

Betty was working behind the bar with her husband Burlin. She noticed that defendant arrived with Robinson at approximately 9:30 P.M. She recognized both men as former patrons. She said that while they did not appear to be intoxicated, it was evident that they had been drinking. Both Robinson and defendant had met approximately 10% hours earlier in another tavern and had spent the rest of the day drinking beer in two taverns before they arrived at Betty & Burlin’s.

They sat at the north end of the bar near the jukebox and ordered some peanuts but nothing to drink according to the owner. Defendant and Robinson claimed they ordered and received two beers. The incident under consideration began when defendant left his seat and walked to a bowling machine being used by the deaf mutes. When he saw that the machine was in use, defendant approached Barton who was seated at the bar talking to his girlfriend and tapped him on the shoulder. Defendant asked Barton if he knew who was using the bowling machine. Barton replied that he did not know. Defendant walked away but returned a few minutes later and asked the same question again, and again the defendant was given the same reply. Defendant left for a few minutes but returned for a third time and again asked the same question. This time Barton told him to go back and sit down and leave him alone.

Robinson, who did not hear the conversation, thought that defendant had challenged someone at the pool table to a game to which some “guy” who was way in the back said he would not play pool with a “nigger”, to which defendant replied, “kiss my ass.” Defendant specifically denied the incident. Defendant said that Barton had told him that he was not using the machine and that defendant should go ahead and use it. When he walked back to Robinson, defendant stated, “Well, somebody in here should know who is using the bowling machine.”

At this, Betty, who knew the deaf mutes were using the machine but had not intervened because she knew the defendant also knew who was using it, told defendant to go sit down and be quiet. Defendant said he returned to his seat but did not sit down and proceeded to complain to his companion Robinson. The remarks of defendant did not consist merely of complaints but vulgar and abusive language to Barton which many of the patrons heard. Betty told defendant that if he did not stop using profanity he would be required to leave. Defendant indicated he would not say any more but started in again. After Betty asked defendant 4 or 5 times to stop such language, her husband Burlin walked over to Robinson and asked him to take the defendant outside. Robinson said he got up and told defendant twice to “forget it * * * come on, let’s go * * * let’s get out of here” and even placed his arm around defendant’s shoulder to “calm him down.” Defendant said he didn’t hear Robinson tell him this. Defendant said he wasn’t leaving until he was “good and ready.” Betty then asked Hartman and Barton if they would help her because she knew they were police officers. Both Hartman and Barton proceeded to the end of the bar. Hartman arrived first and Barton then approached from the wet side of the bar. They both testified that Hartman asked defendant to leave and that defendant replied with more profanity. Defendant asked Hartman to identify himself, to which Hartman replied that they were police officers. Defendant indicated that the “guy” who was playing pool (Hartman) came around tire other side of the pool table and said “something” (he couldn’t imagine what) to Robinson to which Robinson replied, “So what?”.

Hartman and Barton testified that when Barton started to reach for his identification, defendant took a swing at him. Although no one but Hartman and Barton heard Barton or Hartman identify themselves as police officers, several witnesses for the People testified that defendant took the first swing. Barton blocked the punch and defendant fell to the floor. Barton was then grabbed by Robinson and then Hartman sought to aid Barton and grabbed defendant and pushed him back against the wall, in an attempt to break up the scuffle. Robinson and defendant contended that the scuffle began when Robinson got hit with a pool stick from an unknown source. Defendant claimed, however, that Hartman hit Robinson in the face. He didn’t see what was used if anything because it happened so fast. Robinson claimed that his hand was being held to his back while he was being choked, kicked or beaten. Defendant indicated that while Robinson was being beaten he turned around while still standing at the bar to see who was beating Robinson and was hit by a white man with a pool cue. The other people at the tavern testified that at no time did they see either man being hit with a pool cue. Clay Mick, the deaf mute, who knew both Robinson and the defendant said that he did not see anyone hit the defendant with a pool cue at such time.

Defendant claimed he was able to reach into his pocket, take out his knife, and pull it open with one hand while three men were on top of him. He said that he did not deliberately stab at anyone and that Hartman must have fallen against the knife. This was controverted by three eyewitnesses who observed the actual stabbing of Hartman by defendant. Even Clay Mick, the deaf mute witness for defendant, admitted he saw defendant stab Hartman. The knife was finally removed from defendant’s hand by force.

