author: JUSTICE JONES

text:
      In re ESTATE OF BILLIE DEAN FAUGHT, Deceased.—(Earl L. Faught, Petitioner-Appellee, v. Nancy M. Faught, Respondent-Appellant.)
    Fifth District
    No. 81—589
    Opinion filed January 18, 1983.
    Robert L. Douglas, Charles C. Roberts, and Fred W. Johnson, all of Robert L. Douglas, Ltd., of Robinson, for appellant.
    Jon C. Anderson and James V. Hill, both of Anderson and Hill, of Robinson, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The respondent, Nancy Faught, appeals from an order of the circuit court of Crawford County revoking letters of administration to collect previously issued to her.

On September 21, 1981, respondent, who is the widow of Billie D. Faught, filed a petition for letters of administration to collect, which alleged that the total value of decedent’s estate consisted of $450 in personal property. On the same date the court entered an order appointing respondent the legal representative of decedent’s estate and directing that letters of administration to collect be issued to her. The order declaring heirship listed the respondent, as surviving spouse, and four children of the deceased.

On October 2, 1981, petitioner filed a petition for probate of decedent’s will and for letters testamentary in which he was listed as the executor of the estate. Petitioner also filed on October 2, 1981, a petition to revoke respondent’s letters of administration to collect because decedent’s will had been filed for probate.

On October 21, 1981, the court entered an order admitting decedent’s will to probate and appointing petitioner as the legal representative of decedent’s estate. The court additionally ordered that respondent’s letters of administration to collect be revoked and removed her as administrator to collect.

On appeal respondent contends that the trial court erred in revoking her letters of administration to collect. She cites section 2.1 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 2.1), which authorizes the appointment of a special administrator when the only asset of an estate is a cause of action for wrongful death, and asserts that the subsequent petition for probate of decedent’s will provided insufficient reason to revoke her letters of administration to collect.

Section 2.1 of the Wrongful Death Act (Ill. Rev. Stat. 1981, ch. 70, par. 2.1) provides in part:

“In the event that the only asset of the deceased estate is a cause of action arising under this. Act, and no petition for letters of office for his estate has been filed, the court, upon motion of any person who would be entitled to a recovery under this Act, and after such notice to the party’s heirs, legatees or devisees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action.”

Section 10 — 5 of the Probate Act (Ill. Rev. Stat. 1981, ch. IIOV2, par. 10 — 5) provides:

“On the issuance of letters testamentary or of administration *** the powers of the administrator to collect cease and his letters shall be revoked.”

An administrator to collect is merely a temporary officer appointed by the court to collect and preserve the estate of a decedent pending the determination of its proper legal representative. (In re Estate of Breault (1963), 29 Ill. 2d 165, 193 N.E.2d 824; see 34 C.J.S. Executors and Administrators sec. 1035 (1942).) As such, his powers and duties are strictly limited to those prescribed by statute (see Ill. Rev. Stat. 1981, ch. llO1^, par. 10 — 4), and his authority ceases upon the issuance of letters testamentary (Ill. Rev. Stat. 1981, ch. lKP/z, par. 10 — 5).

While section 2.1 of the Wrongful Death Act provides for the appointment of a special administrator for the purpose of prosecuting a wrongful death action when there are no other assets of the deceased’s estate, nothing in this section serves to abrogate the provisions of the Probate Act concerning the temporary status of an administrator to collect. In the instant case decedent’s widow invoked the provisions of the Probate Act when she filed for and received letters of administration to collect. By the terms of that act her authority ended upon the issuance of letters testamentary to the petitioner as executor of the decedent’s estate. We find that the provisions of the Probate Act control in determining the widow’s status as representative of the estate and that the trial court acted correctly in revoking her letters of administration to collect.

There is no merit in the respondent’s assertion that revocation of her letters in favor of a third-party executor named in the decedent’s will was contrary to the legislative purpose of section 2.1 and against public policy. While, as the respondent notes, the real parties in interest in a wrongful death action are the surviving spouse and the next of kin (Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784), the action is to be brought by the decedent’s personal representative. (See Ill. Rev. Stat. 1981, ch. 70, par. 2.) A testator has the right to designate by will who shall act as his personal representative, and a court may not ignore his directions and appoint someone else to act in that capacity. (Belleville Savings Bank v. Schrader (1919), 214 Ill. App. 388.) Where, as here, the decedent has exercised his right to name such a representative, section 2.1 should not be interpreted so as to deprive him of this right.

By its terms section 2.1 may be utilized only if no petition for letters testamentary has been filed. While it fails to specify what shall occur if letters testamentary are issued after a special administrator has been appointed, such a contingency is provided for by the provisions of the Probate Act. Thus, we find no basis for respondent’s claim that the court violated the dictates of section 2.1 in revoking her letters of administration upon the admission of decedent’s will to probate.

Respondent next contends that the petitioner may have a conflict of interest as executor in that he was allegedly drinking alcoholic beverages with the decedent on the night of his death and so may come within the complicity rule relating to actions under the Dramshop Act. (Ill. Rev. Stat. 1981, ch. 43, par. 94 et seq.) Petitioner denies the foregoing allegation and the record fails to support respondent’s contention. This court cannot take cognizance of matters outside the record (In re Annexation of Certain Territory (1973), 16 Ill. App. 3d 140, 304 N.E.2d 769), and we accordingly do not address this issue.

Finally, respondent contends that the law firm retained by the petitioner-executor has a conflict of interest in that one of its members is the State’s Attorney of Crawford County who would have been required to prosecute the decedent for driving while intoxicated had he lived. We find that any potential conflict has been rendered moot by the decedent’s death (see People v. Mazzone (1978), 74 Ill. 2d 44, 383 N.E.2d 947) and need not be considered by this court.

For the foregoing reasons, the order of the circuit court of Crawford County is affirmed.

Affirmed.

EARNS and WELCH, JJ, concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY D. PRIMMER, SR., Defendant-Appellant.
    Fourth District
    No. 4—82—0348
    Opinion filed January 11, 1983.

      John E. Gambill and Charles McRae Leonhard, both of Allen & Korkowski & Associates, of Rantoul, for appellant.
    Hugh Finson, State’s Attorney, of Monticello (T. J. Wilson, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Following a jury trial in the circuit court of Piatt County, defendant, Larry D. Primmer, Sr., was convicted on April 28, 1982, of attempted murder, two charges of armed violence each predicated on separate acts of criminal damage to property, one charge of aggravated assault and two charges of reckless conduct. The court subsequently sentenced defendant to terms of 15 years’ imprisonment for the attempted murder and armed violence convictions and 364 days’ imprisonment for the other convictions. All terms were ordered to be served concurrently. Defendant appeals asserting the trial court erred in (1) failing to sua sponte give proper issues instructions, (2) failing to give retroactive effect to a legislative amendment concerning the offense of criminal damage to property, (3) denying defendant’s request to vacate certain evidence, and (4) sentencing.

The incidents giving rise to the charges occurred at Hammond in Piatt County on August 18, 1981. The evidence established that during that summer Mary O’Neill, the daughter of defendant’s wife had been living with her mother and defendant. On August 17, she ran away from that home and went to the residence of Sharon and William Lowe. On August 18, she left the Lowe residence and went to the county probation office. Letitia Farris testified that on August 18 she had a conversation with defendant in which he stated that if he didn’t find Mary, he would kill the Farris’ family dog. Her husband, David Farris, testified that on August 18 he was looking out of an upstairs bathroom at his home and saw defendant walking up the Farris driveway and into the back yard, apparently armed with a shotgun. Mr. Farris further testified that following a conversation, defendant aimed the gun at the window and fired at the window and in a short time fired two additional shots at the house.

Sharon Lowe testified to also having a telephone conversation with defendant on August 18. She stated that later on that day, she heard two gunshots near her home and that one of the shots struck her living room window. Other witnesses testified to seeing defendant driving his car in that area at about the time of the shots. A Piatt County deputy sheriff testified he had a telephone conversation with defendant on August 18 in which defendant said, “I shot hell out of them, didn’t I.”

The issue concerning the instructions arises from evidence concerning defendant’s state of sobriety at the time of the shooting incidents. Neither Mr. nor Mrs. Farris noticed anything unusual about defendant’s demeanor on August 18. An employee of the county probation office testified that defendant appeared at that office that morning inquiring about Mary. He appeared to be coherent and did not smell of intoxicants but acted irrationally. Mrs. Lowe testified that defendant’s voice and demeanor were normal during their telephone conversation. On the other hand, the deputy sheriff stated defendant sounded as if he were intoxicated. The officer who arrested defendant at about 6:15 p.m. on the 18th described defendant as then being moderately to extremely intoxicated. Defendant’s stepson testified that he saw defendant at 2:30 p.m. which was before the shooting incidents, and defendant was intoxicated then. Defendant’s son testified his father had a problem with alcohol, and defendant’s father described defendant as an alcoholic.

None of the issues instructions given by the trial court concerning the various offenses made any reference to the partial affirmative defense of voluntary intoxication. When that defense is raised, issue instructions concerning offenses requiring a mental state of intent or knowledge should include Illinois Pattern Jury Instruction, Criminal, No. 25-25.02A (2d ed. 1981) (hereinafter cited as IPI Criminal) which states:

“_Proposition: That at the time of the offense, the defendant was capable of acting [(knowingly) (intentionally)].”

