author:
JUSTICE McNAMARA
      JUSTICE RIZZI

text:
    EILEEN MARTIN, Plaintiff-Appellant, v. KIENDL CONSTRUCTION CO. et al., Defendants-Appellees.—GERALDINE SAUER, Plaintiff-Appellant, v. R. T. MILORD COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 79 — 1709, 79 — 1752 cons.
    Opinion filed March 17, 1982.
    Rehearing denied August 26, 1982.

      RIZZI, J., dissenting.
    James M. Harman, of Doyle' & Ryan, Ltd., of Chicago, for appellant Geraldine Sauer.
    Joseph T. McGuire and Stephen C. Schulte, both of Perz & McGuire, of Chicago, for appellant Eileen Martin.
    Frank Glazer and G. A. Lewis, both of Frank Glazer, Ltd., of Chicago, for appellee Kiendle Construction Co.
    D. Kendall Griffith, Thomas M. Grisham, and Kevin R. Sido, all of Hin-shaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee R. T. Milord Company.
   JUSTICE McNAMARA

delivered the opinion of the court:

In these consolidated appeals we are asked to decide whether the wife of a living, injured workman, who himself brought an action for damages pursuant to the Structural Work Act, may recover for loss of consortium under the Act.

Plaintiffs’ husbands brought actions against defendants under the Act for damages sustained when they fell from scaffolding. Plaintiff Sauer sought damages for loss of consortium premised on the Act and on a negligence theory. Plaintiff Martin sought damages for loss of consortium premised solely on the Act. The trial court held that the Act cannot provide the spouse of an injured worker with an action for loss of consortium. The court then dismissed those portions of plaintiffs’ actions which were based on the Act. Plaintiffs appeal. Sauer originally contended that the Act is unconstitutional in failing to provide for an action for loss of consortium, but has expressly waived that argument.

Sauer now maintains that the spouse of an injured worker is a protected person under the terms of the Structural Work Act. We disagree. The purpose of the Act clearly is to compensate the worker for injuries sustained upon an unsafe workplace. (Crothers v. La Salle Institute (1977), 68 Ill. 2d 399, 370 N.E.2d 213.) The title of the Act is as follows:

“An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, and to provide for the enforcement thereof.” (Emphasis added.)

Section 1 (Ill. Rev. Stat. 1975, ch. 48, par. 60) provides:

“[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.)

Section 9 (Ill. Rev. Stat. 1975, ch. 48, par. 69) recites in pertinent part:

“For any injury to person or property occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the wridow of the person so killed, his lineal heirs or adopted children; or to any other person or persons who were, before such loss of life, dependent for support on the person or persons so killed, for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.”

Section 9 is to be read along with section 1 so that “any person” in section 9 means any person delineated in section 1. Hence, in the absence of an allegation that the present plaintiffs were injured while employed on or passing under scaffolding or that their spouses were killed while so employed, they are clearly outside the scope of the Act’s protection. (Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679, 384 N.E.2d 102; Bitner v. Lester B. Knight & Associates, Inc. (1974), 16 Ill. App. 3d 857, 307 N.E.2d 136; Lavery v. Ridgeway House, Inc. (1969), 117 Ill. App. 2d 176, 254 N.E.2d 117.) The Act does not grant the spouse of a living, injured worker a right of action for loss of consortium.

Unlike Sauer, Martin contends that the Act neither confers nor bars her action for loss of consortium. She maintains that a common law action for loss of consortium automatically arises in a spouse whenever the other spouse suffers a bodily injury for which the latter may recover, even if the basis for the latter’s recovery is statutory. A brief discussion of the common law remedy for impairment of consortium is necessary. When a spouse is intentionally or negligently injured, the physical injury may indirectly impact on the marriage relationship, depriving the noninjured spouse of the other’s services, affection or companionship. In such a case, the deprived spouse may sue for loss of the injured spouse’s consortium. The remedy clearly seeks a societal vindication of a wrong done to the family unit, and not compensation for an injury. (Cf. Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881.) In language pertinent to this issue, Roscoe Pound has stated:

“The actual pecuniary damages in these cases is relatively small, as we recognize in permitting large verdicts by way of punitive damage where there is a wanton injury. *** Where specific redress and prevention are impossible and money redress will cover but a small part of the wrong, the infliction of a penalty, which tends in some measure to satisfy the feelings of the injured person and at the same time vindicates the social interest against such wrongs in general is the sole recourse left open to the law.” Pound, Individual Interests in the Domestic Relations, 14 Mich. L. Rev. 177, 190 (1916).

The English common law recognized a loss of consortium action in the husband for loss of his injured wife’s services, and based the right on the concept that the wife was the husband’s chattel. Since historically the wife could not sue or be sued in her own name she. was, for all legal purposes, merged into the entity of her husband. Hence, an injury to the wife, the husband’s chattel, was for all purposes an injury to the husband. (See Dini v. Naiditch.) After passage of legislation which recognized the wife as a separate legal entity, and which necessarily ended the concept of the wife as the husband’s property, some jurisdictions refused to recognize the efficacy of the husband’s action for loss of consortium. See, e.g., Gallagher v. Pequot Spring Water Co. (1963), 2 Conn. Cir. 354, 199 A.2d 172; Helmstetler v. Duke Power Co. (1945), 224 N.C. 821, 32 S.E.2d 611; Rodgers v. Boynton (1943), 315 Mass. 279, 52 N.E.2d 576.

