author:
Mr. PRESIDING JUSTICE STAMOS
      Mr. JUSTICE HAYES

text:
    Margaret Baird, Plaintiff-Appellee, v. Daniel W. Senne, Defendant-Appellant—(First Arlington National Bank, Garnishee-Appellee.)
    (No. 57521;
    First District (2nd Division) —
    July 5, 1973.

      Rehearing denied July 26,1973.

    HAYES, J., dissenting.
    Thomas D. Ahern, of Chicago, for appellant.
    Leroy W. Nelson, of Arlington Heights, for appellee Margaret Baird.
    Vincent F. Lucchese, of Chicago, for appellee First Arlington National Bank.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant appeals from an adverse judgment in a garnishment proceeding. He contends that the judgment should be reversed because the funds involved were not properly subject to garnishment and the order appealed from is technically incorrect.

Plaintiff confessed judgment on defendant’s promissory note in the principal amount of $2000. A garnishment suit was instituted against First Arlington National Bank (hereinafter garnishee bank). Summons and garnishment interrogatories were served on the garnishee bank on December 14, 1971. The garnishee bank’s answers to the interrogatories indicated that it had possession, custody or control of defendant’s escrow checking account containing $1716.09. On January 11, 1972 the garnishee bank filed a motion stating that defendant had asserted that the checking account was a trust account not subject to garnishment. Defendant indicated that he would take legal action against the garnishee bank if the money in his account was paid to plaintiff. The bank requested the court to direct it as to whom it should pay the money. The trial court entered an order finding that $167.34 of the money in the account was the property of defendant and, as such, was subject to garnishment. The court also found that the remaining $1548.75 in the account might be subject to a claim that it was being held in trust for Slaton Furs. The court ordered that notice be given to Slaton Furs and continued the hearing to January 21, 1972.

At the January 21 hearing, William H. Slaton appeared and testified that he was the owner of Slaton Furs. He further testified that defendant brought a prospective fur coat buyer to Slaton Furs in December, 1971. The buyer purchased a fur coat and indicated that he desired to present it to his wife as a surprise Christmas gift. To ensure the surprise, the buyer issued a check in the amount of the purchase price of the coat to defendant who in turn issued a check to Slaton Furs which was dated December 9, 1971 and was drawn on his escrow account with the garnishee bank in the amount of $1548.75. Defendant’s check was subsequently dishonored by the garnishee bank on December 16, 1971.

Defendant testified that Mr. Slaton notified him that the check had been dishonored. He borrowed money and used it to pay Slaton for the coat. He had not repaid that loan as of January 21, 1972.

Plaintiff presented no evidence at the hearing.

After hearing the above evidence and the argument of counsel, the trial court entered an order finding that Slaton Furs had no interest in the funds on deposit with the garnishee bank and that such funds were the property of defendant subject to garnishment. The garnishee bank was ordered to pay the money remaining in the account, $1548.75, to plaintiff.

Defendant contends that the proper date to use in resolving conflicting claims to a garnished bank account is the date on which a garnishment summons is served on the garnishee bank. He argues that on the date the summons was served on the garnishee bank in the instant case the funds in his checking account were held in trust by him for Slaton Furs and, therefore, were not subject to garnishment.

The applicable Illinois statute provides:

“(a) To the extent of the amount due upon the judgment and costs, the garnishee shall hold, subject to order of court (1) any non-exempt indebtedness or (2) other non-exempt property in his possession, custody or control (a) belonging to the judgment debtor or (b) in which the judgment debtor has any interest. The judgment or balance due thereon (1) becomes a hen on the indebtedness and other property held by the garnishee at the time of service of garnishment summons and (2) remains a lien thereon pending the garnishment suit.
(b) The garnishee shall file, on or before the return date, or within the further time that the court for cause may allow, a written answer under oath to the interrogatories, setting forth as of the date of service of the garnishment summons (1) any indebtedness due or to become due to the judgment debtor and (2) any other property in his possession, custody or control (a) belonging to the judgment debtor or (b) in which the judgment debtor has an interest.” Ill. Rev. Stat. 1971, ch. 62 par. 39. (Emphasis supplied.)

It has been held that the garnishment statute is to be strictly construed and its application is limited to debts owing at the time the garnishment answer is filed. (National Home, Inc. v. American National Bank & Trust Co., 16 Ill.App.2d 111, 147 N.E.2d 412.) Thus, the question for our decision is whether the funds in defendant’s account on December 14, 1971 belonged to him and were, therefore, subject' to garnishment.

Initially we note that there is no dispute over the court’s finding that $167.34 of the money in defendant’s account was defendant’s property and was subject to garnishment. This appeal concerns only the $1548.75 remaining in the account.

We are not convinced, as defendant argues, that the evidence adduced in the proceedings below was sufficient to establish a trust. However, the uncontradicted evidence does establish that, on the date the garnishment summons was served on the garnishee bank, the funds in question did not belong to defendant, but equitably belonged to éither Slaton Furs or the fur coat buyer depending on whether or not the fur coat had been delivered. Therefore, since the money did not belong to defendant it was not subject to garnishment.

Inasmuch as our resolution of this issue requires a reversal we need not consider defendant’s other contention on appeal.

Accordingly, the judgment is reversed.

Reversed.

DOWNING, J., concurs.

Mr. JUSTICE HAYES

dissenting:

It is clear that IH. Rev. Stat. 1971, ch. 62, sec. 39(b) provides that the date as of which the garnishee is to answer interrogatories is the date of service of the garnishment summons, and sec. 39(a) provides that the judgment of the garnishor becomes a lien on the property of the judgment debtor held by the garnishee as of that same date of service, and remains a hen pending the garnishment suit.

I concur in the holding of the majority that, as of the date of service in this case (14 December 1971), $1548.75 of the total amount of $1716.09, reported by the garnishee bank as standing to the credit of the judgment debtor’s escrow account on that date, constituted funds which did not then belong to defendant-judgment debtor, but equitably belonged either to Slaton Furs or to the fur coat buyer. It follows that that portion of the escrow account was not subject to garnishment as of that date.

I disagree with the majority’s holding that the disposition of this garnishment suit must be frozen as of that date. I agree that, in the usual garnishment case, interrogatories must be frozen as of that date; were it not so, the garnishee would be under the duty of filing amended answers to the date of the garnishment hearing, an impossible burden. I also agree that, in the usual garnishment suit, the lien of the judgment attaches to the property of the judgment debtor held by the garnishee as of that date. My difficulty lies in understanding why, in this case, the normal freezing date may not be extended.

I note in the first place that the garnishment statute expressly provides for the handling of third-party claims. (Ill. Rev. Stat. 1971, ch. 62, sec. 42(a) & (b).) I realize that those provisions must be construed to relate to third-party claims existing as of the date of service of the garnishment summons; claims coming into existence thereafter would clearly be junior to the garnishment lien. But third-party claims in existence at the service date which have ceased to exist as of the date of the garnishment hearing seem to me to present an entirely different matter, at least when the matter is raised in the manner in which it was raised in this case, namely, by the voluntary affirmative action of the garnishee bank itself.

The garnishee bank had been placed “in the middle” to its peril by the notice given to it by its depositor-judgment debtor that tire account which it had reported it was holding for him contained trust funds belonging to a third-party (Slaton Furs), which funds were not subject to the garnishment lien, and by the threat of legal action against the garnishee bank, should it pay over such funds to the garnishor. The motion filed by the garnishee bank on 11 January 1972 on its own initiative is, in effect, a Bill of Interpleader designed to bring the third-party claimant into the garnishment suit so that a complete determination of the rights of the parties might be had for the protection of the garnishee bank. Its one-page appellate brief and “argument” make its position in this case crystal clear.

It is this voluntary motion by garnishee bank itself which, to my mind, distinguishes this case from the usual garnishment case. At the hearing on the motion on the same day on which it was filed, the trial court received evidence from defendant-depositor, listened to arguments by defendant, plaintiff, and garnishee bank, and complied with the provisions of Ill. Rev. Stat. 1971, ch. 62, sec. 42(a) by directing that notice be given to the third-party claimant and by continuing the hearing to afford the claimant the opportunity to appear.

When the garnishment hearing was resumed on 21 January 1972, the third-party (Slaton Furs) was present in the person of the owner (William H. Slaton), who informed the court that he did indeed have a claim in existence on the service date as the equitable owner of funds in the amount of $1548.75, which funds constituted a portion of the funds in the amount of $1716.09 which garnishee had reported it was holding in the escrow account of defendant. He then, however, disclosed that he no longer had such a claim because the claim had been satisfied in the interim by the payment to him of $1548.75 from other funds of defendant.

The trial court was proceeding under the provisions of Ill. Rev. Stat. 1971, ch. 62, sec. 42(b), which directs that the third-party claim “shall be tried and determined with the other issues in the garnishment action”. Under the circumstances of this case, I can see no useful purpose in insisting that the third-party claim be tried and determined as of the service date of the garnishment summons. No inconvenience or unfairness is involved in having the matter tried and determined as of the date of the garnishment hearing; on the contrary, inconvenience and unnecessary circuity of proceedings will result from not doing so.