The State does not dispute that the evidence raised a defense of intoxication as to the charges of attempted murder, armed violence and criminal damage to property and that the above instruction was proper. However, the State maintains no error occurred, because the defendant did not tender the instruction. The failure to give an instruction not tendered is not error unless the failure constitutes “grave error” or, in a close case, when fundamental fairness requires the giving of the instruction. (People v. Huckstead (1982), 91 Ill. 2d 536, 545, 440 N.E.2d 1248, 1252; 87 Ill. 2d R. 451(c).) Accordingly, the issue before us is whether the failure to give the instruction was plain error as defined most recently by Huckstead.

The supreme court has held that plain error resulted when the trial court gave conflicting instructions as to the elements the State was required to prove (People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532) and when the issues instruction given to the jury failed to mention that the State was required to prove intent to defraud in a trial for deceptive practices. (People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.) On the other hand, in Huckstead, no plain error occurred when, without objection, the trial court, in a murder case, gave the jury an issues instruction which failed to require the State to negate the affirmative defense of self-defense although that issue had been raised by the evidence. The supreme court noted that: (1) the court had instructed the jury (a) defining the affirmative defense, (b) explaining that defendant did not have to prove his innocence, and (c) stating that the burden of proof remained with the prosecution at all times; (2) defense counsel had repeatedly informed the jury in closing argument that the State had the burden of proving defendant was not justified in using whatever force was shown; (3) the State had admitted this burden in its argument; and (4) although there was evidence of justification, the case was not factually close on that issue. The court stated, citing People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331, that error in instructions in a criminal case would be deemed plain error only if the error was of a grave nature as in Jenkins and Ogunsola or when it occurred in a case where the evidence was very close.

IPI Criminal No. 24-25.02 defining voluntary intoxication or drugged condition states:

“[(An intoxicated) (A drugged)] person is criminally responsible for his conduct unless his [(intoxication) (drugged condition)] renders him incapable of acting [(knowingly) (intentionally)].”

The record is clear that one instruction in the form of No. 24-25.02 was given phrased as to intoxication, but the record is unclear as to whether it was phrased as to intent or knowledge. Among the numbered copies of the instructions at C260 and C261 appear two instructions designated as “Peoples Instruction No. 21 IPI 24-25.02 Modified.” The one at C260 is phrased as to intent but has no indication on the copy as to whether it was given or refused. The copy at C261 is phrased as to knowledge and contains the notation: “Given.” With the original given instructions the record contains what appears to be the original of the copy appearing at C260 (the instruction phrased as to intent), but there is no notation as to whether the instruction was given. No original of the copy of the instruction appearing at C261 (the one phrased as to knowledge) appears in the record. However, at R538 the court is shown to have stated, out of the presence of the jury and just prior to closing argument, the following:

“Show prior to closing arguments, Mr. Simpson raised a point concerning People’s No. 21 being I.P.I. No. 24-25.02, that it should contain reference to the term intentionally, not just knowingly, and accordingly, the — in accordance with his request, the instruction is changed, People’s 22 is withdrawn to be resubmitted to be as before with the change being intentionally in 24-25.02, and the last sentence — last word, rather, of the first sentence of that instruction as it was originally submitted.”

On the basis of the foregoing record, we conclude that an instruction in the form of No. 24-25.02 was given phrased as to intent but that no such instruction was given phrased as to knowledge.

Intent is the mental state for the offense of attempted murder and the charge here alleged defendant acted with the intent to kill. Thus as to that offense, as in Huckstead, the jury was instructed as to the elements of the affirmative defense raised by the defendant. The jury was informed that defendant was not responsible for his conduct if his intoxication “rendered him incapable of acting intentionally.” In addition, the issues instruction did inform the jury that the State was required to prove beyond a reasonable doubt that defendant acted with intent to kill. The instructions would have been more complete if the jury had also been informed, as stated in No. 24-25.02A that the State was required to prove defendant “was capable of acting intentionally,” but the instructions as given make it clear that the State was required to prove beyond a reasonable doubt that defendant was not so intoxicated as to negate intent. The issues instruction and that defining the affirmative defense combine in a way here that was not present in Huckstead where the issues instruction made no mention of justification or self-defense. Accordingly, we need not discuss the other factors considered in Huckstead because, as far as the attempted murder conviction is concerned, any inaccuracy in the instructions falls far short of plain error.

Knowledge was the mental state for the offenses of armed violence predicated on criminal damage to property and aggravated assault as charged here (Ill. Rev. Stat. 1979, ch. 38, pars. 21 — 1, 12 — 2, 4 — 3(b)). Because the instruction defining the affirmative defense of voluntary intoxication made no reference to the mental state of knowledge, that defense as to these charges was not explained to the jury. Thus, the situation as to these offenses is different than it was with the offense of attempted murder and with the murder offense in Huckstead. The situation also differs from that in Huckstead in that here, neither defense counsel nor the prosecutor made any reference in closing argument to the State’s burden to negate intoxication. Nevertheless, the evidence that the defendant at the time of the acts involved was at least sober enough to know that he was shooting at buildings that would be damaged and that his conduct would put a person in reasonable apprehension of receiving a battery was overwhelming. The undisputed testimony that defendant stated, “I shot hell out of them, didn’t I?” would attest to that. In view of the very restricted situation in which failure to properly instruct the jury sua sponte constitutes plain error (Huckstead; Roberts) we find no plain error in the instructions given as to these offenses.

The armed violence charges of which defendant was convicted (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) were based on charges that, while armed with a dangerous weapon, defendant committed criminal damage to the property of the Farrises and Lowes respectively (Ill. Rev. Stat. 1979, ch. 38, par. 21 — 1(a)). By Public Act 82 — 495 enacted September 16, 1981, effective January 1, 1982, section 21 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1) was amended. The amendment raised the amount of value of property damaged necessary to make the offense a felony, when the violation was of subsection (a), as here, or subsection (f), from a sum exceeding $150 to a sum exceeding $300. Defendant maintains that section 4 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1103) requires that retroactive application be given to section 21 — 1 of the Criminal Code of 1961 in such manner that we treat the criminal-damage-to-property offenses charged here to have been misdemeanors which could not have been the underlying offenses for the armed violence charges.

By the terms of section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2), the underlying offense for armed violence must be a felony. Defendant maintains that on January 1, 1982, the effective date of the amendment to section 21 — 1 of the Criminal Code of 1961 which raised the threshold value of the property damage needed to make the offense a felony section 4 operated to prevent a conviction of defendant for armed violence based on criminal damage to property when the property was only alleged to exceed $150. We need not explain the provision of section 4 because we deem the holding in People v. Bilderback (1956), 9 Ill. 2d 175, 137 N.E.2d 389, to be dispositive of this issue. In Bilderback, the defendant was charged with assault with intent to commit the felony of escape from a penal institution. At the time of the occurrence giving rise to the charge, the offense of escape from the type of institution involved was a felony, but before trial that offense was reduced to a misdemeanor. Thus, there, as here, the felonious character of the offense which formed a basis of the offense charged was negated between the time of the offense charged and the time of trial. There, the supreme court held that section 4 did not operate to give retroactive application to the amendment and prevent conviction of the offense charged. We follow that holding here and reject defendant’s claim of retroactive application. Nothing cited in People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, indicates a different result.

We likewise reject defendant’s claim that certain of the convictions should be vacated. Although the evidence indicated that more than one shot was fired at both the Farris house and the Lowe trailer, defendant maintains only one conviction can be supported by the conduct at each place, because, in answer to a request by the defendant to elect which act it was relying on to support the armed violence charged at each place, the State responded it was relying on all shots fired. No authority is cited to support this claim. We do not deem the State’s response to preclude separate convictions from arising from separate acts.

The offense of reckless conduct in shooting at David Farris was not an included offense of the attempt to murder David Farris because the reckless conduct charge, which defendant deems an included offense, required an endangering of the safety of Farris while the attempted murder charge had no such element.

We also find no error to have occurred at sentencing. The trial court’s statement that defendant could never compensate the victims for their mental anguish was not a violation of the requirement that it consider in mitigation defendant’s stated intention to pay for the damage he had caused. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5— 3.1(6).) No error resulted from the State’s calling at sentencing the psychiatrist it had appointed to examine the defendant in anticipation of the defendant’s possible insanity defense. No physician-patient relationsMp was created by the examination. The privilege arising when a physician is appointed to make an examination concerning an accused’s competency to stand trial (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 14) was not applicable. The defendant did not submit to the examination under compulsion as he had requested the appointment of the psychiatrist. (See Estelle v. Smith (1981), 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866.) Considering the serious nature of the offense and defendant’s inability over a substantial period of time to control his use of alcohol, the sentence was not an abuse of discretion regardless of whether he had shown some improvement at the time of sentencing. People v. Cox (1980), 82 Ill. 2d 268,412 N.E.2d 541.

We affirm.

MILLS and TRAPP, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD D. SHAFFER et al., Defendants-Appellees.
    Fifth District
    No. 82—53
    Opinion filed December 14, 1982.