In 1958, the Illinois Supreme Court held that a surviving spouse and a minor child could not maintain a common law action for impairment of consortium caused when the defendant negligently and fatally injured the deceased. (Hall v. Gillins (1958), 13 Ill. 2d 26, 30, 147 N.E.2d 352.) The court stated:

“But the common law has characteristically imposed close limits upon the parties entitled to sue. If the deceased in this case had survived, for example, his injuries might have been such as to inflict upon these plaintiffs deprivations of the same kind and of equal severity. Yet the only person entitled to recover would be the injured man himself. ” (Emphasis added.)

Yet, in 1960, responding to an equal protection type argument, our supreme court recognized the right of a wife to recover loss of consortium damages for the negligent infliction of injury to a living husband. (Dini v. Naiditch.) The Dini court expressly reserved the question, raised by the passage of the Married Women’s Act, whether a husband’s action for loss of consortium was viable in modern law. The court stated:

“Inasmuch as we are not called upon to adjudicate the husband’s claim, we need not consider that novel theory which would remedy the arbitrary denial of a cause of action to one partner by denying it also to the other one; nor can we predicate our interpretation of the common law on the supposition that one day a court will be able to equalize the situation by striking dovm the husband’s action. Nor do we find that in Illinois the concept of ‘consortium’ is ready for the discard pile. On the contrary, its vitality was reaffirmed in Heck v. Schupp [citation], where we held unconstitutional a statute abolishing the action for alienation of affection, which involves this precise concept.” (20 Ill. 2d 406, 428.)

A dissent maintained that the remedy for loss of consortium for negligent injury to either spouse is insupportable in the law.

It is notable that the tort of alienation of affection, which the Dini court stated involves the concept of deprivation of consortium, requires an intentional interference with the family unit. Moreover, subsequent to the Heck v. Schupp holding, our legislature sharply curtailed the extent of a spouse’s recovery for loss of consortium-type damages in an alienation of affection action. The statute was amended limiting recovery to actual damages; actual damages within the statute include pecuniary loss resulting from loss of services but exclude damages for loss of companionship, felicity and sexual intercourse. See Coulter v. Renshaw (1981), 94 Ill. App. 3d 93, 418 N.E.2d 489.

The tort rationale for imposing liability on a defendant for loss of consortium damages is grounded on a duty and not a causation analysis. In the time-honored case of Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99, Judge Cardozo held that negligence as to one person which ultimately and in fact injures another to whom no duty is owed is not negligence as to the latter person. In his dissenting opinion, Judge Andrews argued for the imposition of liability based on a test of proximate cause. As illustration of this principle in the law, he cited the husband’s remedy for loss of consortium against a negligent defendant. Our supreme court continues to reject Judge Andrews’ strict causation approach, however, and continues to apply Judge Cardozo’s analysis of duty to define the limits of tort liability. (See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250.) In Renslow, the court defined duty as “an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” (67 Ill. 2d 348, 356.) As illustration that duty and not causation underlies tort liability, the Renslow court reconciled Judge Andrews’ use of the remedy for loss of consortium with a duty analysis. The court stated that a spouse’s remedy for loss of consortium exemplifies the concept of “a limited area of transferred negligence,” much like the transferred intent doctrine. (67 Ill. 2d 348, 356.) Hence, a spouse may recover for deprivation of consortium in cases of negligence not because an injury is suffered in fact, but because courts have made the policy decision that the duty to act with reasonable care should be transferred to the deprived spouse.

Applying these principles to the present case, we do not believe, as Martin suggests, that a spouse’s right of action for impairment of consortium arises automatically whenever physical harm befalls the other spouse. Absent a duty owed by the defendant to plaintiff, there can be no recovery despite any adverse impact on the noninjured spouse’s relational interests. We do not agree with the suggestion that duty is not the issue here and that the common law remedy for loss of consortium was never dependent on an additional duty owed the deprived spouse. Palsgraf and Renslow dictate the conclusion that duty is the bulwark of tort liability. And Renslow establishes that a single duty may supply the basis for tort liability to both the injured and the deprived spouse but only when, by judicial fiat, the duty owed the former is “transferred” to the latter. Hence, the issue before us is whether the duty created by the legislature in the Structural Work Act and owed to the injured worker ought to be transferred by judicial decision to the spouse of a living, injured worker.

We conclude that the duty created by the legislature in the Structural Work Act cannot be transferred by judicial decision to third persons outside the Act’s protection despite the intimacy of their relationship to protected persons. In creating a statutory standard of care in derogation of the common law, the legislature was entitled to define the class of persons intended to be protected and to exclude others from protection. We have stated that the Act was intended to protect only those injured in and around the workplace and not to protect the spouse of an injured worker. The common law remedy for impairment of consortium reflects policy considerations so distinct from the purposes of the Structural Work Act that transferral of the duty under the latter to the former would be an impermissible extension of the Act to persons and interests outside its scope. (See Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, 367 N.E.2d 466.) Nestling the standards of the Act within a common-law action does not alter our conclusion that plaintiffs are outside the Act’s protection. Plaintiffs cannot accomplish indirectly what cannot be done directly.

We believe that plaintiffs’ attempt to utilize a statute is dispositive in the present case. Our courts have repeatedly refused to permit recovery of loss of consortium damages when to do so would require a judicial extension of the terms of a statute. (Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157 (loss of consortium not recoverable under dram shop statute); Kaiserman v. Bright (1978), 61 Ill. App. 3d 67, 377 N.E.2d 261 (loss of consortium damages not available under wrongful death statute); but see Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 412 N.E.2d 638.) Elliott merely involves the question whether loss of consortium is a “pecuniary injury” within the meaning of the Wrongful Death Act. Unlike the present case, it was undisputed in Elliott that plaintiff was a protected person under the statute, and indeed the Elliott plaintiff brought a statutory, not a common law, action. The case does not involve the issue presented here whether a plaintiff not protected by a statute may nevertheless invoke its standards in a common law action.