Defendant’s second contention on appeal goes to the form of the judgment order. Ill. Rev. Stat. 1971, ch. 62, sec. 43(c) provides that “if the finding or verdict is against the garnishee, judgment shall be rendered, or other orders entered, against the garnishee and in favor of the judgment debtor to whom the garnishee is indebted * 6 # for the use of the judgment creditor * * The order in this case was that the garnishee bank pay the sum of $1548.75 being held by the garnishee to the judgment creditor instanter. I would affirm the judgment of the trial court, and remand the case for entry of a proper order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. John D. Lighting, Petitioner-Appellant.
    (No. 58136;
    First District (2nd Division) —
    July 5, 1973.
    James J. Doherty, Public Defender, of Chicago, (Suzanne M. Kohut, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Patricia Bobb, Kenneth L. Gillis, and John B. Adams, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

LEIGHTON, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry White, Defendant-Appellant.
    (No. 58315;
    First District (2nd Division) —
    July 5, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ira Chur gin and Lee T. Hettinger, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Mariann Twist, and Nicholas P. Iavarone, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

STAMOS, P. J., took no part.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Jackson, Defendant-Appellant.
    (Nos. 55217, 55428 cons.;
    First District (3rd Division) —
    July 5, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Mark T. Zubor, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant, Michael Jackson, appeals from a trial court order revoking his probation and sentencing him to the penitentiary for a term of two to ten years. His contentions in this court relate to the propriety of his sentence: the sentence should have been concurrent with those he received for other offenses committed during the period of his probation and the maximum penalty should have been fixed at five years.

Jackson was indicted for the offense of aggravated battery (Ill. Rev. Stat. 1967, ch. 38, par. 12 — 4) in that he committed a battery which caused great bodily harm to Brenda Brumfield. Before accepting his plea of guilty the court admonished him of his right to a trial by jury and the possible punishment. The court stated:

“Now, on your plea of guilty, I could sentence you to the penitentiary for not less than one year nor more than five years. Knowing this, do you still want to plead guilty?”

Jackson answered, “Yes sir.” It was stipulated that the complaining witness would testify that the defendant struck her without justification and fractured her left eye socket. Judgment was entered on the plea and a hearing in aggravation and mitigation was conducted. The court placed Jackson on probation for two years.

Approximately one year later, a rule to show cause why his probation should not be terminated was issued. During the revocation hearing the court was made aware that while on probation Jackson had pleaded guilty to robbery and auto theft and had been sentenced to the penitentiary for a term of one to three years. The judge who had sentenced him was cognizant of the possibility of further punishment being imposed for violation of probation and expressed his concern over a lengthy confinement in the penitentiary, the helpfulness of a period of supervision under parole and the best interest of the defendant. Upon the conelusion of the revocation hearing the court vacated Jackson’s probation and sentenced him for a term of two to ten years; the sentence was not to commence until the expiration of the sentences for theft and robbery.

Jackson’s contention that his sentence should have been concurrent with the penalty imposed upon him in the cases which led to the revocation of his probation is without legal foundation. The observations of the judge who sentenced Jackson for auto theft and robbery were not binding upon the judge who revoked his probation. It is within the court’s discretion to order the imprisonment for one offense to be consecutive to the term of imprisonment for another offense which did not result from the same conduct. (Ill. Rev. Stat. 1967, ch. 38, par. 1 — 7(m); People v. Pearson (1972), 52 Ill.2d 260, 287 N.E.2d 715.) There was a proper basis for imposing a consecutive sentence foHowing the revocation of probation and there was no abuse of discretion in doing so when the defendant was already under sentence for entirely distinct criminal conduct. (People v. Nelson (1962), 26 Ill.2d 337, 186 N.E.2d 362; People v. May (1971), 132 Ill.App.2d 766, 270 N.E.2d 440.) The imposition of the consecutive sentence is affirmed.

Jackson’s second contention is that it was error to sentence him to a term of two to ten years because he was admonished on his guilty plea that the statutory penalty for aggravated battery was one to five years. He urges a reduction of the maximum penalty to the term of the court’s admonishment or, in the alternative, to be allowed to plead anew. Essentially, he contends that he relied upon the court’s statement and that it formed the basis of his guilty plea. The state counters his contention with a three-pronged argument: the aggravated battery statute, as applicable, mandates a one to ten-year sentence; the punishment does not exceed the statutory maximum, and the defendant was not prejudiced by the admonishment because he originally received lenient treatment in the form of probation.

Once there has been a determination that a defendant has violated a condition of probation, a court may imprison him for a term not to exceed the maximum penalty for the offense which resulted in his conviction. (Ill. Rev. Stat. 1967, ch. 38, par. 117 — 3(d); People v. Smith (1969), 105 Ill.App.2d 14, 245 N.E.2d 13.) The disparity between original sentence of probation and the subsequent term in this case does not indicate, nor does the defendant contend, that the court punished him for the crimes he committed while he was on probation. Thus, the sentence imposed would ordinarily be considered to be proper.

The statute under which Jackson was indicted delineates three types of conduct as aggravated battery: (a) batteries causing great bodily harm; (b) batteries committed while using a deadly weapon, or while the perpetrator is masked or otherwise conceals his identity, or batteries against individuals acting in certain capacities, and (c) batteries committed by administering intoxicating, narcotic or poisonous substances. (Ill. Rev. Stat. 1967, ch. 38, par. 12 — 4.) The permissible sentence for an offense within the first category is from one to ten years; offenses arising under the subsections (b) and (c) are punishable by sentences from one to five years. The conduct which formed the basis of Jacksons indictment was in the first category for which the lengthier imprisonment is prescribed. Jackson, therefore, was misinformed and could have been misled when the court told him on his plea of guilty that his maximum penalty could be no more than five years.

Knowledge of the consequences is essential to a voluntary plea of guilty. The Code of Criminal Procedure applicable to Jackson’s plea provided that a defendant had to be informed of the consequences of his guilty plea and the maximum penalty. (Ill. Rev. Stat. 1967, ch. 38, sec. 115 — 2(a) (2).) In contrast, the present rule provides that a defendant must also be informed of the minimum sentence and the possible effect on the penalty which may be imposed because of prior convictions or consecutive sentences. (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a) (2).) It is readily apparent that an accused’s knowledge of the consequences is not only a determining factor in the voluntariness of his plea but is often an inducement to a guilty plea,

Justice and fairness demand that if a guilty plea rests on an inaccurate representation as to the maximum penalty the promise implied in the representation should be fulfilled. We, therefore, exercise our power under Ill. Rev. Stat. 1967, ch. 110A, par. 615(b)(4) and reduce the defendant’s maximum sentence to five years.

Affirmed as modified.

McNAMARA and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie B. Campbell, Defendant-Appellant.
    (No. 56367;
    First District (3rd Division) —
    July 5, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Kurt Klein, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

Stanley Harris, Jr., 22 years old, and the defendant-appellant, Willie Campbell, 35 years of age, were indicted for the offense of armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2). Both men waived a jury trial and changed their pleas from not guilty to guilty. Harris was sentenced to one to ten years in the penitentiary and Campbell to a term of not less than two nor more than five years.

Campbell presents two issues for review. He contends that the trial court did not properly admonish him before accepting his plea of guilty and unreasonably refused to place him on probation for a term of five years.

He concedes that the court informed him of his right to a trial by jury, the nature of the charge, the minimum and maximum penalty provided by law, the existence of a negotiated plea agreement and the results of that agreement, and that the court determined there was a factual basis for the plea. But he complains that the admonishment did not comply with all the requirements of the rule pertaining to pleas of guilty (Ill. Rev. Stat. 1971, ch. 110A, par. 402); that he was not told if he pleaded guilty he waived the right to a trial of any kind and the right to be confronted with witnesses against him, and he was not asked whether force, threats or promises were used to obtain his plea.

Campbell was well aware of the nature of a jury trial. When he and his attorney appeared before the court for trial he reaffirmed his previously announced intention to waive a jury and, in response to the court’s questions, told the court how many people were in a jury and that the jurors decided whether a defendant was guilty or not guilty. He voluntarily signed a jury waiver and acknowledged his signature. He was informed of the possible consequences of his guilty plea but was told that it was probable because of his negotiated plea that he would receive a two to five-year sentence. He explained twice that he was entering that plea because he was in fact guilty, and he and his counsel stipulated to a summary of the evidence which was presented to the court.

