author: Mr. JUSTICE SIMKINS

text:
    The City of Mattoon, Petitioner, v. The Environmental Protection Agency et al., Respondents.
    (No. 11544;
    Fourth District
    May 9, 1973.
    Joseph R. Spitz, of Mattoon, for petitioner.
    William J. Scott, Attorney General, of Springfield, (Thomas J. Immel and Frederick C. Hopper, Assistant Attorneys General, of counsel,) for respondents.
   Mr. JUSTICE SIMKINS

delivered tire opinion of the court:

The Petitioner-Appellant, City of Mattoon, seeks review of an order of the Illinois Pollution Control Board entered in response to a petition for variance filed by the City. The City’s petition sought a variance from certain regulations promulgated by the Board known as SWB-14 and TR 20-22. The contents of regulation SWB-14 were furnished in a supplemental record. However, the contents of “TR 20-22” were neither made a part of the petition for variance nor were they set forth in the record in any fashion.

The City filed its petition for variance on January 23, 1971. The record reveals that regulation SWB-14 was enacted by the Illinois Sanitary Water Board, the predecessor of the Pollution Control Board, and set forth various standards for water quality and effluent discharge throughout the State. Municipalities were required to comply with SWB-14 by July, 1972, and to furnish plans and specifications for the implementation of SWB-14 with the Board by January 1970. Although the record is not clear on this point, TR 20-22 was apparently issued by the Board after the enactment of SWB-14 and established standards for the municipalities to meet that were more stringent than SWB-14.

The Environmental Protection Agency (EPA) responded to the City’s variance petition by filing certain recommendations with the Board. Essentially, the position of the EPA was that the petition should be denied, the City penalized for failing to file various plans and that certain other orders be entered against the City.

A hearing on the City’s petition was held on March 17, 1971, and evidence was presented by the City, the EPA and various citizens. The decision of the Pollution Control Board was announced on April 14, 1971. After summarizing portions of the evidence elicited at the variance hearing the Board severely criticized the City for failing to meet the requirements of SWB-14 regarding the submission of plans and specifications and entered the following order:

“1. The City of Mattoon is hereby ordered to submit to the Environmental Protection Agency, on or before September 1, 1971, final plans and specifications for the facilities required to bring its sewage collection and treatment facilities into compliance with Rules and Regulations SWB-14.
2. The City of Mattoon is hereby ordered to complete the construction of the facilities specified in paragraph 1 of this order no later than July 1, 1972.
3. The City of Mattoon shall post with the Environmental Protection Agency, on or before May 14, 1971, a bond or other security in a form to be determined by the Agency, in the amount of $10,000.00, such sum to be forfeited to the State of Illinois in the event that the City does not comply with the provision of this order, as found by the Pollution Control Board in a supplementary proceeding.
4. The City of Mattoon shall, on or before July 15, 1971, issue without referendum such revenue bonds and/or general obligation bonds as may be necessary to finance the design and construction of facilities specified in paragraph 1 of this order.
5. The City of Mattoon shall complete the construction of the primary sedimentation tanks for reduction of bypasses by September 1, 1971.
6. The City of Mattoon shall not permit the connection of any new sewers or other sources of waste to its facilities, or any increase in the strength or concentration of wastes discharged to its facilities, until it demonstrates to the Agency that it is in full compliance with the requirements of SWB-14 with respect to overloads, bypasses, and the provision of advanced waste treatment.
7. The City of Mattoon shall pay to the State of Illinois, on or before May 14, 1971, a sum of $1000 as a penalty for violation of the water pollution regulations specifying dates for the submission of plans and the letting of contracts for construction of sewage treatment facilities.”

The City has perfected this appeal from the above Order. During oral argument the parties advised the Court that the sewer ban specified in paragraph six had been lifted by the EPA. Accordingly, this portion of the Order is moot.

Paragraph seven of the Board’s Order imposed a fine on the City for its failure to comply with Board regulations requiring the submission, by a specified date, of plans and specifications for the construction of facilities necessary to meet the requirements of SWB-14. Initially, we note that the fine was imposed in the context of a variance proceeding. This portion of the Order exceeded the Board’s statutory authority and, therefore, must be reversed.

Title IX of the Environmental Control Act, sections 35 through 38 (Ill. Rev. Stat. 1971, ch. 111½, par. 1035-1038) deals with variances. Section 35 (Ill. Rev. Stat. 1971, ch. 111½, par. 1035) states that:

“The Board may grant individual variances beyond the limitations prescribed in this Act, whenever it is found, upon presentation of adequate proof, that compliance with any rule or regulation, requirement or order of the Board would impose an arbitrary or unreasonable hardship. In granting or denying a variance the Board shall file and publish a written' opinion stating the facts and reasons leading to its decision.”

The Act goes on to provide that “in granting a variance the Board may impose such conditions as the policies of this Act may require.” (Sec. 36(a); Ill. Rev. Stat. 1971, ch. 111½, par. 1036(a).) Finally, the Act states that if either the Board feels a hearing is advisable or if the EPA or any other person files a written objection to the grant of the variance then “a hearing shall be held, under the Rules prescribed in Sections 32 and 33(a)” of the Act “and the burden of proof shall be on the petitioner.” Sec. 37; Ill. Rev. Stat. 1971, ch. 111½, par. 1037.

It is obvious that Title IX of the Act deals only with variances and not with. enforcement proceedings brought by the Board. Enforcement proceedings are governed by Title VIII, sections 30 — 34. (Ill. Rev. Stat. 1971, ch. 111½, pars. 1030—1034.) That Title allows the EPA to investigate alleged violations of the Act or any rule or regulation enacted thereunder and in the event a violation is either threatened or in existence the EPA is empowered to serve a formal written complaint upon the alleged violator. The burden of proof at an enforcement hearing is imposed upon the agency or other complainant. (Sec. 31(c); Ill. Rev. Stat. 1971, ch. 111½, par. 1031(c).) If the hearing discloses that a violation has taken place or is threatened then the Board can enter an appropriate order. The scope of the Board’s order is delineated by section 33(b) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(b)), which states:

“Such order may include a direction to cease and desist from violations of the Act or of the Board’s rules and regulations and/ or the imposition by the Board of money penalties in accord with Title XII of this Act. The Board may also revoke the permit as a penalty for violation. If such order includes a reasonable delay during which to correct a violation, the Board may require the posting of sufficient performance bond or other security to assure the correction of such violation within the time prescribed.”

It is clear, therefore, that the legislature created an express distinction between a variance proceeding and an enforcement proceeding. The former is instituted by an entity affected by the rules and regulations of the Board while the latter is instituted by the EPA or a complainant to correct an actual or threatened violation of those rules. The Board has no authority to impose a fine on an alleged violator in the context of a variance proceeding.

This identical issue was recently passed upon in the case of Citizens Utilities Co. v. Illinois Pollution Control Board, 9 Ill.App.3d 158, 289 N.E.2d 642 (1972). There the comt reviewed an order of the Board granting a variance to the petitioner. However, the Board imposed certain conditions upon the variance grant and, in addition, assessed a fine of $1000 against the petitioner.

On appeal, the court held that the Board could not impose a monetary penalty in a variance proceeding. The Board had contended that under Sec. 36(a) of the Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1036(a)) it was granted authority to “impose such conditions as the policies” of the Act might require and that this language was broad enough to include the enforcement provisions of sections 33(a) and 33(b). This argument was specifically rejected in Citizens with the following language:

“* * * we think that the legislative reference in section 37, which governs variances, to the procedure sections of the Act (Title VIII, sections 32, 33(a) supra), excluding any reference to enforcement orders and penalties, indicates a specific intent to exclude penalties as a part of the conditions of the grant of a variance. The fact that the Act provides enforcement proceedings to ascertain, penalize, and deter violators, further detracts from the Board’s conclusion that such powers are necessarily included in variance proceedings. If the Board wanted to impose penalties against Citizens for violations of effluent standards or for the deterioration of the lagoon, the Agency should have filed a complaint and followed proper enforcement procedures, perhaps in a consolidated proceeding * * *.
In light of section 37’s non-reference to section 33(b) in variance proceedings, and the Board’s ability to pursue enforcement procedures, the general language in sections 33(a) and 36(a) relied on by the Board should not be read to authorize the imposition of penalties in variance proceedings. If the legislature had intended to allow the imposition of penalties in variance proceedings, we believe it would have used language that plainly expressed such a purpose, as it did for enforcement proceedings. Statutory authority to impose penalties generally should not be created by construction, but only by clear and explicit enactment.” (Citizens Utilities Co. v. Illinois Pollution Control Board, 9 Ill.App.3d 158, 165, 289 N.E.2d 642, 647-48 (1972).) (Citations omitted.)

The same reasoning applies with equal force to the facts of the case before us. Here the City filed a variance petition seeking temporary relief from the application of specific Board regulations. The burden of proof was clearly on the City, not the EPA. No complaint was ever filed upon the City as required by section 31(a) (Ill. Rev. Stat. 1971, ch. 111½, par. 1031(a)), nor were the notice provisions of either section 31(a), supra, or section 33(c) (Ill. Rev. Stat. 1971, ch. 111½, par. 1033(c)) complied with. Yet the Board proceeded to fine the City $1000 ■for failing to file plans and specifications within the required time period. Paragraph seven of the order entered by the Board exceeded its statutory authority and therefore must be reversed.