The New York case of Heil v. F & M Schaefer Brewing Co. (1975), 365 N.Y.S.2d 247, 47 App. Div. 2d 754, aff’d without opinion (1976) , 38 N.Y.2d 935, 382 N.Y.S.2d 986, 346 N.E.2d 824, relied upon by plaintiff Martin, is totally unpersuasive. Without opinions, judgments for plaintiffs husband and wife were affirmed in an action based on both a structural work statute and negligence. Since no opinions were issued, there is no indication that the judgments were predicated on the right to recover for loss of consortium under a structural work act. Indeed, language contained in a dissent indicates that the judgments were predicated on the negligence count.

For the reasons stated, the judgment of the circuit court of cook County is affirmed.

Judgment affirmed.

WHITE, P. J., concurs.

JUSTICE RIZZI

dissenting:

I respectfully dissent from the conclusion of the majority that the plaintiffs do not have an action for loss of consortium. In my opinion, if a defendant’s wilful violation of the Structural Work Act results in a tor-tious interference with the familial relationship between spouses, the spouse of the injured person has a common law cause of action against the defendant for loss of consortium. I would reverse the dismissal of the loss of consortium actions in these two cases and remand the cases for trial.

An action for loss of consortium has always been recognized as a common law cause of action. (See Dini v. Naiditch (1960), 20 Ill. 2d 406, 421-30, 170 N.E.2d 881, 888-9S.) Plainly, the existence of the action was never dependent upon the co-existence of any statutory right given to the spouse of the injured person. Nor has the existence of the action ever been dependent upon an “additional” duty other than the duty owed by the tortfeasor to the person injured by the tortfeasor. Rather, the action has always existed solely because of the defendant’s tortious interference with the familial relationship between spouses. See Prosser, Torts secs. 124,125, at 873-97 (4th ed. 1971).

Thus, to me, an action for loss of consortium should not be allowed or denied by determining whether the tortious interference with the familial relationship is premised upon the defendant’s violation of a statute. For this reason, in my opinion, no words of the Structural Work Act are needed to give a spouse a right to recover for loss of consortium. The right to recover for loss of consortium exists by virtue of the defendant’s tortious interference with the familial relationship.

In the present case, I do not find the reasoning of the majority persuasive, and I do not find the cases relied upon by the majority apposite. As an example, the majority states, “The tort rationale for imposing liability on the defendant for loss of consortium damages is grounded on a duty and not a causation analysis.” In support of this statement, the majority cites and discusses Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 339, 162 N.E. 99, and Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 367 N.E.2d 1250. I believe that the present case does not involve a conflict between a duty and a causation analysis. Moreover, in my opinion, the existence of a duty or causation is not the issue. A loss of consortium action is based upon the traditional common law precept that the duty owed by a tortfeasor to the person injured includes a duty to the injured person’s spouse, viz., not to tortiously interfere with the familial relationship. In this same regard, it has long been recognized that a duty may exist to one foreseeably harmed even though the person harmed may be unknown and remote in time and place. Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 357, 367 N.E.2d 1250, 1254-55; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95,103,197 N.E. 578, 582.

On this same point, the majority cites Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, for the statement that “loss of consortium [is] not recoverable under [the] dram shop statute.” However, the fact that loss of consortium is not recoverable against a Dramshop Act defendant is not relevant here because, unlike the Structural Work Act, “[u]nder the Liquor Control Act *** the defendant’s liability is not based on fault.”* (Knierim v. Izzo (1961), 22 Ill. 2d 73, 78-79, 174 N.E.2d 157, 160-61.) This sharp contrast between the two statutes is made clear by what the court stated in Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., when it compared the statutes:

“In sharp contrast to the language in [the Structural Work Act] is the phraseology of the Liquor Control Act (Ill. Rev. Stat. 1959, chap. 43, par. 135,) in which the legislature, in order to effectuate a public purpose, imposed in unequivocal terms liability on the owner irrespective of his control over or participation in the tortious act. ***
The Dram Shop Act was enacted prior to the Scaffold Act, and in the absence of such clear language in the Scaffold Act indicating an intention to impose a nondelegable duty on the owner, we do not believe that such a departure from recognized bases of liability can be inferred.” 22 Ill. 2d 305, 321,175 N.E.2d 785, 793.

Together, the Knierim and Gannon cases manifest that, unlike the Dramshop Act, liability under the Structural Work Act is based on fault. Further, this critical difference between the two statutes demonstrates why a common law loss of consortium action can be premised on a defendant’s violation of the Structural Work Act although it cannot be premised on a defendant’s violation of the Dramshop Act. To me, if liability under a statute is based on fault which results in a tortious interference with the familial relationship between spouses, the spouse of the injured person has a common law cause of action against the defendant for loss of consortium. However, if liability under a statute is not based on fault, then there would be no tortious interference with the familial relationship of the spouse.

The majority next cites Kaiserman v. Bright (1978), 61 Ill. App. 3d 67, 377 N.E.2d 261, for the proposition that “loss of consortium [is] not available under [the] wrongful death statute.” However, in Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 1148-49, 412 N.E.2d 638, 642, appeal allowed (1981), 83 Ill. 2d 570, the court refused to accept the holding in Kaiserman and expressly declined to follow it. I agree with the court in Elliott. In Elliott, the court stated:

“Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, held that a wife could maintain an action for lost consortium resulting from the nonfatal injuries to her husband. Thus, with recovery for consortium permitted when a spouse is merely injured, logic dictates that recovery be allowed when death occurs. The only basis in Illinois for excluding consortium as an element of loss when death occurs is that the suit must be brought under the Wrongful Death Act; the action approved in Dini was nonstatutory. Yet in the case of death, the harm inflicted upon the marital relationship is more final and generally greater. Furthermore, the existence of the statute should not be viewed as an obstacle to compensation; the cases have emphasized its remedial nature and invite us to interpret it as permitting compensation for consortium.” 89 Ill. App. 3d 1144,1146-47, 412 N.E.2d 638, 640.