The purpose of Rule 402 is to safeguard the rights of an accused person — to insure that a guilty plea is intelligently, understandingly and voluntarily made. It requires substantial, not literal, compliance with its precepts; its objective is fixed but its application is flexible. The test is whether the record affirmatively discloses that an accused who pleads guilty enters his plea understandingly and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238; North Caroline v. Alford (1970), 400 U.S. 25. Rule 402 was adopted to implement the Boykin decision.) In People v. Mendoza (1971), 48 Ill.2d 371, 270 N.E.2d 30, where the question of complying with the specific requirements of the rule was in issue, the court stated that the fact that the defendant was not specifically admonished by the court, on the record, as to each and every consequence of his plea did not sufficiently demonstrate that he was, in fact, unaware of these consequences. Substantial compliance with Rule 402 has been approved in numerous cases: People v. Krassel (1973), 12 Ill.App.3d 64; People v. Shepard (1973), 10 Ill.App.3d 739, 295 N.E.2d 310; People c. Roebuck (1973), 10 Ill.App.3d 641, 295 N.E.2d 32; People v. Anderson (1973), 10 Ill.App.3d 558, 294 N.E.2d 763; People v. Williams (1972), 9 Ill.App.3d 401, 292 N.E.2d 437; People v. Tennyson (1972), 9 Ill.App.3d 329, 292 N.E.2d 223; People v. Caughlin (1972), 7 Ill.App.3d 389, 287 N.E.2d 499; People v. Reed (1971), 3 Ill.App.3d 293, 278 N.E.2d 524.

Although the court inquired of the co-defendant Harris whether his guilty plea was induced by promises, the court did not ask CampbeU this question or the allied questions whether his plea was induced by force or threats. However, to satisfy the requirement of Rule 402 it is not always necessary to ask the defendant these questions. The rule states that the court shaU determine if a guilty plea is voluntary before accepting it. The colloquy between Campbell and the court gave the court ample grounds for reaching the conclusion that the plea was voluntarily made.

The record establishes that the court carefully admonished Campbell as to all fundamental requisites before accepting his jury waiver and guilty plea. The record also reflects Campbell’s intelligent responses to the inquiries directed to him, his understanding of what was taking place and his eagerness to accept the result of the negotiations which had been conducted by the court, his counsel and the prosecutor. There is no indication in the record, and he does not contend, that his plea was involuntary or that promises, threats, force or other influences were used to secure it. The court substantially complied with the requirements of Rule 402 and its acceptance of the defendant’s plea of guilty as being voluntarily and knowingly made is affirmed.

During the aggravation and mitigation hearing which followed the entry of the judgment, Campbell’s counsel verified the agreement that had been reached with the State’s Attorney for a sentence of two to five years; nevertheless, he requested that the defendant be released on probation for five years with the first year on a work release program. He noted that the propriety of the sentence would be within the court’s discretion. The judge refused the request and sentenced the defendant to a term of two to five years in the penitentiary. The defendant contends that the trial court abused its discretion in not placing him on probation, because the defendant’s record warranted probation and it was denied only because the court had predetermined to do so before the mitigation hearing.

The factual stipulation revealed that Campbell and Harris were the two participants in an armed robbery of a super-market. Campbell took money from a cash register as the cashier stood by under gunpoint, and he then forced the manager into his office where an additional sum was taken from a desk drawer. The robbers escaped with approximately $300. Two police officers responding to a radio message were directed to a second floor of a hotel where they saw the two suspects run into a room. Harris was apprehended in the room where a snub-nosed revolver, a shotgun and the proceeds of the robbery were found. Campbell fled by jumping through the window and he was arrested behind the building. Two hours after the robbery a line-up was held and the manager and the cashier identified Campbell.

In requesting probation despite the negotiated plea, Campbell’s attorney said:

“I do have evidence I could offer in mitigation. However, in my conversation with your Honor yesterday, your Honor said it is impossible where a person commits a robbery with a gun that he does not give probation regardless of the showing made by the defendant.”

Subsequently, the trial judge explained his position to avoid a misunderstanding. He said his feeling was that the statutory penalty for armed robbery was fair and that he looked to the positive and negative aspects of the case. Although Campbell had no prior record, the judge noted that an armed robbery occurred in which there was a potential of serious harm to the victims, to innocent people and the police officers.

The granting of probation is within the discretion of the trial court. It is subject to review to the extent of ascertaining whether the court did in fact exercise discretion or whether it acted in an arbitrary manner. (People v. Saiken (1971), 49 Ill.2d 504, 275 N.E.2d 381; People v. Sims (1965), 32 Ill.2d 591, 208 N.E.2d 569.) Although not considered in reaching our decision, it should be noted that following the instant offense, the legislature forbade probation for armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 1) and altered the indeterminate sentence from a minimum of two years imprisonment to a minimum of five years. Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.

We conclude that the trial court did not act arbitrarily and that it properly denied the request for probation. The sentence was fair and proper consideration was given to the defendant’s prior record, background and offense. The judgment is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lucious Gregg (Impleaded), Defendant-Appellant.
    (No. 56467;
    First District (3rd Division) —
    July 5, 1973.
    James J. Doherty, Public Defender, of Chicago, (Stanley Sacks, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Sharon Grossman, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur Hodges, Defendant-Appellant.
    (No. 57264;
    First District (3rd Division) —
    July 5, 1973.

      Rehearing denied July 27,1973.

    Howard B. Augustus, of Defender Project, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (James S. Veldman and Thomas G. White, of counsel,) for the People.
   PER CURIAM.

McNAMARA, J., took no part.


author: Mr. JUSTICE McGLOON.

text:
    The County of Cook, Plaintiff-Appellee, v. Lloyd A. Fry Roofing Company, Defendant-Appellant.
    (No. 57393;
    First District (3rd Division) —
    July 5, 1973.

      Rehearing denied August 10,1973.

    Burton Y. Weitzenfeld, Arthur L. Klein, and Paul. L. Leeds, all of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Vincent Bentivenga, Louis R. Hegeman, and Donald P. Smith, Assistant State’s Attorneys, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE McGLOON.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mathews Luis, Defendant-Appellant.
    (No. 58470;
    First District (3rd Division) —
    July 5, 1973.
    S. M. Del Principe, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

SCHWARTZ, J., took no part.


author: Mr. JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Jiles Defendant-Appellant.
    (No. 57288;
    First District (5th Division) —
    July 6, 1973.

      Leonard Karlin, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was found guilty of the charges of attempt (armed robbery) by threatening Gerald Kirk with a dangerous weapon (Ill. Rev. Stat. 1969, ch. 38, par. 8 — 4), aggravated battery, in that he committed a battery which caused great bodily harm (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(a)), a second count of aggravated battery, in that he committed a battery causing permanent disfigurement (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(a)), and a third count of aggravated battery, in that he committed a battery while armed with a deadly weapon (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(b—1)). He was sentenced to serve three to seven years for tire offense of attempt (armed robbery), three to seven years for aggravated battery causing great bodily harm, three to seven years for aggravated battery causing permanent disfigurement, and one to three years for aggravated battery while armed with a deadly weapon, all sentences to run concurrently.

On appeal defendant argues that he was denied due process of law because Kirk’s pretrial identifications of him were legally objectionable and that he was not given a fair trial.

On May 14, 1970, at approximately 5:30 P.M., on a sunny afternoon, Gerald Kirk was driving a Jewel Foods truck westward on the Eisenhower Expressway. He heard some noise coming from his truck and he pulled off to the side of the expressway at the California Avenue exit (2800 West). When he stopped, a wheel rolled off his truck. It was too heavy for him to handle and he left to obtain help. He walked up an embankment, climbed a fence separating the expressway from Van Burén Street, and crossed over to the sidewalk on the north side of that street where he noticed four black men standing in front of a building situated close to the sidewalk. He observed that one of the four was eyeing him very intently. Kirk walked past the four men on his way to a gas station and as he reached the corner of Washtenaw and Van Burén he heard a noise behind him. When he turned around a man with a knife in his hand grabbed his arm and asked for money. He was later identified by Kirk as Robert Jiles, the same man who had eyed him earlier. A forty-five second to a minute, face-to-face, struggle followed during which time Kirk’s left ear was cut by the assailant’s knife. Kirk broke loose, and ran westward to a Shell gas station at Sacramento Avenue (3000 West) and Van Burén where he held a towel to his bleeding ear, and telephoned the police and his employer. Two or three minutes later a squad car driven by Sergeant SuHivan arrived, followed closely by officers Ross and Randle in another police vehicle. Kirk drove with Sullivan to look for his assailant and also gave him the following detailed description of his assailant: young, black man, 5'5" tall, 190 pounds, beard, moustache, afro-style haircut, black % length leather type Jacket, green pants and a sort of khaki type shirt. Sullivan radioed this information to Ross and Randle. At the intersection of Washtenaw and Van Burén (where the attack had occurred) Kirk saw a young black man, about % of a block north on Washtenaw getting into a car and told Sullivan, “That’s the man.” This was approximately fifteen minutes after the attack took place. At about the same time Ross and Randle observed the same young man and, because he resembled the person described, they began following the car. The two police vehicles curbed the car and Kirk identified the young man as his assailant. He was placed under arrest by Ross, and when searched a knife was found in one of his pockets.