Evidence of witnesses following the incident and when Robinson and the defendant were subdued, indicated that Hartman’s shirt was soaked with blood and the actual wounds were seen at both the tavern and the hospital, and that defendant and his companion also exhibited evidence of injuries. When defendant and Robinson arrived at the hospital, they were taken to emergency rooms where Robinson refused treatment. Defendant continued to curse and threaten his captors but when informed that the person stabbed had been a policeman, all he could say was “I’m sorry, I’m sorry.” Defendant was hospitalized 3 days as a result of his injuries and Officer Hartman was hospitalized for 8 days.

It was clear from the record that the jury was justified in not believing defendant’s affirmative defense of justifiable use of force ox-self-defense. Persons seeking to avail themselves of the affirmative defense of justifiable use of force must not be the aggressors. (Ill. Rev. Stat. 1971, ch. 38, sec. 7—1, Committee Comments.) It was clear from the evidence that several witnesses saw defendant initiate the confrontation both verbally and physically. Defendant’s injuries were received not as a result of being attacked but in the process of a fight which he himself had initiated. Some of defendant’s injuries were obviously the result of having been pushed onto a plywood board which had nails protruding from it behind the bowling machine. On the basis of the evidence, it is clear that the jury as the trier of the facts, believed the many witnesses for the State who testified as to defendant’s belligerent behavior and also that the witnesses clearly observed him stab Hartman. The verdict rendered by the jury under such conditions would not be disturbed unless it is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. (People v. Norris, 118 Ill.App.2d 406, 254 N.E.2d 304.) The jury heard and saw the witnesses and were in best position to judge credibility of witnesses and observe the demeanor of the witnesses. The evidence presented was credible and substantial and was sufficient to sustain the verdict. There is no basis, therefore, in finding that the verdict of the jury was not supported by evidence which would justify the finding of guilt as returned by the jury.

As to the supplementary issues which were raised by defendant, such points are not properly before this court on review due to the fact that no objection was raised either at the time of trial or in defendant’s post trial motion. We have frequently said that the making of a proper objection at the time of trial is essential in order to preserve for review any contention that errors in admission of evidence occurred. Similarly, such objections should be set forth in the motion for new trial and a failure to do so amounts to a waiver by defendant. (People v. Irwin, 32 Ill.2d 441, 244 N.E.2d 351.) We do not believe it is of value to go into detail as to the nature of objections made other than to observe that the remarks objected to simply corroborated eyewitness testimony by four witnesses to the actual stabbing and even if an objection had been made the admission of the remarks in evidence would have been harmless.

The final point which was made by defendant related to his statement made at the hospital. This did not involve his so-called “Miranda” rights since defendant simply volunteered the statement and the statements were not the result of interrogation of defendant. (People v. Routt, 100 Ill.App.2d 388, 241 N.E.2d 206.) There is nothing in the Miranda precedent which requires that a police officer close his ears to the statements which are made by an accused unless the statements are the product of an in-custody interrogation without the so-called Miranda warning. (People v. Gonzales, 107 Ill.App.2d 44, 245 N.E.2d 791.) It is, therefore, apparent that there is no reversible error in the record and that the judgment of the circuit court of Rock Island County was proper and should be affirmed. Such judgment is, therefore, affirmed.

Affirmed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cecil A. Tomer, Defendant-Appellant.
    (No. 11696;
    Fourth District
    May 9, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    L. Stanton Dotson, State’s Attorney, of Charleston, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

A jury found defendant guilty upon two counts of escape in violation of Ill. Rev. Stat. 1969, ch. 38, par. 31—6(a). A sentence of eight to ten years was imposed. Defendant appeals.

The statute defines the charged offenses in the language:

“A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution shall be imprisoned in the penitentiary from one to ten years.”

In summary, Count II of the indictment charged that defendant had been convicted of a felony and was charged with three other felonies and escaped on December 3, 1970, while being held in the custody of an employee of the County Jail, one Tarter, a deputy sheriff and an assistant to the warden of said jail. Count IV charged that on that date while being held upon charges of the commission of a felony, the defendant intentionally escaped from one Curtis, who was the warden of the county jail and the sheriff of the county.

In brief, the relevant facts are that by some arrangement defendant was taken from the jail by Tarter to visit at the home of defendant’s elderly parents. Tarter authorized defendant to visit in the home for a couple of hours while Tarter waited in the car in front of the home. Defendant requested and was granted permission to extend tire visit for an hour upon the plea that his invalid father was to return from the hospital. Shortly thereafter defendant departed by the back door and fled the county. Some days later he was returned and taken into custody.