Paragraph one of the Board’s Order required the City to submit, by September 1, 1971, final plans and specifications for the facilities required to bring its coUection and treatment facilities in compliance with SWB-14. The second paragraph of the order required the City to complete construction of the necessary facilities by July 1, 1972, and paragraph three called for the construction of primary sedimentation tanks by September 1, 1971. In its reply brief to this court the City suggested that these paragraphs were rendered moot by the new standards adopted by the Board after the entry of its order in this case. We concur. On March 7, 1972, the Board adopted Rule 404 which provides, in part, that municipalities such as the City of Mattoon have until December 31, 1973 to construct the facilities that are the subject of this appeal. Rule 404 also established September 1, 1972, as the date on which the necesssary plans and specifications for such facilities must be submitted to the Board. Therefore, paragraphs one, two and five of the Board’s order are moot.

Since paragraphs one, two, four, five and six of the order involve issues which are moot, the appeal is dismissed as to those issues. That portion of the order contained in paragraphs three and seven thereof, requiring the posting of a bond and imposing a fine is reversed.

Appeal dismissed in part and judgment reversed in part.

CRAVEN, P. J., and SMITH, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SMITH

license: Public Domain

text:
    James Baird, as Admr. of the Estate of Debra Lynn Baird, Deceased, et al., Plaintiffs-Appellees, v. Chicago, Burlington and Quincy Railroad Company, Defendant-Appellant.
    (No. 11700;
    Fourth District
    May 9, 1973.

      Graham & Graham, of Springfield, for appellant.
    Gillespie, Burke & Gillespie, of Springfield, for appellees.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

Wrongful death actions arising from a single event — a motorcycle with driver and passenger collided with a train. Many questions are raised. The deceased were ages 19 and 17, respectively, and unmarried— a man and a woman. A verdict of $100,000 for each of their personal representatives was retmned.

One issue mandates reversal and remandment — briefly stated, it is the interjection of punitive damages by way of instruction and argument. This case came about through an instruction tendered by plaintiffs which quoted substantially verbatim from an Illinois Commerce Commission Rule (Rule 205, ICC General No. 138) and the section of the implementing statute (Ill. Rev. Stat. 1971, ch. 111½, par. 77) which gives a cause of action for damages for a violation of such rule, and if “willful”, punitive damages.

The instruction read, in summary, that there was in force in this state a certain rule of the Commerce Commission which provided that:

“Every railroad company shall keep its right of way reasonably clear of brush, shrubbery, trees, weeds, crops and other unnecessary obstructions for a distance of at least 500 feet each way from every grade crossing where such things materially would obscure the view of approaching trains to travelers on the highway.”

that if tire jury decides that a party violated this rule on the occasion in question and that such violation was the proximate cause of the deaths of plaintiffs’ decedents and further that they were in the exercise of due care, then the jury may “assess damages in favor of the plaintiffs and against the defendant” in accordance with a statute which provided that:

“In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter, or thing required to be done by any rule of the Commission, issued under authority of this Act, such public utility shall be liable to the persons affected thereby for all loss, damage or injury caused thereby or resulting therefrom, and if the jury find that the act or omission was wilful, the jury may in addition to the actual damages, award damages for the sake of example, and by way of punishment.”

Clearly this instruction advised the jury that they could — “may in addition” — award punitive or exemplary damages — “award damages for the sake of example, and by way of punishment”. The instruction was objected to not as specifically as one might desire, but specific enough for our purposes. This punitive aspect of the award the jury might care to make was alluded to in argument — the jury was asked to say to the people of the community by their verdict, "that the railroad should not have crossings with weeds all around them” — “That you are not going to tolerate this, that the railroad must observe the rules to prevent this slaughter not just at this but at other crossings” — “I don't believe it (the asked for amount of $400,000) would compensate them but it will be a deterrent as an example to this and every other railroad that you are not going to tolerate this”.

As compared with personal injury actions, recovery for death is considerably circumscribed, quantitatively (compensatory in the sense that others are compensated for their “pecuniary injuries”) and qualitatively (the “others” being a narrow, but reasonable category of persons who can recover), so to speak. The Wrongful Death Statute (Ill. Rev. Stat. 1971, ch. 70, par. 1, et seq.) gives to the personal representative the same action for his decedent that such person would have had “if death had not ensued” and that the person responsible “shall be hable to an action for damages, notwithstanding the death of the person injured” (par. 1); damages are for the “exclusive benefit of the widow and the next of kin” and shall be “such damages as they (the jury) shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death to the wife or the next of kin” — “without limitation (in amount)”. The magic words are “pecuniary injuries resulting from such death” (the quantity) and limited to the benefit of “the wife and the next of kin” (quality). A further reading of the act (par. 2) leaves no doubt that the qualitative limitation on recovery mandates the existence of spouse or next of kin because if there are none, the delimitations on recovery are for the exact amount needed (with a ceiling) to satisfy hospital, medical or surgical, and funeral expenses.

We of needs repeat what has often been said by courts here and elsewhere, the Wrongful Death Act is to be strictly construed as being in derogation of the common law, and being thus a creature of statute, courts are not at liberty to engraft conditions not within the purview of the Act. The rule denying a right of recovery for death occasioned by the negligent act of another derives from dictum in the early English case of Baker v. Bolton (1808), 170 Eng. Reprint 1033, it being there stated by Lord Ellenborough, “* * * In a civil action * * * the death of a human being could not be complained of as an injury.” Following this enunciation of the common law came the passage of Lord • Campbell’s Act in 1846 which created a wrongful death action. It is thus apparent that the Illinois Wrongful Death Act was intended to afford the sole and exclusive remedy in a wrongful death case. If death results from the injury sued for, the suit of the injured person abates and cannot be further prosecuted. The sole purpose of the act is to compensate the widow and next of kin of the decedent for the injury resulting to them from his death and there is no implication, much less an expression, that the act was ever intended as a vehicle to punish those wilfully responsible for the death. Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 162; Chicago and Rock Island Railroad v. Morris, 26 Ill. 400.

In short, the Wrongful Death Act is not subject to amendment by implication, any amendment must be by express legislative enactment. We need only quote from amongst many, Hartray v. Chicago Rys. Co., 290 Ill. 85, 124 N.E. 849, in support:

“* # * Since the right of action for death by wrongful act is wholly statutory, and must be taken with all the conditions imposed upon it, the burden being upon plaintiff to bring himself within the requirements of the statute, it is almost universally held that a provision in the statute creating the right, requiring an action thereon to be brought within a specified time, is more than an ordinary statute of limitations and goes to the existence of the right itself. It is a condition attached to the right to sue at all."

And more specifically, from an old but still authoritative case, Conant v. Griffin, 48 Ill. 410 (death by shooting):

“It is apparent from the rulings, that the condition of the defendants, as to wealth, could not be taken into consideration by the jury in arriving at the measure of compensation for the pecuniary loss, for, was their wealth great or small, it did not in any manner increase or diminish the pecuniary loss sustained by the parties complaining. This action is the creature of the statute, and must be governed entirely by its provisions, and as they only provide for compensation for the pecuniary loss, the evidence should be confined exclusively to that. The damages should be compensatory or approximate thereto but not vindictive or exemplary.”

Assuming a violation of this rule of the Commerce Commission and that defendant railroad’s “act or omission was wilful”, this section of the Utilities Act does not engraft itself to par. 2 of the Wrongful Death Act and give to the personal representative an additional measure or criteria for damages, in this case, punitive damages. A violation of this rule may be evidence of negligence or indeed of wilful or wanton misconduct but the Utilities Act does not and cannot amend this statute that we must strictly construe, and thereby allow an award of punitive damages — “for the sake of example, and by way of punishment”. The Wrongful Death Statute is ever so clear as to the measure of damages — they are strictly compensatory — “pecuniary injuries”.

We take it that the decedent in Conant, had he lived, could have maintained his action for punitive damages in addition to other damages properly awardable in an action for personal injuries — but that he lost the right to such at the moment of death — and this for the very simple reason that the statute delimits the measure of damages to compensation for pecuniary injuries and then only for a certain class of persons.

The jury returned two general verdicts, each, as we have said, for $100,000. Plaintiffs say that under the evidence the verdicts were not excessive, and therefore, there is not even an implication that the award encompassed at least in part punitive damages. After all, they say, the jury was instructed that if liability was present, they “must” fix the amount which would reasonably compensate the parents for the pecuniary loss sustained”, while the instruction complained of merely said that the jury “may in addition to the actual damages, award damages for the sake of example, and by way of punishment”. In other words since the jury was told that they must award actual damages but had an option as to punitive damages, we should assume that they opted for the mandatory determination. But this hardly answers the question, since they were permitted “in addition” to award punitive damages. Even though the verdict may have been within the range of the testimony, the fact is that we cannot determine whether or not punitive damages did in fact make up a part of the verdict. We cannot exclude that probability. It follows that we cannot consider the instruction as harmless. An issue is made here by defendant that the verdicts are excessive, hence attributable in part, to the instruction authorizing punitive damages. Accordingly, we cannot say that the jury was not misled in arriving at the verdicts they returned, and if this is so, the matter must be retried, but only on the question of damages, for we have concluded that as to the other errors alleged they do not warrant a new trial.

These alleged errors, involving the issues of contributory negligence, willful and wanton misconduct, and whether the crossing was extra hazardous, presented questions of fact which have been answered by the jury in their verdict. An additional asserted error as to the use and admission of certain photographs by plaintiff is without merit. Accordingly, since the issue of liability has been decided and the jury had a right to so decide as they did, the plaintiffs should not be burdened with a retrial of these issues. This matter is therefore remanded to the trial court with directions to enter judgment for plaintiffs on the issue of liability and a new trial is granted on the question of damages.