Kirk was taken to the emergency room of Garfield Park Hospital. At about the same time a paddy wagon, that had been at the scene of the arrest, transported the now handcuffed defendant to the Garfield Park Hospital where he was taken to the emergency room and again identified by Kirk who, at the time, was having his ear stitched. Ultimately, reconstructive surgery, necessitating two operations, was required to repair the damage to Kirk’s ear. After receiving treatment Kirk went to the Fillmore District Police Station accompanied by a Jewel supervisor to sign an arrest slip. At the station he identified, at the request of Detective Thomas, both the knife recovered at the scene of the arrest and defendant who at that time was in a small interrogation room with Sergeant SuHivan and other plain-clothes policemen, but without handcuffs.

Defendant testified that he spent most of that day at his mother’s house, 2618 West Gladys, leaving at approximately 5:55 P.M. He also stated that there was no knife in the interrogation room of the police station when he was viewed by Kirk and that the knife identified in court as the weapon of the assailant wasn’t the same knife taken from him during the search.

Arlene Washington, defendant’s sister, testified that defendant and some friends spent most of the day at 2618 West Gladys and he left at around 5:55 P.M.

OPINION

Defendant first contends that the pretrial identifications at the hospital and police station were so fundamentaUy unfair and conducive to irreparable mistaken identification that he was deprived of due process of law. He argues that these confrontations tainted the identification testimony of Kirk to the extent that his in-court identification should not have been admitted into evidence.

We believe that the hospital and police station identifications were justified under the circumstances, but that regardless of this evidence his identification testimony at trial was admissible on the ground that it had prior independent origin because Kirk had adequate opportunity to observe defendant at the time of commission of the crime. (People v. Cook (1969), 113 Ill.App.2d 231, 252 N.E.2d 29.) Kirk saw defendant on the porch as he passed and had an excellent opportunity to observe him during their forty-five second to a minute, face-to-face struggle, on a sunny afternoon. He also gave a detailed description of his assaüant immediately after the incident which enabled officers Ross and Randle to recognize the defendant, and a positive identification was made by Kirk at the time of defendant’s arrest, about 15 minutes after the incident. We noted nothing in the record to indicate that the police officers in any way improperly induced Kirk to make this identification.

It is weU established that even if suggestiveness and lack of necessity is demonstrated, an in-court identification will still be admitted where there is clear and convincing evidence that it has an independent origin arising from an earlier uninfluenced observation of the defendant. People v. Clark (1972), 8 Ill.App.3d 700, 291 N.E.2d 33.

We conclude that the identification proceedings here were not so conducive to irreparable mistaken identity that defendant was denied due process of law.

Defendant also maintains that on voir dire examination the trial court afforded more latitude to the prosecution than to the defense and so regularly upheld objections of the State and overruled those of the defense to the extent that defendant was prejudiced and deprived of a fair trial. No specific references to particular conduct or rulings were made but we have examined the record and are of the opinion that the interrogation of jurors was fairly conducted and, in particular, that the defense was provided more than a reasonable opportunity for a full and complete interrogation.

Defendant also argues that he was prejudiced by certain faüures of the police to maintain and produce material records, specifically, (1) that the erasure of police radio tapes prevented the defendant from using them to possibly show that the complaining witness had not seen him before his arrest, (2) that a police crime laboratory report, which was negative as to finger prints or blood stains, was not produced at trial, and (3) that the exclusion of certain photographs of the vicinity of the crime prevented the defense from establishing that the attack did not occur where testified to by the complaining witness. We note that there was testimony that police tapes were regularly erased after 30 days for reuse and inasmuch as defendant wanted the tapes only for possible impeachment of the officers and because there is no indication that the tapes were erased to avoid their production in this trial or that they might have had some impeachment value, we do not believe defendant was prejudiced. The record also indicates that the crime lab never provided the police department a report of its examination of the knife, if any was in fact made, and in any event counsel for defendant brought out the testimony that there was no indication of blood on the knife and therefore we see no prejudice to defendant by reason of the fact that a crime laboratory report analysing the knife was not produced in court. In his complaint concerning the refusal of certain photographs defendant contends he was denied1 due process because he was prevented from establishing a phase of his defense intended to show that Kirk was unsure of the place where he parked the truck which, he contends, could have led the jury to conclude that Kirk erred in his recollection of other aspects of his testimony. We note that the trial judge inspected each one of the photographs and informed defendant’s attorney that he could choose any photograph from each group and it would be admitted by the court but that he would refuse other photographs unless they could be justified for other reasons, following which there was a hearing as to admissibility of each photograph with 8 of 19 being admitted. Defendant made ho offer of proof as to other 11, nor does he otherwise point out how he was prejudiced by the refusal of any one of the photographs.

The purpose of review in a criminal case is not to determine, whether the record is perfect, but whether the defendant had a fair trial under the law and whether his conviction is based upon evidence which establishes his guilt beyond a reasonable doubt. (People v. Dickman (1969), 117 Ill.App.2d 436, 253 N.E.2d 546.) We conclude here that the conviction of defendant was upon evidence that did establish his guilt beyond a reasonable doubt.

Defendant was convicted of attempt (armed robbery) and of three counts of aggravated battery and sentenced to specific terms on each to run concurrently. In People v. Baker (1969), 114 Ill.App.2d 450, 453-457, 252 N.E.2d 693, this court gave a thorough discussion delineating the propriety of concurrent sentencing and, although this point was not raised on appeal, we have examined the record to determine whether the conduct of the defendant, constituting attempt (armed robbery) and three counts of aggravated battery, arose out of the same occurrence at the same time and place, so that, under Ill. Rev. Stat. 1971, ch. 38, par. 1 — 7(m), there should be but one sentence for the legally greater of the offenses as discerned by comparing the maximum statutorily authorized punishment for each of the two crimes. (People v. Gaines, 11 Ill.App.3d 14, 295 N.E.2d 560.) Here, the defendant’s acts constituting the offense of aggravated battery were not independently motivated or otherwise separable from the offense of attempt (armed robbery) and it was therefore improper for defendant to be sentenced on any count of aggravated battery, it being a lesser offense than attempt (armed robbery). People v. Miller (1971), 2 Ill.App.3d 206, 276 N.E.2d 395; People v. Thompson (1972), 3 Ill.App.3d 684, 278 N.E.2d 1.

The judgments as to all four crimes charged are affirmed. The sentence for the crime of attempt (armed robbery) is also affirmed, but the sentences for the three offenses of aggravated battery are vacated.

Affirmed, sentences vacated in part.

DRUCKER, P. J., and ENGLISH, J„ concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanley Lucas, Defendant-Appellant.
    (No. 57337;
    First District (5th Division) —
    July 6, 1973.

      Howard D. Geter, Jr., of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

LORENZ, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dwight Coleman, Defendant-Appellant.
    (No. 57824;
    First District (5th Division) —
    July 6, 1973.
   PER CURIAM.

ENGLISH, J., took no part.

Paul Bradley, of Defender Project, of Chicago, (Martin Carlson, of counsel,) for appellant.

Bernard Carey, State’s Attorney, of Chicago, for the People.


author: Mr. JUSTICE HALLETT.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Percy Taylor, Defendant-Appellant.
    (No. 57627;
    First District (1st Division) —
    July 9, 1973.
    James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Patricia Campbell Bobb, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE HALLETT.


author: Mr. PRESIDING JUSTICE STAMOS Mr. JUSTICE HAYES

text:
    Donald Smith et al., Plaintiffs-Appellants, v. Realcoa Construction Co., Inc., Defendant-Appellee.
    (No. 55593;
    First District (2nd Division) —
    July 10, 1973.

      HAYES, J., dissenting.
    Thompson & Thompson, of Chicago, for appellants.
    Norman S. Rosen, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs, Donald Smith and Harold Gluff, filed an action at law against defendant Realcoa Construction Co. for compensation for services rendered. After a bench trial judgment was entered in favor of plaintiffs in the amount of $230. Plaintiffs appeal from this judgment, and raise these issues for our review:

1. Whether the trial court improperly refused plaintiffs’ request for a jury after defendant waived its demand;

2. Whether the trial court improperly permitted the testimony of a defense witness whose name was omitted from defendant’s answers to interrogatories; and

3. Whether the decision of the trial court is against the manifest weight of the evidence.

The record indicates that plaintiff Donald Smith was a self-employed excavator. In May, 1964 he was recommended by his brother, Harold Smith, for a job on defendant’s Shires subdivision in Des Plaines. Harold Smith was at that time defendant’s construction superintendent on the Shires project. On May 7, 1964 plaintiff Smith entered into an oral contract with Earl Rosin, defendant’s agent in charge of the Shires subdivision. Plaintiff was hired to excavate and grade, and was to receive an agreed-upon hourly rate for the grading work. In July and August of 1964 plaintiffs were paid a total of $1801 and at trial it was shown that an additional $91 had been paid. Therefore, the sum in controversy at trial was $6349.25. Defendant based its defense on (1) improper work by plaintiffs requiring grading to be redone by third parties hired by defendant and (2) improper billing for time during which plaintiffs’ equipment was inoperative. Defendant admitted owing plaintiffs $230 for excavating and back-filling work.