It is contended that the evidence is insufficient to convict in that Tarter was a deputy sheriff rather than an “employee of a penal institution” within the language of the cited statute.

In essence, the argument made is that Par. 31 — 6(a) is only applicable where the escape is from the custody of employees who are “jail officers” as defined in Ill. Rev. Stat. 1969, ch. 75, par. 3a. It is urged that under the evidence defendant could only be found guilty of a misdemeanor in the escape from the custody of a peace officer under the provisions of ch. 38, par. 31 — 6(a). Defendant’s argument would create an elaborate semantic structure of public policy upon an hypothesis that “employees” of a penal institution might be unarmed whereas a deputy sheriff or his deputy could shoot the escaping prisoner if necessary. Such hypothesis is strictly without basis in fact or in the statutory history of the offense of escape. It does not appear necessary to examine such in detail. The defendant tendered and the court gave two instructions relevant to the issue, i.e.\

“A person convicted of a felony or charged with the commission of a felony commits the crime of escape who intentionally escapes from the custody of an employee of a penal institution.” and the further instruction:
“When I use the phrase ‘employee of a penal institution’, I mean a person who is regularly and customarily charged in his normal course of duties with the care of prisoners.”

Ill. Rev. Stat. 1969, ch. 75, par. 2, provides that the sheriff shall be the warden of the jail and shall have custody of all prisoners held there. Ch. 125, par. 12, provides that appointed and qualified deputies:

“[M]ay perform any and all duties of the sheriff, in the name of the sheriff, and the acts of such deputies shall be held to be the acts of the sheriff.”

We conclude that it is clear that the custody of prisoners is a part of the “normal course of the duties” of a deputy sheriff.

It is argued that under the evidence, defendant was not physically in custody at the time of the events preceding the escape. It is therefore contended that the court erred in giving an instruction over defendant’s objection in the language:

“When I use the word custody, I mean that the person in custody knows or should know that his freedom of movement is limited to a reasonably certain geographical area.”

It is further contended that the court erred in refusing defendant’s instruction which would limit the statutes of custody to either actual physical confinement or being so surrounded by physical force as to restrain him. Defendant cites United States v. Person, 223 F.Supp. 982, wherein a District Court held that defendant was not guilty of escape when he failed to return to a guidance center upon expiration of a pass. This view was repudiated, however, in McCullough v. United States, 369 F.2d 548.

In Black’s Law Dictionary, it is said of the term “custody”:

“The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession.”

A prisoner is in custody until discharged by law. (State v. Furlong, (RI) 291 A.2d 267.) In People v. Hill, 17 Ill.2d 112, 160 N.E.2d 779, defendant was charged with escape from a county jail. He contended that he was not guilty of escape because he was held in jail upon a defective indictment. The court adopted the language:

“A prisoner in a penal institution under commitment by a court of competent jurisdiction may not defy a guard and run away.”

A prisoner who is free from close confinement and walks away is guilty of escape. People v. Watts, 81 Ill.App.2d 283, 225 N.E.2d 147 and Wallace v. Radovick, 55 Ill.App.2d 264, 204 N.E.2d 835.

We note that Ill. Rev. Stat. 1971, ch. 38, par. 123—7, provides that prisoners who are on parole or released to rehabilitation centers operated by the Department of Corrections is guilty of escape if he “absconds” from the facility.

In the context of the escape statute, power and authority of the officers to assert physical control of the defendant is apparent.

We do not agree that the offense of escape under Count IV, i.e., from the sheriff and warden, Curtis, was not proven because the evidence does not show that there was a “personal custody”. As noted the statute provides that the custody is in the sheriff whether exercised through a deputy or otherwise. It does appear, however, that such conviction comes within the rule stated in People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679; People v. Rossi, 52 Ill.2d 13, 284 N.E.2d 275 and People v. Lerch, 52 Ill.2d 78, 284 N.E.2d 293, in that the acts of the defendant under Count IV were not separately motivated or otherwise separable from the acts in Count II. For such reason the conviction upon Count IV is reversed.

We have determined that the sentences in cases pending on appeal are subject to the provisions of the Code of Corrections, effective January 1, 1973. (People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731 and People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750.) Ill. Rev. Stat., 1972 Supp., ch. 38, par. 31—6(a) makes the charged offense a Class 2 felony. Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1005—8—1(c)(3) provides that as to a Class 2 felony, the minimum sentence shall not be greater than one-third of the maximum. Upon the authority of Supreme Court Rule 615 and at the direction of the Code of Corrections, the minimum sentence is modified and as modified, the minimum sentence shall not be less than three years and four months, and the maximum sentence shall not be more than ten years.