Reversed and remanded with directions.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Eastland, a/k/a Nolan Brown, Jr., a/k/a Nolan Gene Brown, a/k/a Willie Fouther, III, Defendant-Appellant.
    (No. 11895;
    Fourth District
    May 9, 1973.

      John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel), for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Patrick M. Walsh, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-Appellant Charles Eastland, a/k/a Nolan Brown, Jr., a/k/a Nolan Gene Brown, a/k/a Willie Fouther, III, was indicted for theft of property of value exceeding $150 in violation of Ill. Rev. Stat. 1969, ch. 38, sec. 16-l(a) (1). The indictment charged the defendant with theft of a 1972 Oldsmobile 98, four-door sedan in that he “* # * knowingly exerted unauthorized control * * *” over the vehicle, “* # <* intending to deprive said owner permanently of the use or benefit of said property * * Defendant was convicted, after trial by jury, and sentenced 2 to 6 years.

The jury returned the following verdict, ‘We the jury, find the defendant, Nolan Brown, Jr., guilty of Theft of Property.” Defendant asserts error in the sentence imposed since there was no finding by the jury that the value of the property was in excess of $150. Defendant did not object to the form of verdict during the conference on instructions, nor was the contention raised in the post-trial motion, and the question is not preserved for appeal. We note, however, that no issue was raised, during the trial, as to the value of the automobile. Also, the jury was instructed that defendant was charged with theft of property exceeding $150 in value, and under the rule of People v. Harden, 42 Ill.2d 301, 247 N.E.2d 404, there was no error.

Defendant also contends that it was error to give Peoples Instructions Nos. 12 and 13, which are I.P.I. Criminal 13.01 and 13.02. We have heretofore set out the allegations of the indictment which contained the language of the statute set forth in chapter 38, section 16-1 (1) to the effect that the defendant intended to deprive the owner permanently of the use and benefit of the property. The two instructions in question also contained the language set forth in sub-par. (3) of the statute which contains the words “* * * conceals, or abandons # # jje argues that instructions given should be confined to the facts and the law in the case. In view of the evidence adduced the jury could not have been misled by the instructions. There was no evidence of “concealment or abandonment” and no substantial error occurred. In addition, no objection was made to the instructions at the time of the instruction conference nor was there alleged error raised in the post-trial motion and the point is not properly preserved for review. People v. LeMay, 35 Ill.2d 208, 212, 220 N.E.2d 184.

Defendant also complains of a question asked him by the State’s Attorney. The exchange between the State’s Attorney and the defendant which led up to the question are as follows:

“Q. Well, if you weren’t in your right mind and you can’t remember anything how are you able to say that you didn’t take it?
A. I just know I didn’t take it.
Q. How do you know?
A. I know I didn’t.
Q. Well how?
A. How do you know I did?
Q. I know you did, Mr. Eastland, but you are on trial. I am asking how you know you didn’t take it?
A. I know I didn’t take that car.”

Defendant argues that the words “I know you did, Mr. Eastland * * *” was prejudicial since the jury might have concluded that the State’s Attorney had private knowledge of the defendant’s guilt. We observe that no objection was made to the question nor was the point raised in defendant’s post-trial motion and the alleged error is not preserved for review. Additionally, in People v. Williams, 26 Ill.2d 190, 193, 186 N.E.2d 353, the State’s Attorney in his opening statement and in closing argument stated his own opinion of defendant’s guilt, as follows: “I am sure that after you have heard this case, you will feel as we do that defendant is guilty as charged”, and further stated to the jury “* * w I think that when you go back tihere, you will reach the same conclusion that we have reached, and that is that Eddie Williams is guilty of the charge cf murder.” In disposing of defendant’s contention that the rule prohibits a State’s Attorney from expressing his personal opinion of guilt and that such violation required reversal, the court said, “It is, however, proper for a prosecutor to argue or express an opinion that the accused is guilty, where he states, or it is apparent, as was true in this case, that such opinion is based solely on the evidence.” Here the evidence of guilt is overwhelming and the question did not constitute reversible error.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Oscar Roy Ratliff, Defendant-Appellant.
    (No. 72-128;
    Second District
    May 11, 1973.
    Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Gerry Dondanville, State’s Attorney, of Elgin, (Leo Wotan, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. PRESIDING JUSTICE GUILD.

text:
    Dorcie Craig, Plaintiff-Appellee, v. Oreadis Craig, Defendant-Appellant.
    (No. 72-177;
    Second District
    May 11, 1973.
    Berry & Simmons, of Rockford, for appellant.
    No appearance for appellee.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert E. Williams, Defendant-Appellant.
    (No. 73-17;
    Fifth District
    May 8, 1973.

      Robert E. Williams, pro se.

    No appearance for the People.
   PER CURIAM:

Appellant pleaded guilty to a charge of deceptive practices and was sentenced May 14, 1970. After sentencing in Illinois, he was returned to federal authorities in Georgia to serve a previously-imposed sentence based on charges not related to the instant case. Subsequently, a detainer on the Illinois charge was filed with the federal authorities.

In September, 1972, appellant filed in the circuit court a pro se document styled “MOTION TO VACATE JUDGMENT AND SENTENCE.” The motion, which was verified under oath, alleged that appellant had requested counsel at trial but none had been made available, that the State’s Attorney had made illusory and unfulfilled promises to induce the plea, and that appellant was not made aware of the consequences of his plea before judgment was entered. Appellant’s motion specifically requested relief from a judgment obtained in violation of his constitutional rights.

No counsel was appointed for appellant; the circuit court “* * # finding * * * that said Motion was filed more than 30 days following the said Order and Judgment * * * [of May 14, 1970] * * dismissed the motion.

The record before us shows only that the trial court considered the caption of the motion as determinative of the jurisdiction of the court and the treatment to be afforded appellant’s claims. There is no indication that the substance of the document was considered, even to the extent of finding it to be insufficient as a post-conviction petition.

The application of the doctrine that pleadings should be liberally construed toward the end of accomplishing substantial justice is particularly crucial in cases where the pleading party is unable to avail himself of the assistance of counsel. It is axiomatic that the vast majority of inmates of penal institutions are, by the direct effects of incarceration, rendered unable physically or financially to consult with counsel unless assisted by the courts. The dangers of exaltation of form over substance in determination of such cases are minimized by the normal procedure of appointment of counsel for preparation of an amended post-conviction petition after a prima facie case has been alleged.

The order of the circuit court dismissing the motion is reversed, and the cause is remanded with directions to treat the motion as a petition for post-conviction relief.

Reversed and remanded with directions.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harris Duncan Byers, Defendant-Appellant.
    (No. 71-160;
    Fifth District
    May 9, 1973.

      Kenneth L. Jones, of Defender Project, of Mt. Vernon, (Robert E. Farrell, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, Harris Duncan Byers, has appealed from a judgment of conviction entered by the Circuit Court of St. Clair County, following a finding of guilty by a jury of the offense of rape.

The defendant raises the following issues in this appeal: (1) Was the written confession of the defendant properly admitted; (2) Was the witness identification of the defendant proper; (3) Was the court’s examination of a defense witness proper and reasonable; (4) Was a clergyman properly called and examined as a rebuttal witness; (5) Was the defen- I dant proved guilty beyond a reasonable doubt; and (6) Was the sentence imposed excessive.

Recent Illinois decisions have set forth criteria to determine the admissibility of a confession. The prosecution has the burden of proving the voluntariness of a confession by a preponderance of the evidence; the trial court need not be convinced beyond a reasonable doubt. (People v. Jackson, 41 Ill.2d 102, 242 N.E.2d 160.) The trial courts finding on j the voluntariness of a confession will not be disturbed unless it is con- ' trary to the manifest weight of the evidence. (People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343, cert. denied, 400 U.S. 958.) We have examined the record, considered defendant’s contentions and taken into account the totality of the circumstances. On the basis of such circumstances the finding of voluntariness of the confession is not contrary to the manifest weight of the evidence.

We likewise have examined the record with reference to the contention that the in-court identification of defendant was tainted by an improper police station show up. Considering the entire record with reference to the prosecutrix’s in-court identification, and noting the possibility of a staged show up, and the accuracy of prosecutrix’s description of the defendant’s clothing, age and hair style we cannot say that the court erred in refusing to suppress the identification.

It is well settled law in this State that the court is not required to sit mute and that the trial court may question a witness in order to elicit the truth or to bring enlightenment on material issues which seem obscure. (People v. Palmer, 27 Ill.2d 311, 314, 189 N.E.2d 265.) The propriety of each examination by the court must be determined by the circumstances of each case and rests largely in the discretion of the trial court. (People v. Parker, 129 Ill.App.2d 43, 262 N.E.2d 751 (abstract opinion).) Although the court’s examination consisted of but two pages of a 400-plus page record, we feel that the court exceeded its discretion. As stated in People v. Sprinkle, 27 Ill..2d 398, 402-403, 189 N.E.2d 295, 298:

“As we said in People v. Marino, 414 Ill. 445 at 450: ‘While the court has a wide discretion in the conduct of a trial, it must not invade the province of the jury by making comments, insinuations or suggestions indicative of belief or disbelief in the integrity or credibility of a witness. [Citing cases]. In all criminal prosecutions, the accused persons, guilty or innocent, are entitled to a fair and impartial trial by jury. A fair trial contemplates that the jury will, alone, fulfill its duty of determining the facts, and it is not the province of the judge, in a criminal case, to express by word or indicate by conduct, in the jury’s hearing, any opinion upon the facts. [Citation.] While it is true that a judge has a right to question witnesses or call other witnesses to the stand in order to ascertain the truth or to bring enlightenment on material issues which seem obscure, he must do it in a fair and impartial manner, without showing bias or prejudice against either party. [Citation.] Jurors are ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight, thus his lightest word or intimation is received with deference and may prove controlling. In a criminal trial, a hostile attitude toward an accused, or his witnesses, is very apt to influence the jury in arriving at its verdict.’ See also People v. Santucci, 24 Ill.2d 93, 98; People v. Wesley, 18 Ill.2d 138, 154, cert. den. 364 U.S. 845, 5 L.Ed.2d 69, 81 S.Ct. 87.”