At trial, both plaintiffs testified that their tractor and dump truck had not been idle and that they had received no complaints regarding their grading work while they were on the job. Harold Gluff testified that he was hired by Donald Smith in mid-July, and remained on the job until August 18, that his equipment consisted of a tractor for grading and a dump truck, and that he could not read grading plans very well. Donald Smith testified that he visited the work site approximately 3-4 hours per week, and each of his machine operators kept his own time record. He therefore was not able to testify from his personal knowledge regarding the idle time of his employees or of their equipment. He also testified that he had no recollection of seeing defendant’s grading plan at the site, and that he could not recall the substance of any of his conversations with Ted Paige who replaced Harold Smith as superintendent in mid-July, 1964. Harold Smith testified that the grading plan, “Defendant’s Exhibit #1,” may have been at the site, that his job as superintendent included signing work authorizations before payment could be made for properly done work, and that on one occasion he had signed an authorization for an improperly done grading job which Donald Smith was obliged to regrade.

Earl Rosin, the president of defendant corporation, testified that he visited the job site, and in June of 1964 he advised Harold Smith that the grading was improper. In late July or August, he discussed the problem with Donald Smith who assured him that the work would be done properly. Three former employees of defendant testified that they observed improper grading on the site, and that plaintiffs’ equipment wás inoperative. Paige, the superintendent at the site from the first week in July until early 1965 testified that he went over the grading plan with Donald Smith, but subsequently he had to summon another contractor to regrade a portion of the land; Harold Gluff could not redd the grading because his tractor was inoperative. Paige declined to sign work authorizations for improperly graded work and also for time when the machines were inoperative. He also testified that Gluff devoted too much time to moving dirt with his dump truck. Phillip Sacks, an assistant superintendent, testified that the tractor and dump truck were idle through July and August The final witness to testify regarding the improper grading was Michael Rothbard who observed the work at the site and handled defendant’s billing. He also stated that from July 14 to August 19, the tractor was idle, but that on two occasions the dump truck was used and those bills were paid.

The trial court made a finding that the grading was not done in a workmanlike manner. The court found that plaintiffs endeavored to do the work, but could not adequately perform, and therefore plaintiffs were properly refused payment. The court entered a judgment for plaintiffs in the amount of $230 based on the admission of defendant of that amount owed plaintiffs.

OPINION

Plaintiffs first contend that they should have been allowed to demand a jury trial after defendant waived its jury demand immediately prior to the commencement of the trial. The trial court denied their request on the grounds that they had not complied with section 64 of the Civil Practice Act, and since the parties were ready for trial, there was no reason for further delay. Plaintiffs maintain that they did not request a jury at the time of filing their complaint because of the additional two year delay before the case would be set for a jury trial. Therefore, they argue that because they had waited through the delay, they should have been entitled to a jury trial. Defendant contends that the clear and unambiguous provisions of section 64 were not complied with, and plaintiffs have shown no injury.

Section 64 of the Civil Practice Act provides in part:

“(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury * *

A trial judge exercises discretion in extending or refusing to extend time for filing a jury demand, and each case must be judged on its own facts. (Dawson v. Maxwell, 13 Ill.App.2d 228, 141 N.E.2d 6.42.) The right to a trial by jury may be reasonably regulated, but restrictions should be liberally construed in favor of the right, and the inclination . of the court should be to protect and enforce the right. In Hudson v. Leverenz, 10 Ill.2d 87, 92, 139 N.E.2d 255 the court stated:

“However, even though a plaintiff does not file his jury demand at the time suit is commenced,’ or a defendant ‘at the time of filing his appeárance,’ this court has said that the right to have a jury is not necessarily foreclosed. It is held that by reason of section 59 of the Civil Practice Act and Supreme Court Rule 8 (now Rule 183), the trial court may in its discretion and under certain circumstances, extend the time for filing the request for jury trial.” [Citation omitted.]

Section 59 of the Civil Practice Act provides in pertinent part:

“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.”

Supreme Court Rule 183 provides:

“The court, for good cause shown on motion after notice to the opposing party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.”

Plaintiffs argue that it is grossly unfair that they were made to wait 5 years for a jury trial, and at the last moment to be denied a jury trial because of defendant’s waiver. However, there is no unfairness where plaintiffs, who were in full control of their litigation at the time they commenced their suit, decided not to demand a jury, and in the end, did not have a jury trial. Their reliance on a jury trial came after the fact— after they made their decision not to demand a jury.

It can be argued that section 64 provides relief for defendants who rely on plaintiffs’ jury demands which are then waived, and that this court should provide such relief for plaintiffs'in the same situations. However, a defendant who is brought into a suit after a plaintiff has filed a demand has no opportunity to make his choice regarding a jury trial, and section 64 allows him to make this initial choice when the plaintiff waives. In the instant case, however, plaintiffs had an initial choice and exercised it, and therefore, plaintiffs’ situation is not analogous to the situation provided for in section 64.

It is also argued that a jury trial in this case would not have inconvenienced either party, and therefore, should have been granted. However, to grant plaintiffs a jury trial would destroy the systematic order of procedure for which section 64 provides. The time limitations would no longer be needed, and certainly the purpose of section 64 would be changed. We recognize that time limitations must not be ends in themselves, but in this case they must be applied absent á showing of “good cause.” Plaintiffs have not shown “good cause” as would support an extension of 5 years in which to demand a jury. (Schwartz v. Lake View Tool & Manufacturing Co., 4 Ill.App.2d 565, 124 N.E.2d 570.) Therefore the trial court did not err in denying plaintiffs’ request for a jury trial.

Secondly, plaintiffs contend that the court erred in permitting Phillip Sacks to testify since he was not listed on defendant’s answers to interrogatories.

The court heard argument and held that Sacks could testify because plaintiffs could not show that, at the time defendant answered the interrogatories, it was aware that Sacks had knowledge of facts concerning this case. Plaintiffs argue that Sacks was hired by defendant and defendant knew he worked on the Shires project. The fact that defendant’s counsel knew nothing of Sacks until one day before trial is irrelevant. Defendant maintains that Sacks reported to Paige, and both Sacks and Paige left defendant’s employ before the answers to the interrogatories were filed.

An interrogatory is directed to the actual knowledge and information available to both counsel and litigant. (Battershell v. Bowman Dairy Co., 37 Ill.App.2d 193, 185 N.E.2d 340.) The interrogatories in the present case requested the names of persons who may have had knowledge of the facts of plaintiffs’ complaint or defendant’s answer. Sacks was employed as assistant superintendent on the Shires job, and thus defendant obviously knew that he was on that job during the time plaintiffs were employed. Therefore, defendant must have known that Sacks had some knowledge concerning the cause of action. Defendant’s failure to list Sack’s name in its answers to the interrogatories must be treated as noncompliance with the discovery order.

Where a party offers testimony of a person not listed on an interrogatory, the trial court has power to exclude the witness in its discretion, but exclusion is not mandatory. The trial court has the duty to ascertain the type of witness and content of the evidence, good faith of the party calling the witness, and degree of surprise and prejudice to the other party, including prior knowledge of the witness by the other party. Wright v. Royse, 43 Ill.App.2d 267, 193 N.E.2d 340; Buckler v. Sinclair Refining Co., 68 Ill.App.2d 283, 216 N.E.2d 14.

When Sacks was called as a witness, plaintiffs did not ask for a continuance, and the sole relief requested was exclusion of his testimony. Although defendant’s counsel failed to notify plaintiffs when he became aware of Sacks’ knowledge, there was no showing of bad faith or concealment by defendant, or of prejudice to the plaintiffs. Plaintiffs also knew that Sacks was on the job while they were employed there. (Frozen Foods Express v. Modern Truck Lines, Inc., 79 Ill.App.2d 84, 223 N.E.2d 275.) Therefore, the trial court did not abuse its discretion in allowing the witness to testify. In any event, the testimony would not be reversible error since the court correctly stated that Sacks’ testimony was merely cumulative. Granger v. Turley, 20 Ill.App.2d 488, 158 N.E.2d 610.

Lastly, plaintiffs contend that the finding by the trial court is contrary to the manifest weight of the evidence.

A trial judge who sees the witnesses and hears the evidence is in a much superior position to find the truth than is a reviewing court. The weight to be given testimony and credibility of witnesses are matters within the trial judge’s province. A trial judge’s finding will not be disturbed unless plainly erroneous and against the manifest weight of the evidence. Johnson v. Fischer, 108 Ill.App.2d 433, 247 N.E.2d 805.

Our review of the record indicates that the evidence supports the judgment of the trial court. Three disinterested former employees of defendant testified that plaintiffs’ grading work was improperly done and that their equipment was inoperative for periods of time during which plaintiffs billed defendant. We note some inconsistencies regarding the dates and length of time during which the tractor was idle and the dump truck was utilized. However, these inconsistencies do not affect the overall credibility of these witnesses who agreed that plaintiffs did not perform properly and that their machinery was idle.

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

LEIGHTON, J„ concurs.