      William C. Evers III, Assistant State’s Attorney, of Collinsville, for appellant.
    Michael J. Reagan and Kevin C. Kaufhold, both of Kassly, Bone, Becker, Dix & Tillery, P.C., of Belleville, for the People.
   JUSTICE JONES

delivered the opinion of the court:

In this appeal brought by the State we consider the correctness of the trial court’s ruling in granting the motion of defendants, Richard Shaffer and Teresa Shaffer, to suppress evidence seized from their residence.

At the hearing on defendant’s motion to suppress, four witnesses testified: defendant Richard Shaffer and the three policemen involved in the search of defendants’ residence. Officer Simon of the Collinsville Police Department testified that on August 13, 1981, at about 4 p.m. he noticed three large plants identified,as marijuana growing in the backyard of defendants’ residence. At that time no one was at home. Officer Simon checked the residence periodically during the remainder of the afternoon to see whether the resident had returned home. Having determined sometime after 6 p.m. that the resident had returned, Officer Simon, together with Sergeant Trucano and Officer Knapp, went to defendants’ residence at about 6:20 p.m. Officer Knapp watched the rear of the house, Officer Simon went to the backyard of the residence to be sure the marijuana plants were still in the garden and then went to the front door of the residence, and Sergeant Trucano went directly to the front door. When Officer Simon “walked up on the porch,” he said, “the Sergeant was already inside.”

Defendant Richard Shaffer, the first witness to testify, stated that he first observed two police officers in the house when he came into the “front room” of the rented residence. He said,

“I was in the kitchen with my wife fixing supper, and my younger brother came in the house, and he came in a hurry saying that the police officers was [sic] coming in the house. And I walked in the front room and they was [sic] in the front room already.”

He said that there were four other persons in the “front room,” that is, the living room, at the time: Scott Shaffer, who was defendant Richard Shaffer’s younger brother but did not live at defendants’ residence, two of Scott’s friends, and defendant’s brother-in-law. Defendant testified that Scott “came as the police officers arrived to [sic] the house, he came into the house and they followed him in.” Scott’s friends had, he said, arrived earlier. Defendant testified that his brother and brother-in-law were “frequent visitors” to his house and that he had never prevented his brother from inviting friends into defendants’ home. Defendant Richard Shaffer had not consented to the officers’ entry into the residence.

Sergeant Trucano testified that he had knocked on the front door of the residence and that defendant Richard Shaffer’s younger brother had come to the door and had told him he could come in. The front door leads into the living room of the house. The witness said that defendant Richard Shaffer was in the living room, that his wife was in the kitchen cooking, that she came into the living room and that he explained the “circumstances” to defendant Richard Shaffer. This colloquy between the witness and defendants’ attorney followed:

“Q. [Defendants’ attorney] Okay. And then did you conduct a search?
A. I asked him if I could look around.
Q. And what did he say?
A. He agreed, said yes.
Q. And the search you conducted was inside the house, was it not?
A. Yes.
Q. Okay. And what did you find?
A. I didn’t find anything. Officer Knapp [who testified that he had come in the house through the back door after having been called by Sergeant Trucano] found some cannabis alongside of the chair.
Q. Okay. And you asked Mr. Rick Shaffer if you could look around and what exactly did he reply to you?
A. Best of my knowledge he said go ahead.
Q. Are you positive about that or are you speculating?
A. I’m only saying what I can remember. That’s what I— what I think happened.
Q. Okay. And you didn’t have a search warrant at that time?
A. No, I didn’t.”

The witness testified subsequently on cross-examination by the State that defendant’s younger brother had come to the door and opened it, that when the witness entered the house defendant Richard Shaffer walked into the living room, that no one had asked him if he had a warrant and that he had explained to defendant Richard Shaffer “that he had cannabis growing in the garden portion of his yard at the rear.” The witness then testified as follows in response to further questions propounded by the State:

“Q. [Assistant State’s Attorney] And what did he say?
A. He denied it.
Q. He said—
A. Denied that he had anything to do with it.
Q. All right. Do you recall exactly what he said?
A. No, sir.
Q. All right. And then is that when you asked him if you could look around?
A. Yes.
Q. And the best of your recollection, his exact words were go ahead?
A. Yes.”

On examination by the court Sergeant Trucano stated that when he entered the residence he did not know who lived there but that he recognized defendant Richard Shaffer when defendant began questioning the sergeant as to why he was there. The witness said he had known “all the Shaffer boys since they were youngsters.” The witness was not able to recall Scott Shaffer’s first name but did recall that he worked as a cook at McDonald’s.

The trial court ordered the evidence seized from the interior of the house suppressed but denied defendants’ motion to suppress the cannabis plants taken from the backyard of defendants’ residence. In the order, entered December 29,1981, the trial court found in part:

“3) That there was no consent by the owner or anyone with actual authority to enter the house. It was stated by the police officer at the hearing that he knew the person that let him in and had reason to believe that he did not, in fact, live there. There was further an indication in the testimony that the policeman’s entry was right behind the entry of the person who allegedly gave authority [sic],
4) That if the entry was without consent, it is not cured by any purported consent to search given by the owner once the police have improperly entered onto the premises.”

At a hearing held on January 19, 1982, the trial court granted defendants’ motion in limine concerning evidence obtained pursuant to the search of the residence. On January 27, 1982, the State filed a notice of appeal with respect to both orders. Thus, the State appeals not only the order granting defendants’ motion to suppress evidence seized from their residence but also the order granting defendants’ motion in limine, likewise concerning evidence obtained pursuant to the search of the residence. Defendants have raised no question as to our jurisdiction to entertain an interlocutory appeal by the State with respect to an order granting a motion in limine. However, in view of the disposition we make in this case as to the order granting the motion to suppress, we need not consider either the order granting the motion in limine or our jurisdiction to review it.

Contrary to the State’s position, defendants contend that Scott Shaffer, as a “mere visitor,” lacked authority to give “valid consent to enter the house to the police.” Defendants have not at any time denied that Scott Shaffer opened the door of their residence and allowed Sergeant Trucano to enter. Nor have they claimed at any time that Scott Shaffer’s consent to entry by the police was in any way involuntary. The trial court’s ruling as to the cannabis found outside the residence is not disputed here.

In People v. Bean (1981), 84 Ill. 2d 64, 69-70, 417 N.E.2d 608, 611, the supreme court recently discussed third-party consents to warrant-less entries:

“We agree that generally an arrest warrant is the desired means by which an individual’s right to privacy is protected. (Payton v. New York (1980), 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1381-82; McDonald v. United States (1948), 335 U.S. 451, 453, 93 L. Ed. 153, 157, 69 S. Ct. 191, 192.) However, when voluntary consent is given to enter one’s residence and an arrest is effected based on probable cause, the suspect’s rights under the fourth amendment are not violated, even in the absence of exigent circumstances. The standard for valid consent applied by the Supreme Court in a variety of circumstances is whether that consent is voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2058-59; Bumper v. North Carolina (1968), 391 U.S. 543, 548, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1791. See Johnson v. United States (1948), 333 U.S. 10, 13, 92 L. Ed. 436, 440, 68 S. Ct. 367, 368-69.) When a warrantless entry is justified by voluntary consent, that consent need not be given by defendant; it may be obtained from a third party who has control over the premises. United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993; People v. Heflin (1978), 71 Ill. 2d 525, 541.”

In United States v. Turbyfill (8th Cir. 1975), 525 F.2d 57, the defendant was the sole tenant of a residence. When police officers went to the residence to question him about a counterfeiting operation, a person who had been staying in the house for several weeks and had “the run of the house”, allowed police to enter defendant’s residence, whereupon the officers found marijuana in plain view in a shoe box on a table. The court ruled that the officers had the right to be in the position from which they saw the marijuana, describing the person who had admitted the officers as “an occupant of indefinite duration rather than a casual visitor.” The court quoted from United States v. Matlock as follows:

“ ‘When the prosecution seeks to justify a warrantless search by proof of voluntary consent it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ ” (525 F.2d 57, 59.)

The court held that the person who had admitted the officers was authorized to allow others to enter the premises.

Of Turbyfill Professor LaFave observes:

“Finally, note must be taken of a case which is quite different *** namely, where the guest is actually present inside the premises at the time of the giving of the consent and the consent is merely to a police entry of the premises into an area where a visitor would normally be received. There is sound authority that, at least when the guest is more than a casual visitor and ‘had the run of the house,’ his lesser interest in the premises is sufficient to render that limited consent effective.” (2 LaFave, Search and Seizure sec. 8.5(e), at 759 (1978).)

In Tu/rbyfill, as in the instant case, the defendant was on the premises at the time the guest gave consent to police to enter an area where a visitor would normally be received. Although Scott Shaffer was not “an occupant of indefinite duration,” as was the guest in Turbyfill, neither was he merely a “casual visitor.” He was the brother of defendant Richard Shaffer and a frequent visitor who had never been prevented from inviting friends into defendant’s home. Under the circumstances we think that Scott Shaffer had sufficient relationship to the premises to allow others to enter and, hence, had actual authority to permit police to enter an area where a visitor would normally be received. Thus, the entry into defendants’ residence by police was not unlawful. There is nothing in the record to suggest that defendant Richard Shaffer’s subsequent consent to search was involuntarily given to the police. Therefore the trial court improperly granted defendants’ motion to suppress evidence seized during the search of defendants’ residence.