We are compelled to conclude that there was an abuse of discretion in posing questions which suggested that the witness was not worthy of belief, or was unable to accurately recall the events.

Subsequent to the defendant’s arrest he was afforded the opportunity to speak with a minister. At the hearing on the motion to suppress the confession, defense counsel asked the minister: “How many different versions of what transpired were given?”, to which the witness answered, “Half a dozen maybe different aspects of what happened”. As far as we can determine from the record this was in reference as to what happened to defendant while he was in custody.

At the trial the minister was called as a witness by the defendant but did not testify to any conversation, only that he saw defendant while he was in jail. After the defendant had testified concerning his whereabouts at the time of the alleged rape and closed his case, the State called the minister in rebuttal and propounded the following question to him, “s # # how many different versions of what transpired has he told you”. Defense counsel immediately objected that the province of the jury was invaded and moved for a mistrial. The court denied the motion and overruled the objection and the witness was permitted to reply to the effect that the defendant had related more than one version of what had transpired. When asked, “How many different versions?”, defense counsel again moved for a mistrial and made the same objection. The court again overruled the objection and permitted the witness to answer, “There were several, I can’t say how many but three, four, five, I don’t know, stories that he told me what happened and why it happpened, and things I heard later on.” Defense counsel again moved for a mistrial and the court ruled “* * * it goes to the credibility of the defendant. It is proper. This man is a witness for the defendant.” At no time was the minister-penitent privilege claimed by either the witness or defendant.

In the post trial motion the defense urged that the court erred in permitting the minister to testify in direct violation of the minister-penitent privilege. In this appeal defendant argues there was a violation of that privilege which was prejudicial. Whatever privHeges the defendant may have had as to his conversations with tire minister were waived; in the hearing on the voluntary character of the confession when the defendant called the minister to testify as to conversations between the minister and defendant regarding the treatment of defendant while in custody, and in the trial when the privilege was not claimed by either the minister or the defendant.

However in our opinion, plain error occurred when the minister was allowed to testify on rebuttal that defendant had given numerous versions of “what happened and why it happened”. The apparent purpose of the testimony was to impeach the defendant by proof of prior inconsistent statements. The fault we find in the testimony permitted is that the province of the jury, in its determination of the facts, has been invaded by permitting the witness to testify to the conclusion that the defendant had been inconsistent in his statements. That conclusion is for the jury to make and can only be made after hearing the testimony of the substance of the alleged inconsistent statements.

No foundation was ever laid for the introduction of such evidence by the presentation of evidence of the substance of any conversation. While it is competent to show as a matter of impeachment that a witness made a statement outside of court, concerning material matters, inconsistent with his testimony on the witness stand, such evidence is only proper after a foundation has been laid. (People v. Perri, 381 Ill. 244, 44 N.E.2d 857.) That foundation consists of calhng the witness’ attention to the aHeged prior inconsistent statement, the time and place of its making, and the persons involved, and asking him whether he ever made such a statement. (Whartons Criminal Evidence, 12th ed. § 918.) iHinois courts have held that it is permissible to recall a witness for the purpose of laying a foundation for impeachment. People v. Ladas, 12 Ill.2d 290, 146 N.E.2d 57.

Since we conclude from the foregoing that defendant did not receive a fair trial and is entitled to a new trial, we need not consider the remaining issues raised on appeal.

Reversed and remanded.

G. MORAN and JONES, JJ., concur.


author: Mr. JUSTICE ENGLISH

text:
    Time, Incorporated, Plaintiff-Appellant, v. The Department of Revenue et al., Defendants-Appellees.
    (No. 57214;
    First District (5th Division)
    March 16, 1973.

      Price, Cushman, Keck & Mahin, of Chicago, (Robert S. Cushman and Richard J. Raskin, of counsel,) for appeUant.
    William J. Scott, Attorney General, of Chicago, (Warren K. Smoot and Paul J. Bargiel, Assistant Attorneys General, of counsel,) for appellees.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

This is an appeal by plaintiff, hereinafter Time, from a judgment on administrative review entered in the circuit court in favor of defendants, upholding a determination by the Department of Revenue that plaintiff owed $98,997.26 for Illinois use taxes, including statutory penalties and interest.

The use tax was levied on the purchase price of paper products manufactured out of State and shipped by common carrier to Time in Illinois. The finished unprinted paper was temporarily stored in Time’s Chicago warehouses, then cut to letter size, cut or formed into envelopes and subscription order forms, and then printed to make complete letters, envelopes and subscription order forms. The completed envelopes, letters, forms and return envelopes were than sent to Chicago letter shops where they were “stuffed” into the mailing envelopes and sent by mail to persons outside Illinois. (The use tax on paper used to mail the same letter, forms, etc., to residents of Illinois was paid in full and is not at issue in this case.)

The letters were used for solicitation purposes, notifying subscribers that their subscriptions were about to expire, mentioning reasons why they should continue receiving the magazines, and asking them to mail back the enclosed order form at once in the envelope furnished for that purpose.

On February 11, 1971, a hearing was held on plaintiffs protest of tax liability. The hearing officer found that' the use, i.e., cutting, printing and folding, of promotional paper occurred entirely within Illinois and thus constituted a taxable use under Illinois law. Further, he found that the use and conversion of the paper into advertising material and its mailing completely removed Time from the temporary storage exemption of the statute. On February 28, 1972, following a hearing on administrative review by the circuit court, an order was entered by that court incorporating the opinion of the hearing officer into a final judgment in favor of the Department of Revenue. From that judgment plaintiff has appealed.

OPINION

Time concedes that its processing of the paper in question constituted a use within the meaning of the Use Tax Act but not a taxable use. It contends (1) that the plain language of one of the provisions of the Act exempts the transaction in this case from taxation, and (2) that the trial court’s decision renders Illinois printers and manufacturers non-competitive with those in other major industrial states.

The Use Tax Act (Ill. Rev. Stat. 1969, ch. 120, par. 439.2), enacted as a complement to the Retailer’s Occupation Tax Act “to prevent evasion of the tax that applies when retail purchases are made within the State, and to protect the local retail merchant against diversion of his business to out-of-State sellers” (Turner v. Wright, 11 Ill.2d 161, 142 N.E.2d 84), defines “use” as “the exercise by any person of any right or power over tangible personal property incident to the ownership of that property * * Section 439.3 of the Act, relied on by Time, exempts certain property stored temporarily in Illinois after being brought from outside the State, and provides in its pertinent parts:

“To prevent actual or likely multistate taxation, the tax herein imposed does not apply to the use of tangible personal property in this State under the following circumstances:
# # #
(d) the temporary storage, in this State, of tangible personal property which is acquired outside this State and which, subsequent to being brought into this State and stored here temporarily, is used solely outside this State or physically attached to or incorporated into other tangible personal property that is used solely outside this State.” Ill. Rev. Stat. 1969, ch. 120, par. 439.3.

Time contends that the trial court misapplied the statute by reasoning, on the basis of the section’s prefatory language, that before a taxpayer can take advantage of the exemptions set forth in Section 439.3 quoted above, he must show that his case, if not exempted, “invokes or is likely to invoke multistate taxation.” We agree with Time that such a showing is not necessary and that the only requirement is for the taxpayer to establish that he meets the standards set forth in any one of the exclusions (in this case, those of paragraph (d)), and he does not assume the burden of demonstrating that multistate taxation will result if the exclusion is not granted. We take the phrase, “To prevent actual or likely multistate taxation s * *” to be a statement expressing the statutory purpose in file granting of exclusions and not one imposing a burden of proof upon a taxpayer who would, without such proof, come within one of the four specific exclusions.

Time’s argument concerning Section 439.3(d) is a very narrow one. The paragraph relates to two separate factual situations. The first is the broad exclusion of property temporarily stored in this State which is then “used solely outside this State.” Time makes no claim under this | language since, as mentioned above, it concedes that the paper was used by it in Illinois through the processing into letters, envelopes, etc. It does argue, however, that its transaction is exempt from taxation because the blank stock paper was “incorporated into other tangible personal property” (envelopes, letters and order forms) which were then “used solely outside this State” by recipients out of state. More specifically, it is claimed that once the paper was printed and mailed, the “use” of the paper occurred solely outside the State when recipients of the letters opened and read them, decided whether to continue the subscription, and mailed the return envelope after filling out the form, or simply disposed of the letter and the requested subscription form.

To reach this conclusion, Time must, and does, contend that the unfinished paper was “incorporated into” the letters, forms and envelopes. In support of this contention, Time cites three cases from other jurisdictions which it relies upon to support its interpretation of the meaning of the word “incorporated.” These cases are Diamond Oil Well Drilling Co. v. Purser, 256 S.W.2d 421 (Tex. Civ. App. 1953); Tempe Union High School Dist. v. Hopkins, 76 Ariz. 228, 262 P.2d 387; and Comptroller v. American Cyanamid Co., 240 Md. 491, 214 A.2d 596.