The conviction upon Count IV of the indictment is reversed. With the sentence as modified the conviction upon Count II is affirmed and the cause is remanded to the circuit court with directions to issue an amended mittimus reflecting such modification of sentence.

Reversed in part, affirmed in part, sentence modified, cause remanded with directions.

CRAVEN, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Viar, Defendant-Appellant.
    (No. 11952;
    Fourth District
    May 9, 1973.
    John F. McNichols, of Defender Project, of Springfield, for appellant.
    No appearance for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

We have previously reviewed the conviction of this defendant. (131 Ill.App.2d 983, 268 N.E.2d 872.) The petitioner filed a pro se petition for writ of habeas corpus, counsel was appointed and a petition for post-conviction relief was filed. The State filed a motion to dismiss the petition and that motion was allowed. On this appeal, we consider the single question as to whether or not Supreme Corut Rule 651(c) was followed.

Rule 651(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 651(c)), states:

“s # # -phg record filed in that court shall contain a showing, which may be made by the certificate of petitioners attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petition filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”

Appellant’s brief raised the single issue as to whether or not court-appointed counsel had complied with Supreme Court Rule 651(c) requiring him to examine the record of the petitioner’s trial proceedings in the original suit for constitutional issues and to certify that he had done so. The State filed a motion in this court for leave to supplement the record.

The defendant filed a reply to that motion consenting to its allowance by this court. It was allowed. The required certificate was filed and defense counsel then filed an Anders brief in conformity with Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396, indicating that the issue originally raised is now moot and that there are no issues of merit indicated by a careful and conscientious examination of the record on appeal. We entered a rule on the defendant to file any suggestions that he might have within 60 days. None were filed. It appearing, therefore, that there is no meritorious issue involved in this proceeding, the action of the trial court was proper and its judgment is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE ABRAHAMSON Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Winfrey, Defendant-Appellant.
    (No. 72-75;
    Second District
    April 9, 1973.

      Supplemental opinion upon denial of rehearing June 7, 1973.

      James M. Shellow and James A. Walrath, both of Shellow & Shellow, of Milwaukee, Wisconsin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, Albert Winfrey, was indicted together with a co-defendant, Tommie Lee Saunders, on January 25, 1971 for the offense of rape by the grand jury of Lake County. Winfrey was found guilty of the charge after a jury trial and sentenced to the penitentiary for a term of 5 to 20 years. Saunders pleaded guilty to a reduced charge of aggravated battery and testified against Winfrey at the trial. On appeal, Winfrey contends that (1) the trial court committed reversible error when it failed to grant his request for the services of an expert witness at State expense; (2) he was denied due process of law and his constitutional right to a fair trial by the one-on-one confrontation with the alleged victim at the police station; and (3) the trial court improperly refused to instruct the jury on the suggestiveness of the identification procedure employed by the prosecution.

On the day of trial, after a jury had been drawn but before the trial itself commenced, the defendant made an oral motion to have the court appoint an expert witness to make an analysis of his seminal fluid and compare it with the semen extracts taken from the clothing of the complaining witness. The court questioned the timeliness of the motion and denied it for, as it stated, “various reasons.”

The defendant maintains that a comparison of seminal extracts was crucial to his defense since a determination that the extracts found on the victim’s clothing was not of the same blood grouping as his own would have cast considerable doubt on his participation in the crime. For that reason, he contends that the denial by the trial court of his request for a court-appointed chemist to make such an analysis and comparison was a deprivation of his constitutional rights. In the case of the People v. Watson, 36 Ill.2d 228, 234, 221 N.E.2d 645, our Supreme Court held that an indigent defendant was entitled to funds to hire an expert witness where the expert testimony is deemed crucial to a proper defense. In that case the defendant was charged with the offense of forgery in that he attempted to cash a stolen check. Prior to trial the defendant, through his court-appointed attorney, filed a motion requesting the court to provide him with funds, because of his indigency, to hire a questioned document examiner. The trial court denied the motion and the defendant was ultimately found guilty. The Supreme Court stated that the opinion of a hand-writing expert may have been crucial to the defense since a similar check had been cashed after the accused was in custody and a comparison of the signatures on the two checks and with the signature of the defendant could well have established his innocence in the eyes of the jury. For that reason, the court found that the denial of his motion denied the defendant his constitutional right to a fair trial and his right to have process to compel the attendance of witnesses on his behalf. The court held that “8 8 8 under the facts presented in this case 8 8 8” the defendant was entitled to a reasonable fee to hire an expert witness.