Reversed.

HARRISON, P.J., and KASSERMAN, J., concur.


author: JUSTICE WELCH

text:
    THOMAS FOGUS, Plaintiff-Appellant, v. CAPITAL CITIES MEDIA, INC., et al., Defendants-Appellees.
    Fifth District
    No. 81—570
    Opinion filed December 20, 1982.
    Rehearing denied January 18, 1983.
    Amiel Cueto, of Belleville, for appellant.
    Robert B. Hoemeke and John M. Hessel, both of Lewis, Rice, Tucker, Allen and Chubb, of St. Louis, Missouri, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

Plaintiff, a Belleville, Illinois, police officer, brought suit in the Circuit Court of St. Clair County to recover damages for the publication of an alleged libel. The defendants are Capital Cities Media, Inc., publisher of the Belleville News Democrat, and Joseph Weiler, an editor of that newspaper. The trial court sustained a motion to dismiss the complaint and entered judgment for the defendants. Plaintiff has appealed.

On August 20, 1979, a news story appeared in the Belleville News Democrat with the headline: “Youths arrested in raid say police abused them.” The article is reprinted in full in Appendix A. According to the article, five unnamed youths, who had been among 25 persons arrested in a drug raid, told the newspaper in separate interviews that the plaintiff repeatedly threatened to “bust their *** teeth out,” that he hit at least one youth with a nightstick, and that he refused to allow them to use the bathroom after they arrived at the jail. The chief of police was quoted as denying the charges of physical abuse, saying “That’s a goddam lie. No one was roughed up.” In addition, three paragraphs were given to the plaintiff’s explanation of what transpired:

“Fogus denied all the charges. ‘Don’t ask the kids. Do you think we had 33 happy people back there? There was no police brutality. If they had any gripes they had the mayor and chief of police there to complain to.’
‘You fellows always want to believe the kids. Ask the police, they were there.’
He said it was impossible to allow the youths to use bathroom facilities because of the number involved.”

On April 29, 1981, the plaintiff filed his first amended complaint alleging that the charges of threats and physical abuse were false and that the defendants either knew they were false or printed the statements in reckless disregard of whether they were true or false.

The plaintiff’s first amended complaint contained four counts. Count I charged that the defendant corporation printed false statements about the plaintiff deliberately or with reckless disregard of the truth. Count III made the same charge against editor Joseph Weiler. Counts II and IV stated that the defendants acted in retaliation for the previous arrest on drug charges of Larry Gauthier, defendants’ former employee, and/or retaliation for the raid which was directed against drug traffic in Belleville.

The defendants filed a motion to dismiss plaintiff’s first amended complaint on May 22, 1981. The defendants argued in their motion, inter alia, that the publication of the article was constitutionally privileged by the first and fourteenth amendments and that the plaintiff’s first amended complaint failed to allege facts to support a claim for damages in light of the constitutional protections of the first and fourteenth amendments. In an order entered on July 24, the court granted the defendants’ motion to dismiss, holding that the plaintiff’s complaint failed to state a cause of action.

Plaintiff contends on appeal that the statements in the news story are libelous per se since the article falsely imputes the commission of a criminal offense. (Colson v. Stieg (1980), 86 Ill. App. 3d 993, 408 N.E.2d 431, aff’d (1982), 89 Ill. 2d 205, 433 N.E.2d 246.) To constitute libel per se an article need not state the commission of a crime in terms of art or with the particularity of an indictment. (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 395 N.E.2d 1185.) In the case at bar, the news story stated that the plaintiff physically abused youths arrested by him during a drug raid. At the least, these statements suggest that the plaintiff committed battery, a crime under the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 3). Moreover, the defendants suggest no plausible innocent construction of their statements (Chapski v. Copley Press (1982), 92 Ill. 2d 344; Catalano v. Pechous (1980), 83 Ill. 2d 146, 419 N.E.2d 350), and have not responded in their brief to the plaintiff’s argument that allegations of criminal conduct are libel per se.

Instead, the defendants assert the libel action was properly dismissed for failure to state a cause of action because the news story was constitutionally protected by the doctrine of “neutral reportage.” The doctrine of neutral reportage first arose in Edwards v. National Audubon Society, Inc. (2d Cir. 1977), 556 F.2d 113. (See Cianci v. New Times Publishing Co. (2d Cir. 1980), 639 F.2d 54, 67-71.) In Edwards, the New York Times reported that an official of the National Audubon Society had referred to five eminent scientists as “paid liars” because they had disputed the reported harmful effects of the chemical DDT on wildlife. Three of the scientists brought suit against the newspaper and the society, and following a jury trial, the district court rendered judgment for the plaintiffs.

The United States Court of Appeals for the Second Circuit held that the article was protected by the first amendment for two reasons. First, accurate and disinterested reporting of defamatory statements about a public figure by responsible and prominent organizations are protected regardless of the reporter’s private views on the validity of the charges. In the alternative, the second circuit held that the plaintiffs had not shown either that the newspaper knew the statements were false or that it had entertained serious doubts about their truthfulness. The second circuit noted that there was not “a shred of evidence from which the jury might have found” that the defendants had entertained serious doubts about the charges, which turned out to be baseless. Edwards v. National Audubon Society, Inc. (2d Cir. 1977), 556 F.2d 113,120.

The districts of the Illinois Appellate Court are split concerning the constitutional validity of the neutral reportage doctrine. The first district has consistently rejected the doctrine (Tunney v. American Broadcasting Co. (1982), 109 Ill. App. 3d 769, 441 N.E.2d 86; Newell v. Field Enterprises, Inc. (1980), 91 Ill. App. 3d 735, 415 N.E.2d 434; See also Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 395 N.E.2d 1185 (Romiti, J., dissenting)), while the fourth district has approved of the doctrine (Krauss v. Champaign News Gazette, Inc. (1978), 59 Ill. App. 3d 745, 375 N.E.2d 1362). The Illinois Supreme Court has expressly refused to address the issue. Catalano v. Pechous (1980), 83 Ill. 2d 146,170, 419 N.E.2d 350, 362.

In the instant case, we need not rule on the constitutional validity of the neutral reportage doctrine. If the neutral reportage doctrine does survive as a constitutional privilege, or more likely, as a special common law privilege, it would be narrowly limited to a factual situation which is presented when a responsible prominent person or organization makes serious charges against a public figure and those charges are reported in an accurate and disinterested manner. (Comment, Edwards v. National Audubon Society, Inc.: The Right to Print Known Falsehoods, (1979 U. Ill. L. F. 943.) In those cases which have recognized the doctrine, it has been because it applied in this limited manner. In Edwards, the allegations in question were made by an official of the National Audubon Society, “a responsible prominent organization.” (Edwards v. National Audubon Society, Inc. (2d Cir. 1977), 556 F.2d 113, 120.) Likewise, in Krauss, the accusations were made by an assistant State’s Attorney, a locally prominent figure. (Krauss v. Champaign News Gazette, Inc.) In the instant case, on the other hand, the allegations of police misconduct were made by unnamed youths who had been arrested by police. The doctrine of neutral reportage does not aid the defendants under these facts. Defendants further contend that counts II and IV of plaintiff’s complaint should be dismissed because motive is irrelevant under the neutral reportage doctrine, and those counts contain allegations which are relevant only to defendants’ motives in publishing the article in question. However, as we have determined that no neutral reportage privilege could exist here, we must also reject this argument.

Finally, since the plaintiff acknowledges and the case law shows that a police officer is a public official for purposes of first amendment analysis (Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 239 N.E.2d 837; Angelo v. Brenner (1980), 84 Ill. App. 3d 594, 406 N.E.2d 38), we must determine whether the complaint sufficiently alleges actual malice. As a public official, the plaintiff must establish with clear and convincing evidence that the defendants made the allegedly libelous statements with actual malice. (New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710.) Actual malice is defined to mean publication of false statements with actual knowledge that they are false or with reckless disregard for whether or not they are false. (New York Times Co. v. Sullivan.) The concept of recklessness requires a showing by plaintiff that the defendant in fact entertained serious doubts as to the truth of the publication. St. Amant v. Thompson (1968), 390 U.S. 727, 20 L. Ed. 2d 262, 88 S. Ct. 1323.

In this regard, bias, ill will, or even hatred of a public official is irrelevant, and only knowing or reckless disregard for the truth is actionable under the New York Times Co. test. (New York Times Co. v. Sullivan.) A mere grudge against a police officer is not sufficient to establish a deliberate or reckless effort to harm the officer with false statements. (Beckley Newspapers Corp. v. Hanks (1967), 389 U.S. 81, 19 L. Ed. 2d 248, 88 S. Ct. 197. See also Lancaster v. Daily Banner-News Publishing Co. (1981), 274 Ark. 145, 622 S.W.2d 671 (newspaper executive’s grudge against a police officer who had repeatedly arrested his son on drug charges was found insufficient on motion for summary judgment to establish actual malice in connection with the newspaper’s editorial allegations of police brutality).) We must emphasize that under some facts, the difference between a mere grudge and an effort to act maliciously might involve a subtle nuance in the evidence. To that end, both the United States and Illinois Supreme Courts have recently pointed out that proving actual subjective malice is a complicated task. Hutchinson v. Proxmire (1979), 443 U.S. 111, 120 n.9, 61 L. Ed. 2d 411, 422 n.9; 99 S. Ct. 2675, 2680 n.9; Catalano v. Pechous (1980), 83 Ill. 2d 146, 181, 419 N.E.2d 350, 367 (Clark, J., concurring in part, dissenting in part).