Diamond Oil Well Drilling Co. v. Purser, 256 S.W.2d 421 (Tex. Civ. App. 1953), was a personal injury action where the corut held that plaintiff s affidavit controverting defendant’s plea was sufficient because plaintiff s first amended petition was incorporated into the affidavit. We cannot disagree with that result since there were two documents which were incorporated into one, i.e., the affidavit became a part of plaintiffs original petition. It was not, as in the present case, the processing of one product into another form.

Tempe Union High School Dist. v. Hopkins, 76 Ariz. 228, 262 P.2d 387, was a mandamus action against the school district to compel the board to renew a teacher’s contract. The court held that a written dismissal notice not incorporating reasons for dismissal was void. However, immediately following the dictionary quotation in the case, which was quoted and relied upon in Time’s brief, the court stated as its conclusion: “There must be a corpus before anything can be incorporated into it.”

In Comptroller v. American Cyanamid Co., 240 Md. 491, 214 A.2d 596, the court upheld the imposition of sales tax on a manufacturer of adhesives which used honeycomb cores and aluminum panels to test its adhesive product. The court held that the cores and panels were not used or incorporated into other tangible personal property which was then sold by the defendant, but were used for testing purposes only, and upon conclusion of the testing procedure were good only for scrap.

We consider all three of these cases to be basically distinguishable from the statutory interpretation Time would have us adopt.

Webster’s Third New International Dictionary, at page 1145, defines “incorporate” as “to unite with or introduce into something already existent * ” If this general meaning is accepted, as it was by

the trial court, it is obviously too restricted to encompass the change which has occurred to the paper in this case, since it implies that a separate product must already exist at the time when the processed paper is united with or introduced into it. In the instant case, however, it was only the stock paper which existed at the time of the alleged incorporation, and the same product was merely processed into another form and not joined in any way with “other tangible personal property.”

Other states have anticipated this problem by providing similar exemptions from taxation when tangible personal property is processed, fabricated, manufactured or printed, as well as incorporated into or attached to other property already existing.

As an example, the California statute (Cal. Rev. & Tax Code, Sec. 6009.1), excludes from use tax under similar circumstances property which is “processed, fabricated, or manufactured into, attached to or incorporated into, other tangible personal property to be transported outside the state and thereafter used solely outside the state.” (Emphasis added.)

The Massachusetts statute (Mass. Gen. Laws Ann., ch. 641, sec. 1 (1971) reads:

“‘Store’ and storage’, and ‘use’ shall not include the keeping, retaining, or exercising any right or power over tangible personal property for the purpose of subsequently transporting it outside the commonwealth for use thereafter solely outside the commonwealth or for the purpose of being processed, fabricated or manu factured into other tangible personal property to be transported outside the commonwealth and thereafter used solely outside the commonwealth.” (Emphasis added.)

Quite similar words are included in the Connecticut statute:

“ ‘Storage’ and use’ do not include keeping, retaining or exercising any right or power over tangible personal property shipped or brought into this state for the purpose of subsequently transporting it outside the state for use thereafter solely outside the state, or for the purpose of being processed, fabricated or manufactured into, attached to or incorporated into, other tangible personal property to be transported outside the state and thereafter used solely outside tire state.” (Emphasis added.) Conn. Gen. Stat. Ann. Sec. 12—407(6) (1972).

And this question probably would not have arisen under the New York statute, cited by Time, because of the obvious difference in relationship between the parties concerned. The words employed in stating i the exemption are of interest, however, since they specifically cover processes which we believe the Illinois statute does not. Sections 1105(c) (2) and 1115(d) of McKinney’s Consolidated Laws of New York provide exemptions from sales tax as follows:

“1105(c) (2) Producing, fabricating, processing, printing or imprinting tangible personal property, performed for a person who directly or indirectly furnishes the tangible personal property, not purchased by him for resale, upon which such services are performed. [Emphasis added.]
1115(d) Services otherwise taxable under paragraphs (1), (2), or (3) of subdivision (c) of section eleven hundred five shall be exempt from tax under this article if the tangible property upon which the services were performed is delivered to the purchaser outside this state for use outside this state.” (Emphasis added.)

Although the Illinois statute might logically have included such language in our legislation, without it we cannot infer that the legislature intended “incorporation into other tangible personal property” to cover fabricating, manufacturing, printing, or processing (all being terms covered by the statutory exemptions in the other states referred to). We therefore cannot conclude that our statute was inferentially intended to cover that which was done in the present case.

Next, Time also argues that the use of the paper occurred solely outside Illinois, as required by the clause it relies on in Section 3(d) of the Act. If we were to assume (which we do not), that the paper in question were shown to have been “incorporated into other tangible personal property,” the claimed exemption would still not apply unless it were also shown that the property as thus processed had been “used solely outside this State.” We think there has been no such showing.

In Acme Printing Ink Co. v. Nudelman, 371 Ill. 217, 20 N.E.2d 277, the court construed the Retailer’s Occupation Tax Act which was later supplemented by the Use Tax Act here considered. (Caterpillar Tractor Co. v. Dept. of Revenue, 47 Ill.2d 278, 265 N.E.2d 675; Boye Needle Co. v. Dept. of Revenue, 45 Ill.2d 484, 259 N.E.2d 278.) The printing ink companies argued that ink sold to printers and lithographers was not used or consumed, but was resold in another form as an integral part of printed matter. The comt held that printers and lithographers are users or consumers of the printing ink which they use in the production of their printed materials. Alluding to the case of Herlihy Mid-Continent Co. v. Nudelman, 367 Ill. 600, 12 N.E.2d 638, the comt stated:

“Since ink once used in printing, just as cement use in concrete, can never be used again for that purpose, it has been consumed within the meaning of the statute. Revzan v. Nudelman, 370 Ill. 180, 18 N.E.2d 219.”

In the present case, although letters and envelopes are still paper products, it is apparent that they cannot be returned to their original condition as plain uncut paper without complete reprocessing.

Time cites in its brief the case of United Air Lines, Inc. v. Mahin, 49 Ill.2d 45, 273 N.E.2d 585, probable jurisdiction noted in 405 U.S. 986, 92 S.Ct. 1249, but asserts that it does not control this case because it did not deal with the question of incorporating tangible personal property into other tangible personal property. We agree.

There are, of course, other uses which courts have construed as the “exercise * * * of right or power over tangible personal property” which do not require that the nature of the product be changed. One type is the lessor-lessee cases where a lessor may be taxed for the operation of equipment by an Illinois lessee on the theory that the lessor has exercised powers of ownership by leasing the property to another who has only the right to possession and not the right of ownership. As stated in William O’Donell, Inc. v. Bowfund Corp., 114 Ill.App.2d 107, 252 N.E.2d 53, “The use tax is not a tax which arises out of the use or operation of tangible personal property, but rather it is a tax placed upon the exercise of powers or rights incident to ownership.” See Philco Corp. v. Dept. of Revenue, 40 Ill. 312, 239 N.E.2d 805, and Miller Brewing Co. v. Korshak, 35 Ill.2d 86, 219 N.E.2d 494.

Therefore, mere use without rights of ownership cannot be taxed, but the exercise of power over personal property incident to ownership therefor which converts the product into another form or prepares it for conversion, or which uses the property for the promotion or solicitation of business, is a taxable use in Illinois. In the present case, we agree with the trial court that from the moment temporary storage ended, Time, as it concedes, first made use of the paper within the state by printing and processing it into specified material. Then, however, there followed a second use by Time in the promotion of its business. The second use occurred when the solicitation letters were mailed from Illinois and the return addressed envelopes and subscription cards were returned to Time’s Chicago headquarters and processed into subscriptions. Although Time’s second use of the paper might be considered as having been briefly interrupted by a use of the material on the part of its recipients, Time’s continuing and final exercise of ownership occurred when the return envelopes and cards were received by Time in Chicago and processed into subscriptions. None of the uses to which Time subjected the paper occurred solely outside Illinois. Its use, therefore, cannot be exempt from taxation. And since none of Time’s use occurred outside Illinois, we need not consider the collateral point made in the briefs as to whether the out-of-state use required by the statute need be by the same person who temporarily stored the property within the state.

Finally, Time contends that an affirmance of the trial court’s ruling will render IUinois printers and manufacturers non-competitive with those in other major industrial states. Numerous statutes from other jurisdictions are cited to demonstrate that this type of use would be exempt from taxation. We have quoted a number of those statutes above. If our interpretation of the Illinois statute renders certain industries in this state non-competitive with those in other areas of the country, it is for the legislature and not the courts to reconsider its position with a view to correction through appropriate legislation. We have no reason to believe that such a proposal in the instant situation would not receive a favorable legislative response.

The judgment of the trial court is affirmed.

Affirmed.

DRUCKER, P. J., and LORENZ, J., concur.

       Since the briefs were filed in the instant case, the United States Supreme Court has handed down its opinion in United Air Lines remanding the cause for further consideration by the Illinois Supreme Court, 41 LW 4378, 3—6—73. In our opinion, however, the result will not be controlling of Time’s case no matter how it may ultimately be decided.


author: Mr. JUSTICE STOUDER

text:
      In re Application of County Collector—(County Collector of Rock Island County, Plaintiff-Appellee, v. Redco, Inc., Defendant-Appellant.)
    (No. 72-289;
    Third District
    May 11, 1973.
    James J. Gende, of Moline, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

The County Collector of Rock Island County made an application for judgment for delinquent taxes on real property for the year 1966 in the Circuit Court of Rock Island County. Redco, Inc., Defendant-Objector-Appellant, having paid the taxes levied on the property under protest, filed objections which alleged that the assessed valuation of its property was excessive, discriminatory and fraudulent. On motion of the collector, the objections were stricken and judgment entered for the collector for the full amount of taxes as levied.