The most obvious, and the most critical, distinction between the Watson case and the instant one is on the question of indigency. In Watson, the indigency of the defendant was beyond question. Here, the only mention of the defendant’s financial status in the record is the statement of the defendant’s trial counsel that Winfrey’s parents had assumed the costs of his defense (Winfrey was 18 years old at the time of trial) and that they had “indicated” that they would pay for an expert but had failed to do so. The record also shows that Winfrey had put up a $750 bond (of which $250 was refunded before trial); employed private trial counsel; posted a $5,000.00 cash appellate bond within one month after bond was set; and retained new counsel to represent him in this appeal. At no time was the issue of Winfrey’s “indigency” presented to the trial court other than the last minute request for the appointment of an unspecified “expert”.

We are aware of the many cases carefully safeguarding the constitutional rights of indigent defendants and that the issue of indigency “* * * is a delicate matter and must be delicately decided, always with an eye toward protection of the rights of the accused from any possible impairment”. (People v. Cole, 97 Ill.App.2d 22, 25, 239 N.E.2d 455, 457; People v. Rebenstorf, 37 Ill.2d 572, 575, 229 N.E.2d 483.) Although most of the many cases cited by the defendant relate to an indigent’s right to legal counsel, there are cases, such as Watson, holding that, in appropriate circumstances, an indigent accused is also entitled to the services of an expert witness at the expense of the state.

We are convinced, nonetheless, that the denial of the defendant’s request in this case was entirely proper. The defendant made no offer of proof of his alleged indigency and, indeed, trial counsel, privately retained, represented that his parents had agreed to pay the expenses of his defense. The record itself would support the opposite conclusion, i.e., that the defendant was not indigent. In addition, we agree with the trial court that the request for appointment of an expert was untimely. The defendant was informed approximately two months before trial that the State had evidence of seminal stains on the clothing of the prosecuting witness. It is difficult to disagree with the contention of the State that the last minute request was essentially a request for a continuance that was properly denied.

The defendant filed a motion to suppress and exclude all identification testimony relating to the stationhouse identification made by the prosecuting witness and to exclude any in-court identification by her. That motion was denied after a pretrial hearing and the defendant was identified as her assailant by the witness at the trial.

The police contacted the prosecuting witness 4 days after the rape incident and asked that she come to the station to view some suspects. When she arrived at the station she was taken to a room in the detective bureau where she confronted Saunders and identified him to an Officer McMahon as one of her assailants. There is some confusion as to what happened next. The prosecutrix stated that she was then informed that there was another suspect and was asked to remain at the station for a possible identification. Officer McMahon denied that he informed her that there was a second suspect to be identified. In any event, the prosecutrix and her husband waited in a hallway of the bureau after she had identified Saunders. Officer McMahon then came around a corner with the defendant and the prosecutrix turned to her husband and stated that Winfrey was the other man who had assaulted her. The defendant contends that the confrontation was not accidental, as alleged by the police, but was deliberately arranged to suggest to the prosecutrix the identity of her assailant. He further maintains that the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.

The procedure described as “one-on-one” or “show-up” identification where suspects are shown alone has been universally criticized as unreliable and widely condemned. (People v. Sanders, 4 Ill.App.3d 494, 280 N.E.2d 269, 272; People v. Gardner, 35 Ill.2d 564, 572.) It has been the law in Illinois since the case of the People v. Blumenshine, 42 Ill.2d 508, 513, 250 N.E.2d 152, that identification evidence is inadmissible if it can be proven that the pretrial confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused has been denied due process of law. It was recognized in Blumenshine that an improper pretrial identification proceeding would not render an in-trial identification inadmissible, however, if the record would indicate to an “informed judgment” that the identification was based on an observation that was independent of and uninfluenced by the improper procedure. Accordingly, a number of subsequent cases have held that an in-court identification may be admissible, even when the pre-trial confrontation and identification procedure was not proper, if it is shown by clear and convincing evidence that the courtroom identification had an independent origin arising from an earlier uninfluenced observation of the accused. People v. Patrick, 53 Ill.2d 201, 206, 290 N.E.2d 227; People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378; People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330; People v. Martin, 47 Ill.2d 311, 265 N.E.2d 685.