Mr. JUSTICE HAYES

dissenting:

My dissent is limited solely to the issue of plaintiffs’ right to a jury trial. On the other issues I concur with the majority.

The trial was a bench trial despite plaintiffs’ demand for a jury trial made for the first time just before the trial was to commence. The facts and relevant law as to this particular matter are as follows. Section 64(1) of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, sec. 64(1)) provides in relevant part as follows:

“A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury * # *. If the plaintiff files a jury demand and thereafter waives a jury, any defendant and, in the case of multiple defendants, if the defendant who filed a jury demand thereafter waives a jury, any other defendant shall be granted a jury trial upon demand therefor made promptly after being advised of the waiver and upon payment of the proper fees, if any, to the clerk.”

Hence, when plaintiffs herein came to the point of filing their complaint, they had a choice to make as respects their right to a trial by jury. They made that choice against a background of fact of which we take judicial notice, namely, that in the circuit court of Cook County in 1965 civil cases in which either party had filed a jury demand were reached for trial a very substantial period of time later than civil cases in which no jury demand had been filed. The parties in this case have not disagreed with the average estimate at that time of five years for jury cases and three years for non-jury cases, and we accept that estimate for the purposes of this case. Plaintiffs, then, knew that, should they file a jury demand, as required, at the time of filing their complaint, they would, if successful in their action, have to wait two years longer for a judgment than would be the case, should they forego a jury demand. They, therefore, elected to forego a jury demand. Defendant, however, timely filed its jury demand and plaintiffs were perforce required to, and did, wait the extra two years. After the full wait, in the late morning of 25 May 1970, the case was assigned for trial at 2:00 P.M. that same day. When defendant entered the assigned courtroom some minutes before 2:00 P.M., plaintiffs were told that defendant was about to ask for a short conference with the trial judge for the purpose of apprising him and plaintiffs that defendant was withdrawing its jury demand. At the conference, defendant did withdraw its jury demand, and the trial judge then told plaintiffs that section 64(1) precluded a late jury demand by plaintiffs. At the commencement of the bench trial minutes later, plaintiffs demanded a jury trial, but, after some argument, were denied a jury trial on the basis of section 64(1) and of the trial judge’s obligation to move cases as fast as he could.

I am aware that all but one or two cases dealing with the matter of a late jury demand have dealt with a late demand by a defendant or a co-defendant under the circumstances described in the final sentence of section 64(1), which is the only provision specifically dealing with the matter of a late jury demand. I find this situation readily understandable, since section 64(1) contains no provision relating to a late jury demand by plaintiff. The omission of any such provision is equally understandable because the “mischief” with which the final sentence of section 64(1) purports to deal, is the situation in which a party has elected to forego the timely filing of his own jury demand in reliance on the fact that another party has already filed a timely juiy demand. Such reliance then later proves to have been misplaced when the prior party decides to withdraw the jury demand relied upon. The provision in the final sentence of section 64(1) then operates to relieve the relying party from what would otherwise have been the consequences of his reliance by allowing him to file a late jury demand which should be granted when “there is no showing of inconvenience to the court or the parties litigant or prejudice to any rights in any manner whatsoever”. (Hartsock v. Bress (1963), 40 Ill.App.2d 66, 69, 189 N.E.2d 673.) Naturally, no provision is made in section 64(1) for a late jury demand by plaintiff because, in the very nature of things, plaintiff, in failing to file its timely jury demand, can never be in the position of having relied upon a prior timely jury demand by another party.

In respect of late jury demands, Hudson v. Leverenz (1957), 10 Ill.2d 87, 139 N.E.2d 255, indicates the basic approach to be taken by the court. The right to a jury trial is, after all, a constitutional right. (1870 Illinois State Constitution, article II, section 5.) The right may be reasonably regulated by the overriding necessity for an orderly judicial process; hence, reasonable time limits may be placed upon its exercise, but any statute purporting to do this “should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right”. (Morrison Hotel and Restaurant Company v. Kirsner (1910), 245 Ill. 431 at 433, 92 N.E. 285.) Such liberal construction, however, is itself subject to the further limitation that there be an absence of a showing that the granting of the late jury demand Would substantially inconvenience either the court or the other litigant, or would prejudice any rights in any manner whatsoever.

In one sense, it is true to say that plaintiffs had a free initial choice of a jury trial or no, and they exercised that choice by opting against a jury trial. Realistically, however, plaintiffs’ choice was between two values: a jury trial or a substantially earlier adjudication of their action (an estimated two years). For whatever reasons, plaintiffs’ primary value was the shorter time, and for that they sacrificed tire secondary value. Defendant then had the same value choice: for whatever reasons, the primary value for defendant was a jury trial. Defendant’s choice effectively destroyed plaintiffs’ primary value, and plaintiffs had to be content with their secondary value. Then, after the full five-year wait and at the very last moment, defendant withdrew its jury demand, presumably because a bench trial had by then become a superior value for defendant. That plaintiffs still cherished their secondary value is apparent from their immediate motion for leave to file a late jury demand. When defendant objected, the trial court denied plaintiffs’ motion on the basis of section 64(1) and of the court’s obligation to expedite the disposition of cases as much as possible. The result is that defendant has now been able to destroy plaintiffs’ secondary value while achieving both of its own values. In a very real sense, plaintiffs’ choice of values has been rendered wholly illusory, while defendant’s choice has been doubly fulfilled.

I think that such a result puts too much strategic leverage within defendant’s power under all the circumstances of this case. Fairness and balance of power between the parties may be restored by allowing plaintiffs, if they see fit, to file a late jury demand. There is no showing of any prejudice or inconvenience to defendant from the allowing of a jury trial, and no showing of any inconvenience to the trial court beyond the possible further delay for a period which would be inconsequential as compared with the two-year additional delay already caused by defendant’s jury demand.

I am aware of the provision in section 64(1) that “Otherwise the party waives a jury * * I believe, however, that the following sentence in that subsection demonstrates that the General Assembly intended not to make the waiver absolute, and in addition I rely on the language in Hudson v. Leverenz (1957), 10 Ill.2d 87, 92, 139 N.E.2d 255 (including the statutory provision and the Supreme Court Rule referred to therein), all as cited and quoted in the majority opinion, so that there is no need to repeat it all here.

As the time lag between bench and jury trials in civil cases in the circuit court of Cook County is diminished, the necessity for the adjustment which I here would make will diminish, and the matter may then be reconsidered.

I would reverse the judgment for plaintiffs and remand the cause to the circuit court of Cook County with directions to allow plaintiffs’ motion for leave to file a late jury demand, and for a retrial to a jury, if plaintiffs see fit to file the late jury demand and pay the appropriate fees within three days of the date on which their motion for leave to file is allowed. Should no late jury demand be filed, I would affirm the judgment for plaintiffs.

       Ill. Rev. Stat. 1969, ch. 110, par. 64.

       ID. Rev. Stat. 1969, ch. 110, par. 59.

       ID. Rev. Stat. 1969, ch. 110A, par. 183.


author: Mr. JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Angel Rivera, Defendant-Appellant.
    (No. 56007;
    First District (2nd Division) —
    July 10, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Robert M. Gray and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Robert J. Cohen, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

Indictment No. 71-226, filed on 26 January 1971, charged defendant-appellant Rivera (hereafter defendant or Rivera) with the unlawful sale on 15 October 1970 of a narcotic drug, to-wit: heroin (more specificaHy described at trial by a police chemist as .14 grams of diacethyl morphine hydrochloride. (Ill. Rev. Stat. 1969, ch. 38, sec. 22 — 3.) At the arraignment on 3 February 1971, at which defendant entered a plea of not guilty, defendant promptly informed the court that he “don’t speak English.” By 11 February 1971, the court had appointed the Public Defender to represent defendant. At a bench trial on 8 April 1971, the court found defendant guilty of the offense of unlawful possession of a narcotic drug, and sentenced him (under the provisions of Ill. Rev. Stat. 1969, ch. 38, sec. 22 — 40) to a term in the Penitentiary of not less than three years nor more than nine years (to run concurrently with a like term which had already been imposed on defendant on a plea of guilty to Indictment No. 71-500, a matter not involved in this appeal).

The evidence presented by the State in its case in chief consisted of the testimony of two Chicago police officers, Officer Markham and his partner Officer Rouzan. Officer Markham testified that he was serving as an undercover officer for the narcotics section of the Vice Control Division on 15 October 1970. Early that evening, he was driving his personal automobile and was accompanied by a “special employee” of the police department. He stopped his automobile at a comer where he was introduced by the “special employee” to two men then identified only as Ponce and Louie, but whom the officer later identified as defendant Rivera and his codefendant, one Lucas Torres. Torres asked Officer Markham how much heroin he wanted to buy. After Markham had replied that he wanted two bags and after he had paid Torres $11.00, Torres nodded to defendant who then spat two green-colored balloons out of his mouth into his hands. Defendant then handed the two bags to Officer Markham. The officer thereupon drove away and joined his partner, Officer Rouzan, two blocks away. After taking the “special employee” home, the two officers went to Headquarters where a test was performed on a portion of the contents of one of the balloons. The test revealed that the balloon contained heroin. On 21 October 1970, Officer Rouzan, to the knowledge of Officer Markham, obtained arrest warrants for “Ponce Doe” and “Louis Doe”. The arrest of defendant and Torres did not occur until 23 November 1970, when Officer Markham saw the two men and notified Officer Rouzan where he could make the arrests.