For tax purposes, on January 1, 1965, the assessment on 47.57 acres of property owned by the objector was $12,689 which is approximately $267 per acre. Shortly thereafter, approximately one quarter of this property or 12.57 acres was platted as Rock View Estate Third Addition, the plat being filed in December of 1965. Also during 1965, the land in this subdivision was roughly graded. The assessment on January 1, 1966 for the platted land was $68,230 which is approximately $5,428 per acre, while the assessment for the adjacent non-platted acreage remained nearly the same as it was the prior year.

On this appeal brought by the objector, Redco, Inc., the issue presented is whether the appellant is entitled to seek direct judicial relief without first having pursued administrative remedies before the board , of review. I

It is well established that the courts, in the absence of fraud, have no power to review or determine the value of property fixed for purposes of taxation by the administrative officer and mere overvaluation is not sufficient to establish fraud. (People ex rel. Nordlund v. Lans, 31 Ill. 2d 477, 202 N.E. 543, and People ex rel. Callahan v. Gulf, Mobile and Ohio R.R. Co., 8 Ill. 2d 66, 132 N.E. 2d 544. See, People ex rel. Tedrick v. Allied Oil Corporation of Illinois, 388 Ill. 219, 57 N.E. 2d 859.) The objector does not set forth facts alleging actual fraud, rather it states facts claiming that the assessment was excessive. In the Lans case, the court stated that under section 108 of the Revenue Act (Ill. Rev. Stat., ch. 120, sec. 589) objectors have an adequate remedy to have an assessment, if excessive, corrected before the board of review whether it was made fraudulently or otherwise.

It was stated in Sanitary District of Chicago v. Young, 285 Ill. 351, 120 N.E. 818, that the whole matter of valuation of property for taxation should be under the control of the assessor, the board of review and tire boards of supervisors of the counties and a taxpayer aggrieved by excessive valuation, fraudulent or otherwise, should seek relief through the board of review.

It is urged by the objector that the case of People ex rel. Cain v. Illinois Central R.R. Co., 33 Ill. 2d 232, 210 N.E. 2d 516, is controlling. We do not agree. In that case tire taxpayer was a railroad whose property was assessed by the Department of Revenue at 100 percent of full fair cash value. It complained that locally assessed property was assessed and equalized at a level not exceeding 50 percent of the full fair cash value and this constituted fraudulent discrimination. The court said that the railroad was not attacking the amount of an original assessment, rather it was attacking the allegedly discriminatory multipliers which were applied to the locally assessed property, and for this reason the exclusive remedy was not under the Administrative Review Act and the taxpayer could, therefore, file objections in the circuit court.

The objector claims that in the present case an illegal multiplier was applied to the platted property and that there was improper equalization. We fail to find any facts to support this allegation. The facts merely show that the property in question was allegedly overvalued for taxation purposes which resulted in an assessment claimed to be excessive. There is no reason to depart from the well established rule that the objector must exhaust his administrative remedies prior to seeking judicial relief.

Accordingly, the judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Pulley, Defendant-Appellant.
    (No. 71-62;
    Third District
    May 14, 1973.

      STOUDER, J., dissenting.
    John L. Barton, of Marseilles, for appellant.
    Ludwig J. Kuhar, Assistant State’s Attorney, of Joliet, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

David Pulley was found guilty of attempted murder in a cause tried by a jury and was sentenced by the circuit court of Will County to a term in prison of not less than seven nor more than fifteen years. The jury was unable to reach a verdict on an additional charged offense of armed robbery.

On appeal in this court, defendant Pulley seeks reversal on five separate grounds. Pulley contends (1) that the court instructed the jury on the elements of attempted murder but failed to instruct the jury on the elements of murder; (2) that the court failed to instruct the jury on elements of self-defense which defendant contended was his theory of defense at the trial; (3) that defendant Pulley did not receive effective assistance from his court-appointed counsel; (4) that the court improperly denied the jury’s request that some of the testimony be read to them when the court did not first seek to determine the reasonableness of the request; and (5) that defendant was denied his right to a trial by jury when there was a written communication between the judge and jury outside of the presence of the defendant.

It appears from the record that on December 19, 1970, two men committed an armed robbery of a clothing store. The police arrived in time to find one robber still in the store. Three policemen chased the robber from the store to an alley, down a street and into another alley. There they lost sight of him for a matter of a few seconds, but when two of them cut across the same alley in the backyard they both observed a man standing in the shadow near a house dressed in the same type of clothes as the man they had been chasing. This man was David Pulley.

The policemen testified that one approached defendant Pulley and said, “Halt, police.” Pulley responded by shooting at one of the policemen and wounding him in the stomach. Both policemen testified that one policeman shot back, and that the bullet wounded Pulley, causing Pulley to fall wounded to the ground. One of the policemen then asked Pulley for his gun, and Pulley replied, “I’m getting it for you, you mother f----” (obscenity).

Pulley contends that he was an innocent bystander and that he apparently found himself caught between pursuing policemen and a pursued robber. He said he dodged between houses to let the police pass. One policeman followed him, however, he said, and without warning, shot at him. Pulley was hit in the hip and leg, spun around, and fell to the ground. He then said, “By that time I had my gun out. So I fired my gun one time, that I know. I don’t know if I fired at * # * I don’t think I fired it twice but I remember firing it one time. I wasn’t trying to kill the man or nothing now, but I was just trying to get him off, some of his relief off me.”

It is apparent from the record that the attorney for defendant did not tender instructions with respect to self-defense and that he did not object to the instructions which the court gave to the jury. Defendant also failed to interpose any objections at the conference on instructions. This constitutes a waiver of any objection which then might have been made. (Irwin v. Omar Bakeries, Inc., 48 Ill.App.2d 297, 198 N.E.2d 700; Smelcer v. Sanders, 39 Ill.App.2d 164, 188 N.E.2d 391.) A court of review will not review such objection when it is interposed for the first time on appeal. An appellant likewise will not be heard to complain of the court’s failure to give an instruction if he failed to tender it to the trial court. We do not believe that a trial court is required, sua sponte;, to propound other instructions in a situation such as disclosed in this case.

Defendant contends that his court-appointed counsel was incompetent in not objecting to the court’s failure to instruct on the elements of murder and in not tendering instructions on the element of self-defense or arguing such theory to the jury. The contention, basically, is that defense counsel was incompetent to the extent that defendant has been denied due process of law. We do not believe the record supports defendant’s contentions in this respect nor with respect to objections as to the instructions referred to.

The instruction which was tendered with respect to attempted murder was taken from Illinois Pattern Jury Instructions — Criminal 6.05 — Attempt. The instruction, therefore, read:

“A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder. The crime attempted need not have been committed.”

The Supreme Court of this State in People v. Gersbacher, 44 Ill. 2d 321, 325, 255 N.E.2d 429, 432, considered a similar issue and refused to reverse the judgment and conviction on the same contention as made in this court. In such case, the Supreme Court said:

“Although it would have been preferable to instruct the jury on the elements of the crime attempted, after reviewing the record before us, we find that the evidence presented to the jury regarding the attempted murder was such that no error was occasioned by the failure of the court to give an instruction in this regard.”

In the cause before us, the record establishes that defendant, without lawful justification, shot at the policeman with the intent to kill or do great bodily harm to him, or at least with the knowledge that his act would cause death or a strong probability of great bodily harm or death. We, therefore, believe there is no basis for reversal relating to the instruction given with respect to attempted murder. We have noted that the defendant’s attorney failed to object to it. Similarly, there is no reversible error in failure to give an instruction on the issue of self-defense. Defendant’s attorney tendered no such instruction. The trial attorney representing defendant apparently decided that it would be poor trial tactics to argue self-defense to the jury or to tender an applicable instruction.

Defendant’s contentions with respect to all the errors assigned revolve about a contention that he did not receive effective assistance from his court-appointed counsel. Some point is made of the failure of defendant’s attorney to pursue the motion to suppress the defendant’s obscene statement made to the arresting officer. The police officer obviously had the right to complete the valid arrest and to take the gun from the person of defendant who had just used it to shoot another policeman. While there would be no basis for reversal in the event the motion with respect to the statement was rejected we note that the defense counsel in the cause before us did pursue the motion to suppress the defendant’s obscene statement, and that the trial court did in fact direct the jury to disregard the statement.

There is no showing in the record that defendant’s counsel was so incompetent as to deprive defendant of his constitutional right to counsel. The criticisms made of defense counsel relate to exercise of judgment or discretion by counsel and do not justify a reversal on account of such activities of the trial counsel at the time of trial. People v. Martin, 44 Ill. 2d 489, 256 N.E.2d 337; People v. Newell, 48 Ill. 2d 382, 268 N.E. 2d 17; People v. Lobb, 1 Ill. App. 3d 239, 273 N.E. 2d 206.

Defendant also questions the attorney’s failure to obtain a transcript of prior testimony of certain witnesses at the trial of a co-defendant, who testified likewise at the trial of this defendant. The record reveals that appellant’s attorney did impeach State’s witnesses by using their prior testimony at a prior hearing in defendant’s proceeding. It is also obvious that there was some effectiveness in the activities of the defendant’s counsel, since 10 jurors were persuaded to believe that defendant was not proven guilty of the charged offense of armed robbery, although he was clearly found guilty of attempted murder.