Here, the Structural Work Act should not be viewed as an obstacle to a common law action for loss of consortium since the Act is not and never was intended to be an exclusive remedy. (Illinois Pattern Jury Instructions, Civil, No. 180.00 (Structural Work Act), Introduction, at 466 (2d ed. 1972).) Moreover, unfair and illogical results would occur if recovery for loss of consortium is denied. To illustrate, if a worker is injured and dies months later as a result of a defendant’s wilful violation of the Structural Work Act, his administrator could maintain an action under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, pars. 1, 2) on behalf of the worker’s surviving spouse and next of kin (Thomas v. Carroll Construction Co. (1957), 14 Ill. App. 2d 205, 144 N.E.2d 461), and the worker’s spouse could recover under the Wrongful Death Act for loss of consortium resulting from the worker’s death (Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 1147, 412 N.E.2d 638, 641). With recovery for loss of consortium permitted when a worker is killed because of a defendant’s wilful violation of the Structural Work Act, logic and fairness dictate that recovery be allowed for the spouse’s loss of consortium prior to the time the worker died as a result of the accident, i.e., a spouse should be allowed to bring a common-law action for loss of consortium resulting from a worker’s nonfatal injuries because of a defendant’s wilful violation of the Structural Work Act.

Lastly, the majority also relies on Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, 367 N.E.2d 466. I do not find that case applicable. There was no loss of consortium or analogous action involved in Wright. In Wright, the sole issue was whether the injured plaintiff’s activity at the time of the accident was covered under the Structural Work Act. Here, there is no issue as to whether the workmen’s activities were covered under the Structural Work Act.

Accordingly, I believe that if a defendant’s wilful violation of the Structural Work Act results in a tortious interference with the familial relationship between spouses, the spouse of the injured person has a common law action against the defendant for loss of consortium. Therefore, I would reverse the dismissal of the loss of consortium actions and remand the cases for trial.

      In the present eases, although the loss of consortium counts are not delineated as common law causes of action in the pleadings, the operative facts are sufficiently pleaded to treat the loss of consortium counts as alleging common law actions for loss of consortium.

      The Dini court stated that consortium includes, in addition to support, “elements of companionship, felicity and sexual intercourse, all welded into a coneeptualistic unity.” 20 Ill. 2d 406, 427,170 N.E.2d 881, 891.

      The right to recover for the tortious interference with the familial relationship will, of course, depend upon the existence of tortious conduct on the part of the defendant. Normally, this means that there must be a tort for which an action might be maintained by the injured party. However, there is ample evidence that, historically and at present, the tortious interference action is an independent one, and is not necessarily controlled by the disposition of the case by the injured party. The use of the threadbare fictions of the tort being a “derivative action” or based on “imputed negligence” or being a tort in which “there is only one cause of action in two parties” is not, in my opinion, based on sound reasoning and is generally condemned by writers on the subject. It follows that in a loss of consortium action, the spouse’s recovery should not be precluded because of any personal defenses that may exist against others, including the injured party, except to the extent that the facts relating to those defenses go to the issue of proximate cause in the loss of consortium action. (See Prosser, Torts sec. 125, at 889, 891-93 (4th ed. 1971).) Viewing the situation realistically from a modern-day perspective, the injuries to the spouse in a loss of consortium case constitute very real injuries and, indeed, may in some instances exceed the severity of the injuries to the injured person. Thus, to the extent the spouse’s injuries are proximately caused by a defendant’s tortious conduct, it is only fair and in accordance with basic legal principles that the spouse recover for those injuries regardless of any personal defenses that may exist against others.

      Causation is preeminently an issue of fact. (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 369, 367 N.E.2d 1250, 1260 (Dooley, J., concurring).) Since this matter is not before us on any factual dispute, there is no question of causation involved here.

      liability under the Structural Work Act is based on fault. Indeed, the statute imposes liability only for wilful violations committed by persons having charge of the work. (Ill. Rev. Stat. 1975, ch. 48, par. 69; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305, 321, 175 N.E.2d 785, 793; Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 153, 157-58, 265 N.E.2d 134, 137.) A wilful violation exists if a party in charge of the work knows of the dangerous condition or by the exercise of reasonable care could have discovered the existence of the dangerous condition, and does not correct the condition. Gundich v. Emerson-Comstock Co. (1960), 21 Ill. 2d 117, 129-30, 171 N.E.2d 60, 67; Westerfield v. Arjack Co. (1979), 78 Ill. App. 3d 137, 142, 397 N.E.2d 451, 456.

      A tort is defined in the American Heritage Dictionary of the English Language 1355 (1975) as follows: “Law. Any wrongful act, damage, or injury done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.”