In the instant case we need only decide the threshhold issue of whether the allegations are sufficient to state a cause of action. We must determine whether the complaint sets forth factual allegations from which actual malice may reasonably be said to exist. The bare assertion of actual malice is not enough. (Colson v. Stieg (1982), 89 Ill. 2d 205, 433 N.E.2d 246; Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 229 N.E.2d 514; Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 239 N.E.2d 837.) In Coursey, a complaint which alleged that the defendants

“ ‘intending to injure the plaintiff’s good name and to injure him in his livelihood, with knowledge that [defendant’s statement] was false and with reckless disregard to whether it was false or not, maliciously *** published *** an article containing false, scandalous and malicious libels concerning the [plaintiff ”

was held to state a cause of action for libel. Coursey v. Greater Niles Township Publishing Corp. (1968), 40 Ill. 2d 257, 266, 239 N.E.2d 837, 841-42.

Similarly, in Weber v. Woods (1975), 31 Ill. App. 3d 122, 334 N.E.2d 857, the complaint alleged that the

“ ‘defendants, well knowing the facts *** but maliciously intending to injure plaintiff and to bring him into public scandal, disrepute and disgrace *** falsely and maliciously published concerning the plaintiff false, scandalous, malicious and defamatory words ***.’ ” Weber v. Woods (1975), 31 Ill. App. 3d 122, 127, 334 N.E.2d 857, 860.

The reviewing court held that the complaint in that case alleged sufficient facts from which actual malice may reasonably be said to exist.

The Illinois Supreme Court most recently examined the requirements for a sufficient allegation of actual malice in Colson v. Stieg. The court noted that the complaint in that case was, among other faults, replete with conclusions, not facts. Nonetheless, the court ruled that since pleadings are to be liberally construed, the plaintiff in that case did accomplish the minimal New York Times requirement of pleading that a false statement was made knowingly or in reckless disregard of whether it was true or false. Coursey and Weber were cited as authority for the finding that the complaint was sufficient. Colson v. Stieg.

In the case at bar, as in Colson, the complaint is somewhat conclusory. However, since the plaintiff has alleged that the defendants acted knowingly or with reckless disregard of the truth in making false statements about the plaintiff in retaliation for certain drug arrests made by the plaintiff, the elements necessary under the New York Times rule have been sufficiently alleged. These allegations in the first amended complaint, when taken with the text of the news story incorporated by reference, and the fact that the statements are libel per se, suffice to charge actual malice. (Colson v. Stieg; Coursey v. Greater Niles Township Publishing Corp.) Therefore, the trial court’s order dismissing the first amended complaint for failure to state a cause of action must be reversed and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HARRISON, P.J., and JONES, J., concur.

APPENDIX A

Youths arrested in raid say police abused them

By DAVID WAYMIRE Of the News-Democrat

BELLEVILLE - Several youths arrested during Thursday night’s raid at North End Park in Belleville said police abused their authority during and after the arrests.

The youths asked their names not be used for fear of police reprisals.

Twenty-five youths were arrested in the raid which police say netted 13 pounds of marijuana, assorted other narcotics, a .32 caliber derringer, a handful of knifes and other weapons.

Two men were charged in felony warrants for possession of large amounts of marijuana.

Youths interviewed Thursday night and Friday said police took keys without consent from some youths to search locked glove compartments and trunks and and [sic] did not return all items confiscated in the raid, even though the items did not relate to law violations.

Police Chief Barry Biehl, who was at the park during the raid, said the searches were done with the consent of the youths, “as far as I know.

“I looked in one glove box myself,” he said. “I asked the kid if I could, and he said ‘Can I go to the bathroom?’ I said why. He said ‘I have something in there I shouldn’t have.’

Again the youth was asked if Biehl could open the glove compartment, and Biehl said the youth agreed. Inside marijuana was found.

Youths told the News-Democrat they were physically abused by patrolman Thomas Fogus, who drove the paddy wagon that took youths to the police station after the arrests.

Five of the arrested youths told a reporter in separate interviews that Fogus:

- Repeatedly threatened to “bust their.. .teeth out;”

- Hit at least one youth with a nightstick as they wre entering and leaving the paddy wagon used to transport those arrested to jail, and

- Refused to allow the youths to use the bathroom after they arrived at the jail before they were booked.

Fogus denied all the charges. “Don’t ask the kids. Do you think we had 33 happy people back there? There was no police brutality. If they had any gripes they had the mayor and chief of police there to complain to.”

“You fellows always want to believe the kids. Ask the police, they were there.”

He said it was impossible to allow the youths to use bathroom facilities because of the number involved.

The youths said Fogus, wearing plain clothes, refused to give them his name or badge number. However, several pointed him out to a reporter Thursday night.

“I was in the van 40 minutes, I know,” one youth said. “He wouldn’t let us use the bathroom. One (policeman) let one guy out. The fat guy (whom the youth identified as Fogus) said, “Hey, what are you doing? They can sit in there and piss on themselves.”

Fogus said no such incident occurred. The youths said one person kept in the van urinated on himself because bathroom facilities were denied.

Fogus “hit one guy with a flash light,” one youth said. A girl arrested said he offered to fight one of the youths. Several said he used a billy club to hit a youth on the legs after others in the paddy wagon refused to maintain silence.

Biehl Friday flatly denied the charges. “That’s a goddamn lie. No one was roughed up.”

Youths said the raid came suddenly. Some said they had heard rumors that a raid would be held Thursday night, but discounted them.

They gave the following account:

Police drove up to the park without lights or sirens on. The officers said the park was closed and told everyone to get into their cars and leave. As people were driving out, police turned on their red flashing car lights and proceeded to search every car as it left the single entrance to the park.

Persons still standing in the park also were searched, youths said.

Drivers were searched most carefully one youth said. One said police took the car keys out of his car’s ignition, unlocked his glove compartment, and arrested him after finding one marijuana cigarette inside.

One youth said he was arrested standing in the park when a plastic bag of marijuana was found alongside him.

One 19-year-old youth said police confiscated a cooler of unopened beer, and returned only the cooler to him when he posted bond.

Biehl said he knew nothing of the incident.

Parents who picked up their children after bond was posted Thursday night were upset with the youths. “When does this stage end?” one asked police Capt. Michael Mercurio. “I’ve told him to stay out of that place,” said another. “But he wouldn’t listen.”

St. Clair County State’s Attorney Clyde Kuehn said Friday he could not comment on specific arrests until police reports were turned over to his office.

Police may have been on dubious grounds on some of the arrests after searches without permission, he said.

Any contraband found during an inventory search may be used in court, Kuehn said.


author: JUSTICE KARNS

text:
    CREST CONTAINER CORPORATION, Plaintiff-Appellee, v. R. H. BISHOP COMPANY, Defendant and Third-Party Plaintiff-Appellant.—(Fedders Corporation, Climatrol Division, Third-Party Defendant-Appellee.)
    Fifth District
    No. 81—604
    Opinion filed December 21, 1982.

      Harrington, Porter & Pope, of Champaign, for appellant.
    Franklin E. Dove, of Dove & Dove, of Shelbyville, for appellee Crest Container Corporation.
    John P. Ewart and Michael D. Gifford, both of Craig & Craig, of Mattoon, for appellee Fedders Corporation, Climatrol Division.
   JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, Crest Container Corporation, commenced this action against defendant and third-party plaintiff R. H. Bishop Company to recover damages for breach of contract. Bishop filed a third-party complaint against Fedders Corporation, Climatrol Division, alleging breach of warranties. The circuit court of Shelby County entered judgment in favor of Crest on a jury verdict and allowed Fedders’ motion for directed verdict made at the close of Bishop’s case. Bishop appeals from both decisions of the trial court.

This case arises from the design and installation of a commercial heating system. In 1974, Crest Container Corporation constructed a new building at their plant location near Shelbyville. The general contractor was Northeast Construction Managers. R. H. Bishop was a subcontractor employed to do plumbing, heating and air conditioning. Bishop designed the heating system based on general specifications and a performance plan developed by Crest. The system consisted of a boiler and insulated piping that carried steam to 13 separate heating units located throughout the building. Each unit contained copper coils manufactured by Fedders-Climatrol.

The system became functional by the fall of 1974. Almost immediately, Crest experienced problems with the system. It did not heat adequately and several of the heating units leaked. It also developed water hammer, described as accumulated water in the coils slamming against obstructions in the system. In accordance with its one-year warranty, Bishop made numerous repairs to the units during the 1974-75 heating season. Almost as soon as repair was accomplished, new leaks were discovered. At one point the units were modified by placing a flat stainless steel disc or pancake at one opening of the unit so that steam could not enter the unit on both sides. The system did produce more heat after the modification but Crest continued to experience leaks. The leaks and the repairs continued throughout the 1975-76 heating season. Finally, on May 25, 1976, Bishop, Crest and Northeast Construction Managers entered into a supplemental agreement. It required Bishop to make specific modifications to the system as recommended by Crest’s consultant; it further required Bishop to hydrostatically test all coils, repairing and replacing as necessary to meet the minimum requirements of the test. Bishop warranted the coils against defects, faulty workmanship and leaks for the 1976-77 heating season. It further warranted to repair any leaks that developed during 1976-77 for another heating season. Crest and Northeast Construction covenanted not to sue Bishop for problems to be remedied by the agreement, excepting any violations of the agreement.