During the jury deliberations the jury asked to have some of the testimony read to the jury. The court advised the jury that it was not permissible to read or play back testimony. Appellant asserts that this constituted reversible error on the authority of the proposed standard promulgated by the American Bar Association and upon the presumed case law of various state jurisdictions other than the State of Illinois. No precise Illinois authority has been cited to us nor have we discovered any Illinois precedent on this subject. The American Bar Association standard has not been adopted as law in Illinois, and neither it nor the reported case law of other jurisdictions is controlling. The normal rule in Illinois is that the conduct of the trial is generally within the discretion of tire trial court except to the extent that it is specifically controlled by constitutional, statutory, or judicial authority, or may involve an abuse of discretion. Since appellant fails to show any abuse of discretion in this case, there is no basis for reversal in this cause. See: People v. Dailey, 41 Ill.2d 116, 242 N.E.2d 170.

Appellant finally asserts that the written communication between the judge and the jury was not made in the presence of the defendant, and, therefore, that it was reversible error for the court to so answer the jury in writing. The written communication from the jury was, “Would it be possible for the Court Recorder to read back some of the testimony?” The written reply of the Judge was, “No, it is not permissible to read or play back testimony.” We have examined the record with respect to defendant’s contention and while the record seems to suggest that defendant’s attorney was present, it clearly does not indicate that he was not present. Since the record fails to substantiate the contention of defendant, we do not find that there is any basis for reversal resulting from the exchange of the written question and reply. Defendant cites the case of People v. Harmon, 104 Ill.App.2d 294, 244 N.E.2d 358, as support for his contention on this issue. In the Harmon case there was no question but that defendant’s attorney was not present and the question raised by the jury was with reference to a question of law and not to a question concerning testimony as was the situation in the case at bar. The case of People v. Harmon> therefore, would not be authority for reversal where a simple question of the type involved here is answered in the manner as indicated, even if defense attorney was not present.

Since we find no reversible error in the record the judgment of the circuit court of Will County will be affirmed.

Affirmed.

SCOTT, J., concurs.

Mr. JUSTICE STOUDER

dissenting:

I do not agree with the majority of the court. In my view trial errors occurred which were prejudicial and require that defendant be granted a new trial.

The first issue which I would like to discuss is that relating to the request of the jury to have testimony reread and the trial judge’s reply, “No. It is not permissible to read or play back testimony.” A substantially similar problem arose in the recent case of People v. Queen, 8 Ill.App.3d 858, 290 N.E.2d 631 (petition for leave to appeal granted) and in my dissent in the Queen case I discussed at some length many aspects of this problem which are equally applicable to the case at bar. It would serve no useful purpose in repeating those observations so recently made and accordingly my dissenting opinion in that case may be referred to for a more complete discussion of my views on this subject.

So far as this case is concerned, the majority has rejected both the reasoning of the American Bar Association Standards on the subject as well as the comments of the drafters thereof, because the same have not been adopted in our State. It is true that the Standards have not been adopted in Illinois, but this is not a sufficient reason for rejecting the arguments and reasons if otherwise applicable by way of analogy. Likewise, decisions from other jurisdictions may be considered illustrative and instructive particularly in the absence of contrary decisions in our own jurisdiction.

Undoubtedly the decision of the trial court to permit rereading of testimony in order to assist the jury in its deliberations is a matter of discretion. Yet, if the trial court announces as it did in this case, that it is impermissible to grant the request of the jury, it can hardly be said that any discretion is being exercised. At a very minimum there can be an exercise of discretion only if the court recognizes that it has such a discretion. The majority of the court in approving the action of the trial court is in effect saying that it is not permissible to reread testimony. No authority from this State has been cited in support of such a rule and I am not aware of any decision from any other jurisdiction announcing a similar rule. It seems to me that the general rule which should be applicable to a case of this kind is that the jury’s request for assistance should be granted unless unreasonable. Unless it can be inferred from the jury’s request, actions, or from inquiries attempting to discover the problem, that the request is unreasonable, the trial court’s decision is erroneous. Because of the state of the record and the failure of the trial court to even ascertain what the jury desired, the question of prejudice necessarily involves a certain amount of speculation. This should not be the case, but, in any event, the action of the jury would seem to demonstrate that the failure of the judge to assist the jury could have been prejudicial. The juiy found defendant guilty of attempted murder but was unable to reach a verdict on the charge of armed robbery. It was the State’s theory that the police officer was shot attempting to apprehend the defendant fleeing from the scene of an armed robbery. The testimony regarding the defendant’s identity as one of the robbers was not very abundant or definite. Yet the robbeiy furnished a substantial link in the conduct upon which the charge of attempted murder was based.

Defendant, Pulley, was one of two persons charged with the armed robbery of Lewis at his store. The other person charged was Fritz Autman who was tried separately and convicted of robbery. In reviewing Autman’s conviction, People v. Autman, post, p. 300, a different jury also requested that testimony be reread which was also denied by the trial judge. That the jury may have been confused or sufficiently uncertain to request rereading of testimony in each case may be coincidental but it also may be inferred that the nature of the evidence may have produced the need for assistance. Furthermore, the problems which may have motivated tire jury to seek assistance may well have related to the instructions and to the deficiencies or errors therein, as brought to the attention of this court in the appellant’s brief. I believe reversible error was committed when the trial judge ruled that he could not grant the request of the jury and that such ruling must be deemed prejudicial in the absence of any showing that the request by the jury was unreasonable.

Appellant also urged that it was reversible error for the judge to communicate with the jury outside the presence of the defendant, relying on People v. Harmon, 104 Ill.App.2d 294, 244 N.E.2d 358. I do not think that the rule of Harmon can be disposed of by simply saying that the record in this case fails to disclose whether defendant’s attorney was or was not present during the interchange between judge and jury. Harmon seems clear that defendant as well as his attorney have the right to be present. After reviewing cases from other jurisdictions there seems to be lack of unanimity in the resolution of this issue. (See, Comments to Tentative Draft of American Bar Association Standards for Criminal Justice, Trial by Jury, Page 136.) It would seem to be the better rule that all communications between judge and jury, once the case has been submitted to the jury for its consideration, should take place in open court in the presence of the jury, counsel and the defendant.

The majority opinion cites People v. Gersbacher, 44 Ill.2d 321, 255 N.E.2d 429, as authority for the proposition that the offense of attempt murder should include the elements of murder but that the failure to do so did not, in Gersbacher or in this case, constitute prejudicial error. A comparison of the facts in Gersbacher and those in the instant case does, I believe, require a different result. In Gersbacher, the victim of a rape was also shot three times and nearly strangled to death. The only issue was whether the defendant charged with the offense of attempt murder was the perpetrator thereof, and the court, concluding there was no issue concerning the nature of the offense itself, affirmed defendant’s conviction. However, in the case at bar the only issue regarding the attempt murder is the issue of whether such an offense occurred. Defendant admitted firing his gun but claimed he did so in an effort to prevent the police officer from hassling him. Thus, there was some factual basis for disputing whether murder was attempted depending to some extent on the elements of murder. Likewise, the evidence raised issues of self-defense or voluntary manslaughter. In this connection, in view of the defendant’s own testimony, it is difficult to understand why no instructions on self-defense were tendered by the defense. Without such instructions and in the presence of the abbreviated attempt murder instructions, the jury in effect had no instructions applicable to the facts which it had heard, and under such circumstances could well have concluded that under the instructions as given defendant’s admission that he had fired the gun constituted, for all practical purposes, a judicial confession of guilt.

In summary, I believe the trial court erred in failing and refusing to assist the jury when it requested further information, that the court erred in instructing the jury and that such errors, whether considered alone or in conjunction with one another, were prejudicial depriving defendant of a fair trial.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fritz Autman, Defendant-Appellant.
    (No. 73-31;
    Third District
    May 14, 1973.

      STOUDER, J., dissenting.
    John L. Barton, of Marseilles, for appellant.
    Ludwig J. Kuhar, Assistant State’s Attorney, of Joliet, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Fritz Autman was found guilty in a jury trial of the offense of armed robbery and sentenced to imprisonment thereafter for not less than 7 nor more than 20 years.

From the record in this cause it appears that an armed robbery of a Lewis Store was committed on December 19, 1970. Two men participated. One man, who was wearing a gray cap, carried a sawed-off shotgun. When the owner saw the shotgun, he sounded an alarm which rang at the police station. While the police officers did not believe that the alarm was serious and thought that possibly the alarm itself was faulty, they did proceed to the Lewis Store. As they approached the front of the store they saw defendant Autman standing just inside. Autman left as the police officers entered. One officer testified that Autman was wearing a gray cap. After the officers learned of the robbery they concluded that the man who had exited as they were coming in was one of the robbers. When one officer returned to the police station he matched a photograph with his observations of the suspect’s face. The photograph was of the defendant Autman. The policeman said that he had carefully observed the suspect’s physical characteristics and that the store had been well lighted. This policeman independently identified Autman in court, based solely, he stated, on his observation of Autman at the store. The store owner, Milton Lewis, testified that the robber carrying the gun and wearing a “big-apple cap, a sort of gray and black spotted affair with an unusual design”, pointed the gun at him and took money and some sweatshirts. Although Lewis did not obtain a good view of the robber’s face he thought he had seen the robber and tire robber’s cap before. Lewis sold hats and particularly had thought that the robber’s hat was unique. The robber who held the gun entered the store with an accomplice. As the accomplice remained in the front, the man with the gun fled through the rear door. When Lewis returned to the front of the store, the accomplice asked where the robber holding the gun had gone. When Lewis stated that he had gone out the back door, the accomplice also left through the rear door. Lewis was not able to state whether either or both of the robbers returned to the front of the store.