Defendant did not testify in his own behalf. Codefendant Torres did and denied having made any sale to Officer Markham, and stated that he had first met Officer Markham only after his arrest. There was no other testimony for the defense.

At the jury-waiver proceeding, which immediately preceded the trial in the instant case, the Public Defender informed the court that “this will be a bench trial”, and then immediately added: “Mr. Rivera has some difficulty in communicating. He is of Spanish origin. Mr. Torres speaks English and Spanish and will interpret as to the jury-waiver.” Codefendant Torres had been indicted for the same offense arising out of the same occurrence, and both codefendants were represented by the same Public Defender. The court said: “All right. I want to know whether each of you understand what [the Public Defender] told the court. He has indicated to this court that you wish to have this trial by the court. You want the court to hear the case, is that correct?”

Rivera: “Yes.”

Torres: “Yes.”

The court then proceeded to explain the fact that defendant and co-defendant had a right to a jury trial and what that right meant. At each of two stages of this explanation, the court said: “You understand that?” The first time, Rivera replied “Yes”, and then Torres replied “Yes”, speaking for himself. The second time, Torres replied “Yes”, speaking for himself. The court then said: “Would you [Torres] ask him [Rivera] if he understands that?” Before Torres said anything to Rivera, Rivera said “Yes”. The court then said: “He understands that?” and Torres replied “Yes”.

The court then said: “What you are asking then and what [the Public Defender] is saying is that you want the Court to hear the evidence and you want this Court to decide your innocence or guilt on the charge, is that right?” Torres said “Yes”, speaking for himself. The court then said to Torres: “Ask him [Rivera] if this is what he wants too.” Before Torres asked Rivera anything, Rivera said “Yes”, whereupon Torres echoed “Yes”.

The first ground of this appeal is that at the jury-waiver proceeding, defendant Rivera did not “knowingly and understandingly” waive his right to trial by jury, for which reason the court lacked jurisdiction to enter a finding of guilty. The basis for this position is the fact that no interpreter or translator was utilized to assist Rivera.

In People v. Soldat (1965), 32 Ill.2d 478, our supreme court said:

“The calling of an interpreter is normally within the discretion of the trial court, and a conviction will be reversed only when there has been an abuse of that discretion which operates to deprive a defendant of some basic right.”

Defendant, however, calls our attention to the 1970 case of U.S. ex rel. Negron v. the State of New York, 434 F.2d 386, in which the Court of Appeals for the Second Circuit held that, under the Sixth and Fourteenth Amendments to the Federal Constitution, the trial judge in a State criminal proceeding has a duty to appoint an interpreter sua sponte at any stage of the proceeding at which the need to do so, in order to enable the defendant effectively to participate, either becomes or ought to have become manifest to the court. We hold that, in the instant case, the trial judge discharged that duty by acquiescing in the suggestion of defense counsel, made at the very outset of the jury-waiver proceeding, that co-defendant Torres act as interpreter for Rivera.

Defendant next suggests a further development in the law as to this matter of an interpreter, namely, that, if and when it becomes apparent to the trial judge that the interpreter is not in fact interpreting, then it becomes the duty of the trial judge sua sponte to intervene and to take whatever action he deems necessary to insure that interpretation does in fact occur. The factual basis in this case for defendant’s suggestion is as follows: At the post-trial hearing in aggravation and mitigation, the trial court itself appointed an interpreter for defendant (perhaps because, at this stage of the proceeding, the interest of Torres first became different from the interest of defendant). The record of that hearing shows that, on at least one occasion, interpretation did in fact occur. That record was made by the same court reporter who made the record of the pre-trial jury-waiver proceeding and of the trial itself. But the record for those two stages of the criminal proceeding does not show that any interpretation in fact occurred. Defendant wishes us to indulge in the negative inference that therefore no interpretation did in fact occur; that the absence of interpretation ought to have been observable by the trial court; and that, therefore, the trial court had a duty to intervene suq sponte to assure that interpretation would in fact occur, which he had failed to do.

Such a negative inference is too slender a reed on which to predicate reversible error. Even if we indulged it, the record would also have to show that it should have been apparent to the trial judge that there was a need for interpretation in fact to occur, because defendant not only did not speak English but also did not understand spoken English. The Negron opinion states that such was the fact in that case. Here, however, the record of the jury-waiver proceeding indicates that defendant did understand spoken English, because he responded to the trial judge’s questions before Torres had any opportunity to translate those questions for him.

The second ground of this appeal is closely related to the first. It is that the failure of the trial court to advise defendant of his right to have a court-appointed inteipreter to assist him during his trial was constitutional error. The controlling law is the same for any stage of the criminal proceeding, though the trial stage itself may require the closest scrutiny on review. Defendant observes that his counsel’s proffered designation, at the jury-waiver proceeding, of codefendant Torres as the interpreter contained the qualifying phrase “as to the jury-waiver”. Defendant suggests that this qualification meant “as to the jury waiver only”, so that defendant did not have the services of any interpreter whatever during his subsequent trial. In view of the fact that the subsequent bench trial immediately followed the jury-waiver proceeding, and in view of the fact that the proffer of codefendant Torres as interpreter was not expressly limited to the jury-waiver proceeding, we think the services of Torres as an interpreter continued to be available to defendant during his trial. There was, therefore, no reason for the court to advise defendant of any right to a court-appointed interpreter because no necessity for a court-appointed interpreter presented itself to tire trial judge so long as Torres, at the initial suggestion of defendant’s own counsel, was available as inteipreter. Two-way communication between defendant and his counsel through Torres was unimpaired, and could be expected to be open and candid. The testimony and physical evidence supporting the charges against each defendant were identical. The defense of each defendant was identical. In no way was the interest of Torres in any conflict with the interest of defendant.

The third ground of defendant’s appeal is that, considering the evidence in a light most favorable to the State, it is still insufficient to establish his guilt beyond a reasonable doubt. To support this position, defendant calls our attention to certain discrepancies in the record:

(1) The Bill of Particulars alleged that the offense took place between 4:30 and 6:30 P.M. on 15 October 1970, while Officer Markham testified that it occurred about 7:30 P.M. on that date;

(2) Officer Markham testified that he delivered the balloons to Officer Rouzan when he met the latter immediately after the incident, while Officer Rouzan testified that he received the balloons only later at the police station;

(3) Officer Markham testified that he personally prepared the “Narcotic Unit File Face Sheet”, while Officer Rouzan testified that he did so;

(4) Officer Markham testified that, when he met Officer Rouzan immediately after the incident, he gave an oral description of defendant to Officer Rouzan (including the fact that defendant had no fingers on either hand), and that Officer Rouzan wrote the description in a report that same evening, whereas no report was produced which contained this striking descriptive detail as to defendant.

Defendant asks us to hold that these discrepancies create a reasonable doubt as to the credibility of the evidence against him and as to its sufficiency to establish his guilt. Furthermore, he asks us to infer a reasonable doubt as to his identification (1) from the fact that the alleged offense occurred on 15 October 1970 but his arrest did not occur until 23 November 1970, even though he had been seen during that interim by Officer Markham who knew that an arrest warrant for him was outstanding, and (2) from the fact that the “special employee” was not called as a witness for the State at the trial.

As to the matter of identification, Officer Markham positively identified defendant as one of the two individuals involved. (People v. DeSavieu (1970), 120 Ill.App.2d 45, 256 N.E.2d 80.) As to the failure to call the “special employee”, the State is under no obligation to call every available witness, and its failure to call any given witness does not create a presumption that, if called, the witness’ testimony would have been unfavorable to the State. People v. Jones (1964), 30 Ill.2d 186, 195 N.E. 2d 698.

As to the evidentiary discrepancies brought to our attention, not only do they relate to minor details, but

“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 trier of fact who had the evidence presented and observed the demeanor of the witnesses * * *. anti we will not reverse a criminal conviction
where the evidence is not so improbable as to raise a reasonable doubt of guilt.” People v. Novotny (1968), 41 Ill.2d 401, 412, 244 N.E.2d 182, 188.