      In addition to a claim under the Structural Work Act, an injured worker may maintain a workmen’s compensation claim against his employer and a common law action against others (IPI Civil No. 180.00, at 466), as well as a common law action against the same defendant under the Structural Work Act action (Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 163, 265 N.E.2d 134). Also, an action brought under the Wrongful Death Act may be maintained against a defendant for a wilful violation of the Structural Work Act. Thomas v. Carroll Construction Co. (1957), 14 Ill. App. 2d 205, 144 N.E.2d 461; see also Li Petri v. Turner Construction Co. (1967), 36 Ill. 2d 597, 602, 224 N.E.2d 841, 845, where the court cited Thomas. Further, I am of the opinion that a separate action for funeral expenses may be brought by the decedent’s spouse individually or by the personal representative of the estate if the death was caused by defendant’s wilful violation of the Structural Work Act. Cf. Saunders v. Schultz (1960), 20 Ill. 2d 301, 310, 170 N.E.2d 163,168.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH C. ROLLINS, Defendant, Appellant.
    First District (5th Division)
    No. 80 — 827
    Opinion filed July 30, 1982.

      James J. Doherty, Public Defender, of Chicago (Emily Eisner, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Michele A. Grimaldi, and John M. Steed, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant Joseph C. Rollins — who admittedly killed James Johnson on April 2, 1979 — was convicted of armed violence (based on the underlying felony of voluntary manslaughter), and was sentenced to 14 years imprisonment, after a jury found beyond a reasonable doubt that he was not justified in shooting Johnson. (See sections 9 — 2 and 33A — 1 through 33A — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 2 and 33A — 1 through 33A — 3).) He appeals, contending that his conviction should be reversed for the following reasons:

(1) The trial court erred when it ordered the jury to continue deliberating on the charges of murder and armed violence after the court accepted a verdict on the charge of voluntary manslaughter.
(2) The trial court erroneously refused to give a “subject to suspicion” cautionary instruction to guide the jury in its evaluation of the credibility of a prosecution witness who was a drug addict.
(3) The trial court erroneously precluded the defense from attempting to impeach the credibility of a prosecution witness by questioning her about whether “she would lie to obtain a prescription” for the drugs she was addicted to.
(4) The trial court erroneously precluded the defense from impeaching a prosecution witness with evidence that she had been convicted of armed robbery within the prior 10 years.
(5) The trial court erroneously permitted the prosecution to present evidence of collateral crimes.
(6) The trial court erroneously denied a defense motion to exclude evidence that was derived from an unlawful police search.
(7) The evidence was not sufficient to justify giving instructions on voluntary manslaughter or to prove guilt beyond a reasonable doubt.
(8) The armed violence statute is unconstitutional as applied to defendant.

In addition to these defense arguments, the prosecution contends that we should remand to the trial court with directions to enter judgment, and impose sentence, for the offense of voluntary manslaughter.

The following facts are material to our decision.

Defendant shot and killed James Johnson — his wife’s former boyfriend — on April 2, 1979, following a quarrel in the living room of defendant’s apartment. According to defendant, he killed Johnson while acting in self-defense and in defense of his pregnant wife. Both defendant and his wife admitted that they initially lied to the police about defendant’s involvement in the killing, and that they gave the police a phony story, fabricated by defendant, about Johnson having been shot by an unknown assailant. At trial, however, they testified that Johnson was attacking them with a liquor bottle when defendant shot him with a rifle. But, despite the importance of Johnson’s alleged weapon to the claim of self-defense, defendant’s wife claimed that she threw the bottle away when cleaning up after the shooting.

In contrast with this version of the killing, Belinda Hunt, a drug addict and prostitute who admitted that before trial she flip-flopped several times on whether she saw the killing, testified that Johnson was completely unarmed, and was 12 feet from defendant and his wife, when defendant shot him with a rifle. (According to an offer of proof, defendant pointed the rifle at Johnson and, before shooting, repeatedly demanded, “Why did you tell my wife I was in jail?” Before trial, however, the court ruled that the prosecution would not be permitted to impeach defendant with evidence of his prior convictions, and the court refused to permit Hunt to testify about defendant’s statement to Johnson on the grounds that the reference to defendant’s past imprisonment would have subverted the ruling which excluded evidence of defendant’s criminal history.)

Additional evidence is included below where pertinent.

I. The Verdict

The jury received instructions on the offenses of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1), “intense passion” voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a)), “unreasonable belief” voluntary manslaughter (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)), and armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). Three sets of verdict forms were provided: guilty and not guilty forms for murder, voluntary manslaughter, and armed violence. The jury deliberated on these charges, and returned a verdict finding defendant guilty of voluntary manslaughter.

The trial court accepted this partial verdict, and sent the jury back for further deliberations on the other charges. The jury then returned with verdicts finding defendant guilty of armed violence and not guilty of murder.

Defendant now argues that the jury’s initial silence on the charge of armed violence constitutes an acquittal on that charge, and that the subsequent finding of guilty was coerced.

We disagree with both contentions.

Defendant’s first argument is based on the line of cases which state that when a jury returns a verdict of guilty on one or more counts, the jury’s silence on other counts constitutes an acquittal on those other charges. (See, e.g., People v. Potts (1949), 403 Ill. 398, 404, 86 N.E.2d 345, 348.) This is an accurate, although incomplete, statement of the applicable rule.The complete statement of the rule is that “where a jury, although convicting as to some, are silent as to other counts in an indictment, and are discharged without the consent of the accused *** the effect of such discharge is ‘equivalent to acquittal.’ ” (Emphasis added.) Selvester v. United States (1898), 170 U.S. 262, 269, 42 L. Ed. 1029,1032,18 S. Ct. 580, 582.

When a verdict of guilty is accepted by the court and the jury is discharged, the jury’s silence on other counts is treated as an acquittal because it would violate the prohibition against double jeopardy to re-try the defendant on those other charges. (United States v. Barash (2d Cir. 1969), 412 F.2d 26, 32.) But a defendant is not “twice put in jeopardy” when the trial court accepts a verdict of guilty on one count, and then sends the jury back for further deliberations concerning counts on which the jury was initially silent. Barash.