Lewis remembered that shortly after the robbery he thought that the robber who held the gun had been in his store on three recent prior occasions, the last of which was on the day of the robbery. He was particularly observant because of the uniqueness of the cap, and he had seen it on these three prior occasions. He also remembered that the individual had a peculiar gait and voice. He likewise remembered the physical build of the individual. He remembered that the man had been in the store two weeks earlier applying for license plates and that the name on the application was Fritz Autman. Lewis explained at the trial that he was unable to identify a picture of Autman at the police station for tire reason that he was agitated at the time and more familiar with the robber’s cap than his face. Fie described the suspect’s clothing and his general physical characteristic and such description was consistent with the description provided by the police officer on the scene and by one of the employees in the Lewis Store. When Autman was arrested he was wearing garments that were identified by Lewis and his employee as being like those they observed during the robbery.

A police officer who appeared at the store after the robbery for the purpose of obtaining a full report from Lewis, said that while he was on his way to the store to answer tire call with respect to the burglar alarm, he passed Autman in the same automobile that a tow-truck operator subsequently towed away, as hereinafter set forth. The lights were off and the car was moving slowly. He knew the automobile was one that Autman had been driving two months earlier because he had arrested Autman in it at that time. He pursued the car, found it parked with tire motor running, headlights on, and the driver’s window open, and noted that there was a sawed-off shotgun on the front seat, which he identified in court. This policeman and his partner found the coat that Lewis, the employee and the first policeman on the scene identified as being like the one the gun bearer wore during the robbery. The coat was found near the automobile.

A tow-truck operator testified that on December 19, 1970, approximately an hour after the robbery, at the request of police, he moved an automobile which was parked about a block and a half from the Lewis Store. A sawed-off shotgun was on the front seat. Lewis and his employee testified that the shotgun resembled one they had observed during the robbery.

Another police officer testified that, following the robbery, he personally chased a suspect from the store and subsequently apprehended him. That suspect's clothing was similar to the description which Lewis gave of the clothing worn by the accomplice. The suspect did not drive an automobile after he left the store.

The defense offered no evidence. On appeal in this court, defendant requests reversal on three grounds: (1) that the State proved that he did not commit the armed robbery; (2) that he was denied a fair trial by the refusal of the request to have read again material testimony heard by the jury; and, (3) that the defendant was denied his right to trial by jury when the court communicated in writing with the jury without notice to the defendant.

It is contended by the defendant that since Lewis said the gun-bearing robber left through the rear door, the person who was in the front of the store could not have been the robber. We do not agree with this conclusion or analysis of the facts. The jury as the finder of fact was charged with the responsibility of evaluating the testimony, weighing credibility, and determining how any discrepancies in the testimony should be construed or reconciled. While there may have been some discrepancies in the testimony, as is not unusual, we believe that the record shows evidence which was consistent with the jury’s verdict of guilt as to defendant. From tire record in this case we could not find, as a matter of law, that there was evidence which raised a reasonable doubt of guilt. (People v. Hoffman, 45 Ill.2d 221, 258 N.E.2d 326; People v. Lawrence, 126 Ill.App.2d 202, 261 N.E.2d 459.) Lewis identified Autman as the man who robbed him. The first police officer on the scene identified Autman as the man who passed him as he entered the store. Another police officer identified Autman as having been near the scene, and in possible possession of a sawed-off shotgun, while driving an automobile in a suspicious manner. This officer was able to establish circumstantially that Autman fled from the automobile. Lewis, his employee, and the policeman were in agreement concerning the suspect’s clothing, and Lewis identified the gun and coat as being similar to those which had been in Autman’s possession. Police officers had retrieved these from the automobile or the area near the automobile which Autman had been driving, according to the testimony.

The State and defense stipulated that Lewis was in a state of high emotional agitation following the robbery. His emotional state would seem both a sufficient and complete explanation of his inability to remember precisely certain durations of time. He stated directly that after the two robbers left through the rear of the store, he did not know whether they returned to the front. Either his lack of knowledge, as he stated, or his confusion could explain why he was unable to determine that one of the robbers was present in the front of the store when police arrived. On the basis of the record, this left a question of fact to be determined by the jury and is not inconsistent with the jury’s finding that Autman was guilty of the robbery beyond a reasonable doubt.

The remaining two contentions of defendant relating to the fact that the judge refused in writing to grant the jury’s written request to have certain testimony read to the jury during its deliberations, are asserted as a basis for reversal as hereinabove noted in the second and third contentions of defendant. We have considered the precise issues in the opinion recently filed in an appeal by Autman’s co-defendant, David Pulley, People v. Pulley, ante, p. 292, where we considered and rejected similar contentions which were raised by David Pulley, who was described as Autman’s accomplice in the robbery. In this cause, as in the Pulley case, counsel relies for authority upon proposed standards of the American Bar Association and on the case law of other States. We noted that in Illinois, the conduct of the trial is generally within the reasonable discretion of the trial court except to the extent that it is specifically controlled by constitutional, statutory, or judicial authority or may involve an abuse of discretion. Since there are no such specific constitutional, statutory or binding judicial authorities and since appellant failed to show any abuse of discretion, no basis for reversal is shown in this cause (as was true in the Pulley case). We also found in the Pulley case, as is true in this cause, that there was no reversible error arising from the written reply of the trial court denying the written request to have the reporter read back some of the testimony. We noted in the Pulley case that the situation in the present case is clearly distinguishable from that which existed in People v. Harmon, 104 Ill.App.2d 294, 244 N.E.2d 358. We pointed out that in the Harmon case it was clear that defendant’s attorney was not present and that the jury had raised a question with reference to an issue of law and not to a question concerning the reading of testimony as was true in the present case. We, therefore, conclude that there is no basis for reversal since a simple request was made to have some of the testimony read, and where the trial court made a simple denial of such request.

Since we find no reversible error in the record, the judgment of the circuit court of Will County will be affirmed.

Affirmed.

SCOTT, J., concurs.

Mr. JUSTICE STOUDER

dissenting:

I do not agree with the majority of the court. I believe reversible error was committed when the trial judge refused to grant the jury’s request to have testimony reread. Autman, the defendant in this case, and Pulley, the defendant in People v. Pulley, ante, p. 292, were both charged with the robbery of Lewis at his store in Joliet. Each was tried separately before a jury and Autman, the defendant in this case, was convicted of armed robbery. In Pulley’s case, the jury could not agree on the charge of armed robbery but did find Pulley guilty of attempt murder. In the Pulley case, as in the instant case, the jury requested that testimony be reread which request was refused by the trial judge because he believed he was not permitted to do so. That the same problem arises in two separate trials involving the same robbery may, of course, be considered coincidental, but it is also possible the nature of the evidence, which was somewhat similar, contributed to confusion or uncertainty in the minds of the jurors.

In my dissenting opinion in People v. Queen, 8 Ill.App.3d 858, 290 N.E.2d 631 (petition for leave to appeal granted), I discussed at length my reasons for believing that a trial judge commits reversible error when he refuses to respond affirmatively to or make appropriate inquiries with regard to requests by juries for assistance in resolving problems which may have arisen regarding the evidence. As in People v. Pulley, ante, p. 292, where I also dissented from the approval of the action of a trial judge refusing to respond to the request of a jury, and where I found extensive discussion unnecessary, relying on my previous dissent in Queen, I believe it unnecessary to do any more in this dissent than apply my previous reasoning to the facts of this case.

Again the trial judge refused to respond to the request of the jury except by informing them that he was not permitted to grant their request. As in the cases previously noted, the trial judge did not purport to exercise any discretion and under such circumstances there is no basis in the record for reviewing fire reasonableness of his action or determining whether he abused his discretion. If there is no basis for determining whether an abuse of discretion has occurred, then I believe, as I have previously stated, that prejudicial error results.

Notwithstanding the trial judge’s own assertion that he was not permitted to have testimony reread or in other words, that he had no discretion to grant the request, the majority has nevertheless concluded that the judge did not abuse his discretion. Assuming, for the purposes of argument, that perhaps the evidence should be considered as a whole in determining whether defendant was prejudiced and denied a fair-trial, it is, of course, impossible to ascertain the motivation for the jury’s problem or how the failure of the court to respond may have affected its decision. Nevertheless, the evidence reveals many conflicts and discrepancies which the jury was required to resolve. To resolve such issues may well have involved uncertainties based on the frailty of memory and recollection.

The witnesses who testified for the prosecution were first Lewis, the victim of the robbery, second, an employee in the store and then in order, two crime laboratory technicians, the tow truck operator and eleven police officers. Of these witnesses only Lewis and Stahl identified the defendant as being one of the robbers or in the store at the time of the offense. As is pointed out in the majority opinion, the testimony of these two witnesses is hopelessly irreconcilable. The majority concludes that the discrepancies in their testimony raised questions which were within the province of the jury to resolve and even though this be so the extent of the conflict in the testimony of these two witnesses could cause difficult problems in the jury’s determination. Accordingly, I believe defendant could have been prejudiced by the court’s failure to grant the jury’s request for assistance or to inquire into the nature of the jury’s problem.