The final contention of defendant on this appeal is that, while the appeal was pending, legislation was enacted which affected the penalty for the offense of which defendant was convicted and which provided that, should the new penalty be more favorable to defendant than the old penalty and should defendant’s case not have been finally adjudicated as of the effective date of the new legislation, the penalty under the new legislation is to apply. The new interim legislation referred to is the Controlled Substances Act which became effective on 16 August 1971 (Ill. Rev. Stat. 1971, ch. 56½, secs. 1100 et seq.) and which expressly repealed (Ill. Rev. Stat. 1971, ch. 56½, sec. 1603(a)) the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, sec. 22 — 1 through 22 — 49.1), which had defined the offense of which defendant had been convicted (sec. 22 — 3) and had authorized the penalty under which defendant had been sentenced (sec. 22 — 40). The formerly authorized penalty for a first offense of unlawful possession of a narcotic drug was a fine of not more than $5,000 and imprisonment in the penitentiary for a term of not less than two years nor more than ten years. The record of the hearing in aggravation and mitigation adequately discloses that this was defendant’s first offense of unlawful possession of a narcotic drug, and that the offense charged in Indictment No. 71-500 (to which defendant had at that time pleaded guilty and for which he had at that time been sentenced to a term of three to nine years in the penitentiary) was an unrelated offense.

The new offense comparable to the offense for which defendant had been convicted, and the penalty for that new offense, are provided by Ill. Rev. Stat. 1971, ch. 56½, sec. 1402(b). The offense is the knowing possession of less than 30 grams of any controlled substance containing heroin. The penalty is imprisonment in a penal institution other than the penitentiary for not more than one year or in the penitentiary from one to eight years, and a fine of not more than $15,000.

The provision of the new legislation which is here pertinent is Ill. Rev. Stat. 1971, ch. 56%, sec. 1601, which reads as follows:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted would be a violation of this Act, and has not reached the sentencing stage or final adjudication, then for purposes of penalty the penalties under this Act apply if they áre less than under the prior law upon which the prosecution was commenced.”

Defendant’s contention is (1) that the offense being prosecuted herein would be a violation of sec. 1402(b) of the Controlled Substances Act; (2) that the offense being prosecuted herein had not reached the stage of final adjudication as of 16 August 1971 (the effective date of the Act) owing to the pendency of this appeal as of that date; (3) that the penalty under the Act is less than the penalty under the prior law; (4) that, therefore, the penalty under this Act applies; and (5) that resentencing is required either by the modification of the existing sentence by this court under the authority of Supreme Court Rule 615 (Ill. Rev. Stat. 1971, ch. 110A, sec.. 615), or by the trial court on a remand with directions to resentence defendant under sec. 1402(b) of the Controlled Substances Act.

In its brief the State agrees with the first four propositions of this contention of defendant, but, as to the fifth proposition, suggests that this court modify the sentence to conform it to the new penalty rather than remand the case to the trial court with appropriate directions.

On the now available authority of People v. Chupich (1973), 53 Ill.2d 572, 295 N.E.2d 1, we agree with the parties that the new penalty under sec. 1402(b) has become applicable, because it is less than the penalty under the prior law and because this case had not reached the stage of final adjudication as of 16 August 1971. (See also People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269.) We will indicate shortly the manner in which we have decided to proceed as to resentencing.

There is a further complication, however, in the instant case which must be dealt with. While this case was still pending on appeal, the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, secs. 1001 et seq.) became effective on 1 January 1973 (sec. 1008 — 6—1). By a conforming amendment which became effective on the same date, sec. 1402(b) of the Controlled Substances Act was amended to classify the offense defined therein as a Class 3 felony, and the penalty provisions of that section were deleted, except for the provision that the fine shall not be more than $15,000. Ill. Rev. Stat., 1972 Supp., ch. 56%, sec. 1402(b).

Section 1008 — 2—4 of the Unified Code of Corrections provides as follows:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted has not reached * * * a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.”

With respect to a sentence of imprisonment for a felony, sec. 1005— 8 — 1(b)(4) provides that the maximum term for a Class 3 felony shall be “any term in excess of one year and not exceeding 10 years”. Sec. 1005 — 8—1(c)(4) provides that the minimum term for a Class 3 felony shall be “1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court”. Hence, the sentence of imprisonment authorized by the Unified Code of Corrections for a Class 3 felony is a minimum of one year to a maximum of ten years in the penitentiary with authority to the trial court under the specified conditions to increase the minimum up to one-third of the maximum actually imposed.

Is the sentence of imprisonment authorized under the Unified Code of Corrections less than the sentence under the prior law under which the prosecution was commenced? The answer to this question depends upon whether the penalty under the “prior law under which the prosecution was commenced” is to be construed as being Ill. Rev. Stat. 1969, ch. 38, sec. 22 — 40 or as being that section as amended and supplanted by Ill. Rev. Stat. 1971, ch. 56%, sec. 1402(b), which section was then made applicable to this defendant as to penalty by Ill. Rev. Stat. 1971, ch. 56%, sec. 1601. If the former, then the new authorized sentence under the Unified Code of Corrections is less than under the prior law because the minimum term of imprisonment is one year instead of two years, (even though the trial judge could, under specified circumstances, impose a minimum term of up to three years and four months). But if the latter, then the new authorized sentence under the Unified Code of Corrections is clearly not less than under the prior law.

We think the latter is the correct construction to be placed on the phrase “prior law under which the prosecution was commenced” under the circumstances of this case. Such was the result actually reached in People v. Chupich, supra, in which this same problem was involved (though the opinion does not indicate that the problem was brought to the court’s attention, which was focused rather upon the meaning of the phrase “final adjudication”). In addition, we think the legislative policy which we discern in the provision of sec. 1008 — 2—4 of the Unified Code of Corrections (as well as in the provision of sec. 1601 of the Controlled Substances Act) is fulfilled by holding in accord with the result actually reached in People v. Chupich.

We hold, therefore, that, as to this defendant, the penalty imposed by sec. 1402(b) of the Controlled Substances Act replaced the penalty imposed by sec. 22 — 40 of the Uniform Narcotic Drug Act by reason of the provision of sec. 1601 of the Controlled Substances Act (even though defendant herein was not sentenced under the Controlled Substances Act prior to the effective date of the Unified Code of Corrections), and that the sentence of imprisonment “under the prior law upon which the prosecution was commenced” within the meaning of sec. 1008 — 2—4 of the Unified Code of Corrections is the sentence authorized under sec. 1402(b) of the Controlled Substances Act as made applicable to this defendant by sec. 1601 of that Act.

Finally, we think that the discretion involved in resentencing in this case can better be exercised by the trial court than by this court. We note that the new sentence will be concurrent with the three to nine year sentence imposed on this defendant by reason of his conviction under Indictment No. 71-500.

We affirm the conviction in the instant case, and remand the cause to the trial court with directions to resentence defendant to a term of imprisonment authorized by sec. 1402(b) of the Controlled Substances Act, with credit toward the new sentence for time served under the vacated sentence.

Affirmed and remanded with directions.

LEIGHTON and SCHWARTZ, JJ., concur.

       Defendant suggests that, under the provisions of Ill. Rev. Stat. 1971, ch. 56%, see. 1410, probation would be an authorized sentence, since defendant is a first offender as to the offense involved in sec. 1402(b); and defendant asks that we grant probation if we decide ourselves to modify the sentence under Supreme Court Rule 615. Not only has it been decided that Rule 615 does not authorize us to reduce a penitentiary sentence to probation (People ex rel. Ward v. Moran (June 1973), -Ill.2d-,-N.E.2d-, (docket No. 45197), but in addition we do not think that sec. 1410 is applicable in the instant case. The section appears to contemplate that the trial court, should it decide to grant probation, will not enter a judgment of conviction, whereas in the instant case the trial court has already entered a judgment of conviction.

       We are aware that a fine was involved in the penalty prescribed both by the prior law under which the prosecution was commenced (IÚ. Rev. Stat. 1969, ch. 38, sec. 22 — 40) and by the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56%, sec. 1402(b)). And we are aware that the Unified Code of Corrections provides for a sentence to pay a fine in addition to a sentence of imprisonment (Ill. Rev. Stat., 1972 Supp., ch. 38, see. 1005 — 9—1). We exclude, however, any consideration of a fine because defendant was not in fact fined in his original sentence, and resentence under the Unified Code of Corrections may not be more severe than the prior sentence Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005 — 5—4.


text:
    Patricia Kujak, Plaintiff-Appellee, v. Rodemar Beck, Defendant-Appellee—(Mario Dato, Defendant-Appellant.)
    Rodemar Beck, Cross-Plaintiff-Appellee, v. Mario Dato, Cross-Defendant-Appellant.
    (No. 56317;
    First District (2nd Division) —
    July 10, 1973.
    Herbert F. Stride, of Chicago, for appellant Mario Dato.
    Torshen, Cohen & Eiger, Ltd. and Garretson & Santora, both of Chicago, (Benjamin H. Cohen, of counsel,) for appellee Rodemar Beck.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Roberts, a/k/a William Roberts, Defendant-Appellant.
    (Nos. 58122-27 cons.;
    First District (2nd Division) —
    July 10, 1973.
    No brief filed for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Assistant State’s Attorney, of Counsel,) for the People.
   PER CURIAM.

LEIGHTON, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charlie Warlick, Jr., Defendant-Appellant.
    (No. 58143;
    First District (2nd Division) —
    July 10, 1973.
    Lawrence S. Bloom, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Mariana Twist, and Nicholas P. Iavarone, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

DOWNING, J., took no part.