Although the testimony of the prosecutrix varied in some details at the Mai from her testimony a month earlier at the pretrial hearing on the defendant’s motion to suppress, it was consistent as to the essential facts. She testified that she was approached by the defendant at approximately 10:30 P.M. on October 23, 1970, as she walked down a sidewalk. Winfrey walked with her for several blocks (she said % block at the preMal hearing) and she had good occasion to view him as they conversed since the street was well lighted. Saunders then joined them and she also talked to and walked with him. She was then grabbed by the men and dragged into the bushes where first Winfrey, then Saunders, and then Winfrey again, had intercourse with her while she was on her back. She stated she was with Winfrey for a period of 15 minutes and had a good look at his face for at least 5 minutes during the encounter.

Although the prosecutrix made no mention of her assailant’s facial characteristics, clothing, age or weight, her courtroom identification was positive. It has been held that precise description is not necessary where identification is positive. People v. Miller, 30 Ill.2d 110, 113.

It is clear that the courtroom identification of the defendant by the prosecutrix was based, not on their momentary confrontation in the police station, but on her observation of him on October 23. She had ample opportunity to view him during that encounter including, obviously, a close look at his face during the two acts of intercourse. Under these circumstances, we are satisfied that the courtroom identification was based on an observation of independent origin and not on any improper pretrial confrontation.

Finally, the defendant argues that the trial court erred when it failed to instruct the jury that the suggestiveness of the police identification procedure should be considered in considering the weight to be accorded to the victim’s in-court identification. At the instruction conference, the following instruction was tendered by the defense;

“In considering the weight you should accord to the testimony of the sole eyewitness to this crime, you should consider the extent, if any, that the identification procedure employed by the police may have suggested to her that the defendant was the person who committed the offense.”

The instruction was refused by the court as being neither proper or suitable.

The defendant has cited a number of Illinois cases to the effect that an identification instruction is proper. People v. LeMar (1934), 358 Ill. 58, 192 N.E. 703; People v. Ricili (1948), 400 Ill. 309, 79 N.E.2d 509; People v. Moses (1957), 11 Ill.2d 84, 142 N.E.2d 1.

The Illinois Pattern Instructions (IPI Criminal) recommend that no instruction on identification be given on the ground that the subject “* * * is adequately covered by the general instruction on credibility of witnesses.” IPI Criminal, No. 3.15.

The general instruction on credibility of witnesses (IPI Criminal No. 1.02 which was given as People’s Instruction No. 3) provides as follows:

“You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness, you may take into account his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.”

In the case of the People v. Smith, 47 Ill.2d 528, 530, 267 N.E.2d 669, decided in 1971, our Supreme Court upheld the ruling of a trial court that a tendered instruction on identification be refused even though the case was decided before the effective date of Supreme Court Rule 451 (Ill. Rev. Stat. 1969, ch. 110A, sec. 451) approving the use of IPI instructions in criminal cases. The court stated:

“We are of the opinion that the instructions given, particularly those regarding the credibility of witnesses, impeachment through prior inconsistent statement and the State’s burden of proof, adequately placed before the jury the defendant’s theory of defense and that it was therefore unnecessary to submit a specific instruction on the identification issue.”

A similar decision was later rendered by the Supreme Court in the case of the People v. Fox, 48 Ill.2d 239, 269 N.E.2d 720.

We are of the opinion that the trial court properly refused the tendered instruction on identification and that the instructions to the jury, considered as a whole, fully stated the law relative to the respective theories of the defense and the prosecution.

For the reasons stated the judgment of the trial court is affirmed.

Affirmed.

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

SUPPLEMENTAL OPINION

Mr. JUSTICE ABRAHAMSON

delivered the supplemental opinion of the court:

Since the filing of the opinion herein the defendant-appellant has filed a petition for rehearing and application for certificate of importance touching upon defendant’s indigency and the victim’s in-court identification.

The opinion filed goes to great length as to defendant’s indigency and no further comments will be made on that issue.

Regarding the identification of the defendant by the prosecutrix, the opinion sets forth the confrontation at the police station and the in-court identification. There is another factor which further distinguishes this case from most rape cases and that is, as indicated on page 1 of the opinion that the codefendant, Tommie Lee Saunders, testified against the defendant at the trial and described in great detail defendant Winfrey’s actions.

The petition for rehearing and application for certificate of importance is denied.

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