The Illinois Code of Criminal Procedure of 1963 requires juries to return verdicts on each offense charged (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4(j)), and it was proper for the trial court to order the jury to return verdicts for the charges on which they had initially been silent. See 2 Wright, Federal Practice and Procedure sec. 513, at 368 (1969).

It may be that a jury which returns a partial verdict intends to acquit on the remaining charges, but it is equally likely that the jury simply did not reach a unanimous decision one way or another on the remaining charges. So, when a jury returns a partial verdict but the jury is not discharged, there is no reason to treat the jury’s initial silence on the remaining counts as an acquittal.

Defendant also argues that the procedure used by the trial court coerced the guilty verdict on the charge of armed violence, and deprived him of the opportunity to have the jury exercise its power of leniency. According to this argument, (1) the trial court prevented the jury from changing its mind on the charge of voluntary manslaughter when it accepted the initial verdict of guilty, and (2) by ordering further deliberations on the charge of murder, the court improperly coerced the verdict of guilty of the charge of armed violence. However, we disagree with both contentions.

It is not coercive to merely inform jurors — as was done in the present case — that, even though they returned a verdict on one or more counts, they must also return verdicts on the remaining charges. (United States v. Frankel (2d Cir. 1933), 65 F.2d 285, 288.) And, when a jury is ordered back for further deliberations after rendering a partial verdict, the defendant has no right to “subsequent vacillations” by the jury on the verdict that was accepted by the trial court. United States v. Cotter (2d Cir. 1932), 60 F.2d 689, 690.

Furthermore, defendant admittedly killed Johnson with a rifle, a category I dangerous weapon under the armed violence statute. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 1.) After finding him guilty of voluntary manslaughter, the jurors could have found defendant not guilty of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2) only if they violated their sworn duty and ignored either the undisputed facts or the court’s instructions of law. See Illinois Pattern Jury Instructions, Criminal No. 1.01 (1968 and 1981 eds.) (hereinafter cited as IPI Criminal).

We recognize that juries have the power to return verdicts which defy both the facts and the law. (Horning v. District of Columbia (1920), 254 U.S. 135, 138, 65 L. Ed. 185, 186-87, 41 S. Ct. 53, 54.) However, this does not mean that the power of jury nullification is authorized; instead, it is simply a corollary of the constitutional rule that there is no appeal from a verdict of acquittal in a criminal case. See Ill. Const. 1970, art. VI, sec. 6; see also United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L.Ed. 2d 642, 651, 97 S. Ct. 1349, 1354.

“Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal *** could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution.’ ” (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 571, 51 L. Ed. 2d 642, 651, 97 S. Ct. 1349, 1354.) Jury nullification, therefore, is the price we willingly pay so that the government will be prohibited from subjecting defendants to the ordeal of being repeatedly tried for the same offense. But, a defendant has no right to have the jury defy the law or ignore the undisputed evidence. Consequently, defendant’s rights were not violated even if the procedure used by the trial court in the present case induced the jury to forego its power of nullification when it returned a verdict of guilty on the charge of armed violence.

II. Cautionary Instructions

Defendant argues that it was reversible error to refuse to give a proposed cautionary instruction that “[t]he testimony of a narcotics addict is subject to suspicion and should be considered by you with caution.” This instruction, modeled after the pattern instruction concerning accomplice testimony (IPI Criminal No. 3.17 (1968)), was offered because the prosecution’s occurrence witness, Belinda Hunt, admitted that she was a drug addict at the time of the shooting.

The supreme court has frequently acknowledged that drug addiction may have an effect on the “power and the inclination of [a] witness to be truthful,” in addition to having an effect upon the capacity to accurately observe and remember. (See, e.g., People v. Bazemore (1962), 25 Ill. 2d 74, 77, 182 N.E.2d 649, 650.) As a result of these factors, the supreme court stated, in People v. Perkins (1962), 26 Ill. 2d 230, 234, 186 N.E.2d 330, 332, that a witness who is a narcotics addict and an informer is so similar to an accomplice that “close scrutiny of the testimony of such a witness” is warranted. Thus, the appellate court has referred favorably to a drug addict cautionary instruction modeled on the strongly worded accomplice-testimony instruction. See, e.g., People v. Garrett (1976), 44 Ill. App. 3d 429, 439, 358 N.E.2d 364, 371-72; cf. 1 Devitt and Blackmar, Federal Jury Practice and Instructions sec. 17.03, Notes at 528 (3d ed. 1977) (“A narcotics addict who testifies for the prosecution is a witness of questionable reliability, because of his fear of prosecution and of being deprived of a supply of the substance he craves, but failure to so advise the jury does not necessarily require reversal if the evidence is otherwise very strong”).

Our courts regularly instruct jurors in criminal cases that they “are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them.” (Emphasis added.) (IPI Criminal No. 1.02 (1968); see also IPI Criminal No. 1.02 (2d ed. 1981) (substituting “believability” for “credibility”).) But the court can usurp the jury’s fact-finding function when it instructs them that the testimony of certain witnesses is subject to suspicion and should be considered with caution. See United States v. Lee (D.C. Cir. 1974), 506 F.2d 111; see also Lee, at 118 (“Even a Federal judge must take care lest his instruction oversteer members of a jury in fact, notwithstanding a general disclaimer that theirs is the fact function”).