Bishop completed the tests and performed repairs in early fall, 1976. In December, Les Bracken, Crest’s plant manager, called Bishop’s president, Charles Amacher. Bracken explained that the coils continued to leak and that repairs were no longer being made. Amacher replied that his company had already spent too much money and that they weren’t going to make further repairs. In January of 1977, Amacher called to tell Bracken that he was going to bring an expert with him to the plant to check the system. It was Amacher’s belief that Crest may have been partly' responsible for the problem. Bracken, on advice of corporate counsel, told Amacher he could come only if he brought a letter of intention that he was there to remedy the leaking problems but could not come on a “fishing expedition.” Amacher stated that no one would come and no more repairs were made.

Crest proceeded to have the system replaced by another contractor, Burdick Plumbing & Heating Company. The system was replaced during the summer of 1978. Crest has not experienced leaking problems since the replacement.

Crest incurred damages for the replacement of the heating system, for water damage to inventory stored at the plant and for labor for plant cleanup. The jury returned a verdict for Crest and awarded damages in the amount of $34,466.

Bishop contends that the verdict is against the manifest weight of the evidence. Bishop’s argument is essentially that the jury’s verdict was excessive. Bishop argues that the maximum amount for which it can be held liable is the cost of the replacement of the coils. Amacher testified that all work necessary to replace the coils would cost $17,525. Crest’s proof of damages was invoices paid by Crest to Burdick. Those invoices included costs for increasing trap sizes, increasing coil capacity, increasing supply lines, installing air vents, and installing vacuum breakers. Bishop argues this additional work constitutes a renovation of the system and is outside the scope of Bishop’s liability according to the May supplemental agreement.

We disagree. When the agreement is read as a whole, it is clear that its purpose was to ensure that Crest had an efficient, functioning heating system. Although Burdick’s invoices included work beyond simple replacement of the coils, there was evidence from which the jury could conclude that the system would not operate as warranted without the additional modifications. We also note that Crest was careful to deduct from the Burdick invoices the expense of installing humidifiers and control valves which are separate from the heating system. Crest was also required to deduct changes made in the piping system as Crest had accepted this system under the terms of the May agreement. The jury verdict was supported by the evidence, and the judgment in favor of Crest for $34,466 is affirmed.

Bishop also appeals from the trial court’s allowance of Fedders-Climatrol’s directed verdict.

In 1974, Mueller Climatrol Corporation was bought by Fedders Corporation and became a wholly owned subsidiary. At that time, a complete transfer of all the employees of Climatrol was made to an independent company, Clover Distributing. In 1977 Mueller Climatrol merged with Fedders.

Bishop supplied Clover Distributing with a purchase order and performance specifications for the Crest job. Some time before the order was accepted by Clover, Don Ennis, a sales representative, called Climatrol’s sales manager about the suitability of Climatrol’s coils for the job. The coils were rated for a 15-pound steam capacity while Crest’s specifications required 30 pounds steam capacity. Ennis was assured the coils would be adequate. The same assurance was later given to Vincent Stanec, vice-president and general manager of Clover. After receiving the assurances, the coils were ordered from Climatrol and shipped directly to the Crest plant.

Bishop’s third-party complaint alleged that the coils as manufactured by Climatrol breached an express warranty and the implied warranties of merchantability and fitness for a particular purpose. Breach of warranty is the proper theory for recovery of economic loss. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443.) It prayed for statutory damages or in the alternative for indemnification. A directed verdict was allowed on all three counts.

The standard to be applied by this court in review of a directed verdict is well established. We must find that all of the evidence, when viewed in the light most favorable to Bishop, so overwhelmingly favors Fedders-Climatrol that no contrary verdict could stand. Pedrick v. Peoria & Eastern R. R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Five grounds were given by Fedders-Climatrol in support of its motions. We have not been advised by the trial court of the basis of its decision to allow the motions. As a result we are compelled to review each of the grounds given.

We turn first to the argument that Bishop failed to prove any violation of the statutory warranties.

The implied warranty of merchantability arises in a contract for the sale of goods if the seller is a merchant with respect to goods of that kind. It requires that the goods be fit for the ordinary purposes for which such goods are used. (Ill. Rev. Stat. 1981, ch. 26, par. 2—314(1),(2)(c).) There is no question raised that the warranty applies to Climatrol. We find sufficient evidence that the coils were not fit for their ordinary purpose. Testimony revealed that the coils were too thin, that one-half inch tubing is not used in a steam heating system. Expert testimony established that it was standard industry practice to pre-pitch coils, yet the coils were not pitched or were pitched in the wrong direction. The expert stated that without the pitch, water won’t drain from the coil, thus causing water hammer. This in turn causes the coils to split, eventually causing the leaks. It was noted that some of the tube sheets had pierced holes rather than extruded holes causing the metal to rub against the copper. The rubbing produced weak points where leaks would occur. There was evidence that double inlets on a standard steam coil won’t work adequately, and the expert expressed his opinion that the standard steam coil was the wrong type of coil for the job.

The implied warranty of fitness for a particular purpose is also applicable to Climatrol. Its existence requires that the seller at the time of contracting has reason to know any particular purpose for which the goods are required. (Ill. Rev. Stat. 1981, ch. 26, par. 2— 315.) Evidence of the particular purpose was supplied to Climatrol in the performance specifications. For example, the coils on unit one had to have a capacity to heat 9,500 cubic feet a minute of air from 50° Fahrenheit to 101° Fahrenheit. The coils were to be one row steam heating coils to operate at 30 pounds of steam pressure. We must also find evidence that the buyer relied on the seller’s skill or judgment. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 315.) There was testimony that Bishop did not participate in selecting the type of coil. The standard practice was for Climatrol engineers to recommend a specific heating coil to meet the specifications submitted. We have already noted the evidence of breach. The coil tubing was too thin and the double inlet should not have been used on a standard steam coil. Most persuasive is the expert testimony that the standard steam coil was not the right coil for Crest’s needs.

Illinois law also provides for express warranties. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 313.) The parties disagree whether there was an express warranty. Bishop claims that Climatrol’s catalog stating that the coils would be “staggered pattern coils of 5/s in. O.D. seamless copper tubing” created an express warranty. Climatrol argues that this claim and the proof thereof are at variance with Bishop’s third-party complaint. The complaint alleged express warranties were created by representations of salesmen. While Climatrol’s assertion is correct, it has waived any objection to the variance on this appeal because the objection was not made at trial. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 296, 408 N.E.2d 1014, 1020.) Climatrol also argues that the catalog information was not an express warranty for the coils delivered but was just general information prepared for the purpose of ordering materials. It is clear that documents and brochures may constitute express warranties. (Ill. Ann. Stat., ch. 26, par. 2 — 313, Uniform Commercial Code Comment 5, at 220 (Smith-Hurd 1963).) Such affirmations made during a bargain become a basis of the bargain unless clear affirmative proof shows otherwise. (Ill. Ann. Stat., ch. 26, par. 2 — 313, Uniform Commercial Code Comment 3, at 219 (Smith-Hurd 1963).) It is without question that the catalog information existed during the bargaining between Bishop and Climatrol. We also find evidence that this information was directed to this particular sale. The catalog was marked in such a fashion as to suggest that it was tailored expressly for the Crest job. The first page lists Crest, Bishop, Clover and Climatrol as the relevant parties. The statement regarding the coils is unmarked while those statements not pertaining to the Crest job are crossed through. Finally, there was uncontradicted testimony that the coils were one-half inch coils thus constituting a breach of warranty.

In light of our decision that there was sufficient evidence of breach, we find it unnecessary to address Bishop’s argument that the court should have allowed its expert to express an opinion on the merchantability and fitness of the coils. Similarly, we do not address any issues concerning counsel’s offer of proof.

A second ground for the directed verdict was that Bishop failed to prove it suffered damages. Bishop prayed for damages based on breach of warranty (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 714), and for consequential and incidental damages (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 715). In the alternative, it asked for indemnification.

As to the claim for indemnification, the Supreme Court of Illinois has recently held that one cannot sue in strict liability in tort nor in negligence for the recovery of economic losses. The appropriate relief is to be found in the comprehensive scheme of the Uniform Commercial Code. (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 81, 86, 435 N.E.2d 443, 448, 450.) Thus, because Bishop can have no claim for its economic losses in tort, the claim for indemnification based upon a tort, or fault-finding, theory of recovery is improper. The liability of the indemnitee is shifted in whole to the indemnitor under a fault-finding process. In actions for breach of warranty under the Uniform Commercial Code, fault is only relevant to the issue of causation in determining if, in fact, a warranty was breached. Instead, Bishop must rely on the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 1 — 101 et seq.). The Code explicitly recognizes that the losses between parties in the distributive chain may be shifted. Section 2 — 607(5)(a) provides the procedural mechanism for cases “[w]here the buyer [Bishop] is sued for breach of a warranty or other obligation [contract] for which his seller [Fedders] is answerable over.” (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 607(5)(a).) Therefore, the suit for breach of warranty against Fedders is the only indemnification claim available to Bishop where the claim is not based on express contractual indemnity.

However, there is sufficient evidence of statutory damages. Under the Uniform Commercial Code, if Bishop has shown evidence of a breach of warranty by Fedders and that it has suffered damages to another as a result of that breach, it has made a submissable case. We have already concluded that there is sufficient evidence of a breach by Fedders which could have caused Crest’s damages.

The formula for measuring warranty damages “is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted.” (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 714(2).) A useful objective measurement of that difference is the cost of repair or replacement. (Lutgert v. Schaeflein (1943), 318 Ill. App. 83, 93, 47 N.E.2d 359, 363-64 (replacement cost of defective bricks proper method of measuring damages); Cox Motor Car Co. v. Castle (Ky. 1966), 402 S.W.2d 429, 431 (measure of damages is cost of replacing truck with one not defective).) There was evidence that the cost of replacement coils was $8,227. Although Burdick replaced the standard steam coils with the more expensive steam distributing coil, Burdick testified that the difference would amount to no more than 10%. We need not determine if the trial court’s refusal to admit Bishop’s records of the cost of repairs made was proper, as on retrial, Bishop will be allowed to offer proof of both its direct and its consequential damages under sections 2 — 714 and 2 — 715 of the Code. Ill. Rev. Stat. 1981, ch. 26, pars. 2-714, 2-715.

The remaining three grounds raised by Fedders-Climatrol were privity, freedom from fault and notice.

Privity requires that the party suing has some contractual relationship with the one sued. Although the supreme court has done away with the requirement in cases involving personal injury in tort (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 617, 210 N.E.2d 182, 185), it has not expressly done so in cases involving purely economic loss. In this case, Bishop purchased the coils from Clover, a company independent of Climatrol, and is therefore not in privity with Climatrol. In spite of this general rule, we believe the exception stated by the first district is applicable here. The court held that privity is not required when the remote manufacturer knows “the identity, purpose and requirements of the dealer’s customer and manufactured or delivered the goods specifically to meet those requirements.” (Frank’s Maintenance & Engineering, Inc. v. C. A. Roberts Co. (1980), 86 Ill. App. 3d 980, 993, 408 N.E.2d 403, 412.) Bishop’s specifications were sent to Climatrol. In fact, Climatrol selected the proper coil based on information supplied by Bishop. Climatrol knew the coils must be able to handle 30 pounds of pressure. The coils were custom made for the job and were delivered directly to the jobsite. Fedders-Climatrol argues that Frank’s Maintenance is not authority here because the court relied on a case, Rhodes Pharmacol Co. v. Continental Can Co. (1966), 72 Ill. App. 2d 362, 219 N.E.2d 726, that abrogated the privity requirement on a third-party beneficiary theory. However, Rhodes made it clear that when the party pleaded that it relied on the manufacturer’s expertise to select the product, that was sufficient to make the party a beneficiary of the warranties. 72 Ill. App. 2d 362, 372-73, 219 N.E.2d 726, 732.

Fedders-Climatrol also argues Bishop must prove it is free from fault. We have not been directed to any Illinois law that requires one to prove freedom from fault before recovery can be had for economic loss. White and Summers in their hornbook on the Uniform Commercial Code point out that plaintiff’s behavior is really a part of a larger question: whether there is proximate causation between defendant’s act and plaintiff’s loss. Thus, they view plaintiff’s behavior as a factor that may destroy the causal connection between the parties. (J. White & R. Summers, Uniform Commercial Code 411 (2d ed. 1980).) Plaintiff must prove proximate causation in warranty cases. (Ill. Ann. Stat., ch. 26, par. 2 — 314, Uniform Commercial Code Comment 13, at 234 (Smith-Hurd 1963).) Because there was evidence that the heating system as designed by Bishop would have worked adequately if the coils would have been as warranted, the question is one for the jury.

The final ground supporting the motion for directed verdict is that Bishop failed to notify Climatrol of the breach within a reasonable time after Bishop discovered the breach. Notice is a prerequisite to recovery. (Ill. Rev. Stat. 1981, ch. 26, par. 2 — 607(3)(a).) The comments to the section indicate that notification need merely be sufficient to let the seller know that the transaction is still troublesome. There is no need to state all objections the buyer has or for the buyer to say he is holding the seller liable and threaten litigation. (Ill. Ann. Stat., ch. 26, par. 2 — 607, Uniform Commercial Code Comment, at 454 (Smith-Hurd 1963).) Testimony indicates that Warren Kirk, an employee of Climatrol, visited the Crest plant with Amacher “to get to the bottom of why these coils were leaking.” The two looked over the system together. We hold that the failure of the system to operate properly in Kirk’s presence was notice to Climatrol. Overland Bond & Investment Corp. v. Howard (1972), 9 Ill. App. 3d 348, 292 N.E.2d 168; Boeing Airplane Co. v. O’Malley (8th Cir. 1964), 329 F.2d 585.

Because we find evidence of notice, it is unnecessary to decide if Bishop should have been allowed to reopen its case to introduce letters of notice, nor is it necessary to address the question "whether employees of Clover were agents of Climatrol.

For the foregoing reasons, we affirm the circuit court of Shelby County’s judgment in favor of Crest and reverse the court’s judgment on a directed verdict in favor of Fedders-Climatrol and remand the cause for a new trial on Bishop’s third-party complaint.

Affirmed in part; reversed in part; remanded with directions.

JONES and WELCH, JJ., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERRY OSBORN, Defendant-Appellant.
    Third District
    No. 82—154
    Opinion filed January 19, 1983.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Perry Osborn, was charged with two counts of aggravated battery and one count of felony criminal damage to property. Following a jury trial, the defendant was convicted on all three counts. He was sentenced to concurrent terms of two years for aggravated battery and one year for criminal damage to property. The defendant asks us to reverse those convictions alleging that: (1) he was improperly convicted on the second count of aggravated battery; (2) he was denied an impartial jury because the prosecutor used peremptory challenges to exclude the only two available black jurors; (3) the prosecutor made improper comments during closing argument; (4) the State failed to prove that the defendant caused sufficient damage to be guilty of felony criminal damage to property; (5) the court erred in ordering him to make restitution of $160 and deducting that amount from his bond money, and; (6) the defendant should have been allowed to elect between sentencing alternatives since the law at the time of sentencing provided for a lesser penalty than did the law at the time the offense was committed.

This case arose out of a fight which occurred at the Dirt Trap car wash in Rock Island on February 15, 1981, between the defendant and Mark and Susan Epperson. The dispute was over who was first in line at the busy car wash that afternoon. According to Mr. Epperson, the defendant was working on his car and did not appear to be in line so Epperson pulled in front of the defendant. The defendant then approached the Eppersons’ truck and told them to move. They refused. The defendant went to his car and returned with a wrench. He began striking the Eppersons’ truck with the wrench and told them that he would make them move. Mr. Epperson grabbed a wrench from his toolbox and left the truck in an attempt to protect his property. As the two men grappled in the parking lot, Susan Epperson, who was nine months pregnant at the time, saw the defendant hit her husband on the head with the wrench. Intending to defend her husband, she grabbed another wrench and left the truck. As she approached the two men, the defendant kicked her in the stomach. After a bystander broke up the fight, the Eppersons drove to the hospital. The following day, Mrs. Epperson delivered a still-born, full-term baby. Medical testimony established that the blow to Mrs. Epperson’s abdomen was the cause of fetal death.

According to the defendant’s testimony, after he initially approached the Eppersons’ truck and asked them to move, the Eppersons laughed at him and called him “boy” and “nigger.” After exchanging additional insults, the defendant stated that Mr. Epperson became enraged and attacked him with a wrench. The defendant ran to his car and got his own wrench. Epperson followed and a brawl ensued. The defendant contends that he never struck either of the Eppersons, but that it was Susan Epperson who hit her husband on the head when she attempted to intercede. The defendant also stated that he never struck the Eppersons’ truck and had no idea how or why Mrs. Epperson lost her baby.

The defendant’s first ground for reversal is that he was improperly convicted of the second count of aggravated battery. Count two named Susan Epperson as the complainant. Therefore, before the defendant could be convicted of aggravated battery, the State had to prove that he caused her to suffer great bodily harm. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a).) But according to the defendant, all that the State was able to prove at trial was that the defendant caused the death of a 91/2-month-old fetus. Defendant argues that a 91/2-month-old fetus is not a part of the mother and that causing its death does not constitute great bodily harm to the mother. Therefore, the State has failed to prove an essential element of its case.

The defendant attaches great importance to the fact that a 91/2-month-old fetus is a separate individual in a metaphysical sense. This argument is irrelevant to the precise issue before us, which is whether a pregnant woman suffers great bodily harm when she is kicked in the stomach with sufficient force to kill her unborn child. Regardless of whether the child is an individual in a philosophical and theological sense, the fact remains that the child is physically joined to and dependant upon the mother. Therefore, a blow to the mother which does physical harm to the child necessarily involves harm to the mother as well. By alleging and proving the death of Mrs. Epperson’s unborn child, the State was demonstrating both the severity of the defendant’s kick and the degree of harm suffered by Mrs. Epperson. Ultimately, the issue of whether the degree of harm was severe enough to constitute aggravated battery is a question of fact for the jury to decide. (People v. Carmack (1977), 50 Ill. App. 3d 983.) In the present case, the facts establish beyond a reasonable doubt that the defendant caused Mrs. Epperson to suffer great bodily harm.