We note that the drafting committee notes for the 1981 edition of IPI Criminal, indicate that it may be appropriate in a particular case to insert, in the general instruction on credibility, the factor of drug addiction as one of the things which can be considered when evaluating testimonial credibility. (IPI Criminal No. 1.02, Committee Note, at 6 (2d ed. 1981).) However, this suggestion was not included in the first edition of IPI Criminal, and defendant, who was tried in 1979; did not request that the court give the type of addict-witness instruction which the IPI first suggested in 1981. We are therefore concerned with determining whether it was reversible error to fail to give the more strongly worded “subject to suspicion” cautionary instruction which was proposed by the defense.

Jurors do not leave their common sense behind when they enter court, and even in the absence of cautionary instructions they will ordinarily be aware of the factors which make some witnesses unreliable. (United States ex rel. Swimley v. Nesbitt (7th Cir. 1979), 608 F.2d 1130, 1134.) So, even though attorneys attach great significance to such things as cautionary instructions, experience teaches us that “tjjury verdicts, at least in criminal cases, are apt to depend more upon rough or even instinctive judgments than upon refined analysis of the evidence.” (8A Moore’s Federal Practice par. 30.02 (2d ed. 1981).) Thus there is a significant difference between the need for instructions which merely tell the jurors how to evaluate specific evidence, and the need for instructions which explain the government’s burden of proof and list the elements of the offenses charged. United States ex rel. Swimley v. Nesbitt (7th Cir. 1979), 608 F.2d 1130, 1134.

Considering the jury’s role as “the sole judge” of the facts, we agree that requests for cautionary instructions involve “an area of the law where the baseline of doctrine calls for affirmance of a judge who confines himself to general instructions on credibility as affected by witnesses’ interest, and to providing in that way a context that supports the materiality of efforts of counsel to elicit evidence and present argument. Defendant then has the burden of supporting any claim that special instructions are imperative on the ground that there is justification for this exception in the need to assure a fair trial.” United States v. Lee (D.C. Cir. 1974), 506 F.2d 111, 118.

In the present case, Belinda Hunt admitted she was a longtime drug addict, and that she flip-flopped several times in pretrial statements on whether she saw defendant shoot James Johnson. Under these circumstances, every juror with a modicum of common sense undoubtedly concluded that Hunt’s testimony was “subject to suspicion” and had to be “considered with caution.”

The defense attorney thoroughly attacked Hunt’s testimonial credibility, and vigorously argued that her testimony was not worthy of belief. Moreover, the trial court gave the general instruction on testimonial credibility, and we conclude that the court did not abuse its discretion by deciding that the much more strongly-worded proposed cautionary instruction would have constituted judicial “oversteering” which would have unduly infringed upon the jury’s factfinding function. The proposed cautionary instruction simply was not necessary to assure a fair trial, and we affirm the trial court’s ruling.

III. Cross-Examination

Defendant argues that the trial court committed reversible error by preventing the defense attorney from asking Belinda Hunt whether she “would fabricate and exaggerate ailments to a public aid clinic in order to get herself a prescription” for the drugs she was currently addicted to. But the trial court did not abuse its discretion in concluding that the slight potential probative value of questions about whether the witness might “fabricate” was substantially outweighed by considerations of the trial time which would have been consumed in pursuing the collateral issues raised by this line of questioning.

Moreover, defense counsel never represented to the court that the witness had in fact ever lied to a physician as part of a scheme to obtain drugs. Instead, counsel admitted that he was just fishing. Under these circumstances it would have been improper to permit counsel to ask a series of questions which would have implied that the witness actually had lied to a physician to get drugs. See ABA Standards, The Defense Function sec. 7.6(d), at 132; ABA Standards, The Prosecution Function sec. 5.7(d), at 98 (1974 comp.) (“It is unprofessional conduct to ask a question which implies the existence of a factual predicate which the examiner knows he cannot support by evidence.”)

IV. Impeachment with Prior Convictions

Defendant argues that the trial court erroneously precluded the defense from impeaching Belinda Hunt with evidence that she had been convicted of armed robbery within the prior 10 years.

We agree that the trial court erred, but we find that the error is harmless.

Under People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E. 2d 695 (adopting the 1971 Revised Draft of the proposed Federal Rule of Evidence 609), it was proper to exclude evidence of Hunt’s prior felony conviction only if the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. In contrast with the 1971 Draft, the present Rule 609(a), as amended and enacted by Congress, provides that, except for crimes involving dishonesty or false statement, the court can preclude impeachment by evidence of a felony conviction only if “the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant.” (Emphasis added.) Fed. R. Evid. 609(a) (1975).

The Congressional Conference Committee which approved this limitation filed a report which states:

“The danger of prejudice to a witness other than the defendant (such as injury to the witness’ reputation in his community) was considered and rejected by the Conference as an element to be weighed in determining admissibility. It was the judgment of the Conference that the danger of prejudice to a nondefendant witness is outweighed by the need for the trier of fact to have as much relevant evidence on the issue of credibility as possible. Such evidence should only be excluded where it presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record.” House Report No. 93-1597; Fed. R. Evid. 609, Conference Committee Notes, 28 U.S.C.A. 286-87 (1975).

The committee’s analysis is persuasive, but the version of Rule 609 adopted by the Illinois Supreme Court does not include the limiting language found in the Federal rule. Illinois law therefore permits trial courts to exercise discretion in deciding whether to preclude impeachment of prosecution witnesses with evidence of prior convictions. Nevertheless, “The duty of the prosecutor is to seek justice, not merely to convict” (ABA Standards, The Prosecution Function sec. 1.1(c), at 83 (1974 comp.)), and it is difficult to conceive of a case in which the danger of unfair prejudice to the prosecution or its witnesses would substantially outweigh the probative value of evidence that such witnesses had been convicted of felonies or crimes involving dishonesty.