Mrs. Epperson testified that it was indeed the defendant who kicked her. This testimony was corroborated by an eyewitness who saw the fight. Although Mr. Epperson did not actually see the kick, he heard his wife cry out and saw her double over in pain. Finally, the fact which most convincingly demonstrates the severity of the blow dealt to Mrs. Epperson was the tragic death of her unborn child. Medical experts testified that a blow to Mrs. Epperson’s abdomen caused a tear in the placenta, resulting in a hemorrhage in the umbilical cord, which cut off the blood supply to the fetus. In light of this record, we conclude that the defendant was properly convicted of aggravated battery.

The defendant next argues that the prosecutor’s use of peremptory challenges to exclude blacks from the jury deprived defendant of his right to be tried by an impartial jury under the sixth amendment to the United States Constitution, and article I, section 8 of the Illinois Constitution.

The prosecutor exercised a total of six peremptory challenges, two being used to exclude the only two blacks available for jury duty. The result was an all-white jury. The defendant urges this court to follow the rule set out in People v. Payne (1982), 106 Ill. App. 3d 1034. There, the third division of the first district court of appeals held that when it reasonably appears to the trial court that the State is using peremptory challenges solely to exclude black jurors, the State has the burden of demonstrating that the exclusions were for reasons other than race. The defendant argues that this reasoning must be accepted by this court in order to protect the defendant’s constitutional rights. We do not believe that Payne is a proper statement of the law in Illinois.

In a more recent, and in our opinion, better-reasoned case, the second division of the first district flatly rejected the reasoning in Payne. (People v. Newsome (1982), 110 Ill. App. 3d 1043.) In Newsome, the court stated that if Payne were followed, the peremptory challenge would be so effectively emasculated as to destroy its recognized function. That function was described by the United States Supreme Court in Swain v. Alabama (1965), 380 U.S. 202, 220, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 836:

“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.”

The court in Swain noted that a prosecutor is presumed to be using the State’s challenges to obtain a fair and impartial jury. That presumption is not overcome by allegations that in the case at hand all blacks were removed from the jury because they were black. Any other result would establish a rule wholly at odds with the peremptory challenge system as we know it. This same reasoning has been approved by our supreme court in decisions which both precede and follow Swain. People v. Harris (1959), 17 Ill. 2d 446; People v. Dukes (1960), 19 Ill. 2d 532; People v. King (1973), 54 Ill. 2d 291.

In the present case, the defendant cites only one instance in which the prosecutor used his peremptory challenges to exclude two black jurors. We do not believe that this record sufficiently demonstrates the type of invidious discrimination which must be proved under Swain. We are aware that Swain dealt with the equal protection clause of the fourteenth, while the instant case raises a sixth amendment challenge. However, we do not think that a sixth amendment approach would change the result under Swain. Therefore we decline to hold that the State’s exercise of its peremptory challenges in this instance violated defendant’s constitutional rights.

The defendant also contends that he was denied a fair trial due to a number of allegedly improper comments made by the prosecutor during closing arguments. The defendant has preserved only one of the comments for appeal. The rest are waived because the defendant did not object to them at trial nor raise them in his post-trial motion. (People v. Baynes (1981), 88 Ill. 2d 225.) We also do not find that the comments constitute plain error so as to come within an exception to the waiver rule. (87 111. 2d R. 615(a).) Under the plain-error rule, when an alleged error has been waived, a reviewing court is required to consider the merits of the error only when the evidence on both sides is closely balanced. In such a case, the alleged error should be examined in order to determine if it played a role in swinging the balance in favor of the State or had no effect on the jury’s decision whatsoever. In the present case, we find that the record strongly favors the State. Therefore we will consider only those alleged errors properly preserved for appeal.

The defendant argues that the prosecutor improperly attempted to arouse the sympathies of the jurors during the closing argument by stating that the defendant lost only a tooth as a result of the fight while the Eppersons lost much more. Any suggestion that these comments were solely intended to arouse sympathy in the jurors is nonsense. Defense counsel, in an attempt to prove that the defendant was not the aggressor, offered the testimony of an emergency room physician who had examined the defendant’s cut lip and loose tooth on the day of the fight. Thus the extent of the defendant’s injury was placed in evidence by defense counsel. In light of the aggravated battery charges, the extent of the Eppersons’ injuries were also properly in evidence. These facts were material and relevant and it was entirely proper for the prosecutor to comment on them during closing argument.

The defendant next argues that his conviction for felony criminal damage to property was a deprivation of due process, since the State did not prove beyond a reasonable doubt that the damage to the Epperson vehicle exceeded $150. We believe the State presented adequate proof on this point.

For the purpose of determining the dollar value of criminal damage to property, the proper measure of damages is the cost of repair. (People v. Carraro (1979), 77 111. 2d 75.) The State need only prove the minimum amount of damage necessary to justify a felony conviction. The record in the present case reveals the following testimony concerning the damage to the Eppersons’ truck.

Art Rice, the owner of a body shop initially stated that the cost of repairing the truck was $205.13. It was soon discovered that Mr. Rice had apparently repaired an area of damage not caused by the defendant. In order to clarify this point, the State had Mr. Rice reexamine the truck and recalled him to the witness stand. Mr. Rice then estimated that it cost approximately $160 to repair the damage caused by the defendant. The defendant implies that the State improperly coached Mr. Rice into arriving at this estimate, but offers no proof of impropriety. In the absence of any evidence on this point, we cannot conclude that the prosecutor acted improperly when Mr. Rice re-examined the truck. Furthermore, it was entirely proper for the trial court to allow the State to recall this witness for the limited purpose of pinpointing the damage caused by the defendant. (People v. Scott (1973), 14 Ill. App. 3d 211.) The testimony of Mr. Rice and the Eppersons, along with pictures of the truck which were placed in evidence, were sufficient to permit the jury to conclude, beyond a reasonable doubt, that the damage to the truck was in excess of $150.

Notwithstanding the sufficiency of the evidence on the amount of damage, the defendant contends that the amount was improper since a cheaper method of repair could have been used. Once the State has proved the minimum amount of damage necessary to justify a felony conviction, the defendant has the burden of going forward with evidence of a different measure of damage. People v. Carraro (1979), 77 Ill. 2d 75.

In the present case, the defendant cross-examined Mr. Rice only as to what other methods could have been used to repair the Eppersons’ truck. The defendant failed to establish how those other methods would result in lower repair costs. Nor did defense counsel present any evidence of an alternate measure of damages during his case in chief. In the absence of such evidence, we are not required to consider the propriety of any allegedly cheaper repair method.

The defendant next argues that the court erred in ordering him to make restitution of $160 to the Eppersons for the damage he did to their truck and deducting this amount from his bond money. Any objection to the propriety of ordering restitution has been waived since the defendant failed to object at the sentencing hearing when the order was imposed. (People v. Pearson (1982), 108 Ill. App. 3d 241.) We note in passing that the amount of restitution, $160, is not a great sum, in view of the fact that the defendant posted a $3,000 cash bond.

Finally, the defendant argues that his sentence for felony criminal damage to property should be vacated and the cause remanded for a new sentencing hearing because he was sentenced without being given the opportunity to elect between being sentenced under the law in effect at the time of the offense and the law in effect at the time of sentencing.

Section 4 of “An Act to revise the law in relation to the construction of the statutes” (Ill. Rev. Stat. 1981, ch. 1, par. 1103) states that if any penalty or punishment be mitigated by any provision of a new law, such provisions may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. At the time the defendant committed the offense of criminal damage to property, the demarcation line between misdemeanor and felony damage was $150. (Ill. Rev. Stat. 1981, ch. 38, par. 21 — 1(a).) But by the time the defendant was sentenced, the dividing line was raised to $300. (1981 Ill. Laws 2514, 2515.) The defendant caused only $160 worth of damage. Therefore, under the new law only a Class A misdemeanor sentence could have been imposed and the defendant should have been allowed to choose which law he wished to be sentenced under. Obviously, defendant would have chosen the lesser sentence.

The State argues that no error occurred since the change in the law altered an element of the offense rather than reduce the penalty. This argument cannot survive analysis.

Under the old law, the defendant’s conduct was classified as a Class 4 felony with a maximum prison term of three years. Under the new law, identical conduct is classified as a Class A misdemeanor with a maximum jail term of less than one year. Clearly, this change in the law has resulted in a lesser penalty. However, contrary to the defendant’s argument, we do not think it is necessary to remand this case for resentencing. Defendant has received a two-year sentence for aggravated battery, and one year for criminal damage to property. The sentences are to be served concurrently. Therefore, any lesser sentence imposed by the trial court after the case is remanded will not actually reduce the prison time which defendant must serve. Accordingly, we will enter an order reducing defendant’s sentence for criminal damage to property from one year to 364 days.

Affirmed; order entered.

ALLOY and STOUDER, JJ., concur.