In the present case, the prosecution does not even argue that it, or its witness, would have been unfairly prejudiced by the excluded impeachment. We therefore conclude that the trial court erred when it excluded evidence of Belinda Hunt’s felony conviction. However, Hunt admitted that she had been a narcotics addict and a prostitute for more than a decade, and the jury was well aware that she committed crimes day in and day out for more than 10 years.

Under the circumstances of this case, the jury inevitably concluded that if Hunt had avoided any felony convictions despite years of daily heroin injections, it could only have been due to luck. Thus, it would have been cumulative to present evidence that, in addition to her multitude of other crimes, Hunt had also been convicted of armed robbery. In light of the evidence of Hunt’s extensive criminal career, the error in excluding evidence of this additional crime was harmless.

V. Collateral Crimes

Defendant argues that the trial court erroneously permitted the jury to hear evidence that he was guilty of crimes other than the offenses for which he was being tried. We agree, but we conclude that the error is harmless.

Belinda Hunt and Linda Scott testified that they went to defendant’s apartment with James Johnson on April 2, 1979, and that defendant gave them Talwin and Parabenzamine. After receiving these drugs, the two women spent 15 to 20 minutes in the bathroom of defendant’s apartment crushing the Talwin tablets, preparing a solution of these drugs, and injecting themselves using a syringe supplied by defendant. While all this was going on for 15 to 20 minutes, defendant sat in his living room with his wife and James Johnson. In addition to this evidence of possession of drugs by defendant, a police investigator testified that he found some Talwin and Parabenzamine pills when he searched defendant’s apartment after the shooting.

The prosecution argues that this evidence of collateral crimes (1) “was relevant to the ‘whole scheme of things’ which occurred on the night of the killing,” (2) was relevant to show why Hunt and Scott were at defendant’s apartment, and (3) was admissible under the case-law which states that the prosecution “may offer a continuous narrative of the events that formed the context of the arrest.” See People v. Sessions (1968), 95 Ill. App. 2d 17, 24, 238 N.E.2d 94, 98-99.

However, “the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.” (McCormick, Evidence sec. 190, at 447 (2d ed. 1972).) If evidence of collateral crimes is substantially relevant for such a legitimate purpose, the trial court should balance, “on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.” McCormick, Evidence sec. 190, at 453 (2d ed. 1972).

We are not persuaded that there was any legitimate need in the present case for presenting evidence that defendant possessed and dealt in controlled substances. We agree that evidence of the circumstances of defendant’s arrest became relevant because the initial statements he made to the police were inconsistent with his testimony at trial, but there was no legitimate need for slipping in the evidence of other crimes. And, whatever relevance “the whole scheme of things” had to the trial, it did not justify the introduction of evidence of these other crimes. Moreover, the slight legitimate need for showing why Hunt and Scott were at defendant’s apartment was substantially outweighed by the danger of unfair prejudice to the defendant. We therefore conclude that the trial court erred in admitting evidence that defendant possessed controlled substances and gave them to Hunt and Scott.

Nevertheless, in evaluating whether this error was reversible, it is important to note that a major defense strategy was to attempt to discredit the testimony of Hunt and Scott by showing that, just before the shooting, they spent 15 to 20 minutes together in the bathroom of defendant’s apartment preparing and injecting themselves with Talwin and Parabenzamine.

Even if the trial court excluded evidence that defendant possessed these drugs and gave them to Hunt and Scott, the jury could not reasonably have concluded that defendant was oblivious to the fact that these two women spent 15 to 20 minutes “mainlining” drugs in his bathroom. Drug addicts may qualify for many pejorative titles, but they are not generally stupid, and the jury would have certainly recognized that Hunt and Scott would not have undertaken their elaborate and lengthy preparations for “mainlining” unless they knew that their host was aware of and acquiesced in their illicit conduct. We therefore conclude that the additional evidence that defendant possessed these drugs, and supplied them to Hunt and Scott, could not have significantly increased the prejudicial impact of the evidence of drug use which the defense itself adduced. Thus the trial court’s error was harmless.

Because of our resolution of this issue, we need not consider whether the police investigator’s testimony about finding these drugs in defendant’s apartment was the result of an illegal search.

VI. Reasonable Doubt

The next two issues raised by the defense concern whether the evidence justified voluntary manslaughter instructions, and whether the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.

Defendant testified that he shot James Johnson with a rifle because Johnson attacked him and his pregnant wife. According to defendant and his wife, Johnson was in the act of throwing a bottle at them when defendant shot Johnson with a rifle. However, Belinda Hunt testified that Johnson was unarmed and was 12 feet from defendant when defendant shot Johnson.

Based on defendant’s testimony, there was some evidence that he subjectively believed he was justified in using deadly force. But, based on Hunt’s testimony, there was evidence that defendant was unreasonable in believing that he was justified in using deadly force. The evidence therefore justified an instruction on “unreasonable belief” voluntary manslaughter. Ill. Rev. Stat. 1979, ch. 38, par. 9 — -2(b).

Defendant argues that the court erred in also giving an instruction on “intense passion” voluntary manslaughter. (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(a).) However, thé jury only received one set of general verdict forms for both types of voluntary manslaughter, and we have no way of knowing whether the jury found defendant guilty of the “intense passion” or the “unreasonable belief” varieties of this crime.

In this situation, the applicable rule is that “[a] general verdict is presumed to be based on any good count in the indictment to which the proof is applicable.” (People v. Gillespie (1931), 344 Ill. 290, 295, 176 N.E. 316, 319.) For example, Gillespie was charged with two offenses, but the evidence was insufficient to support a conviction on the first count. Nevertheless, because the jury returned a general verdict, it was presumed that the jury’s verdict was on the second count.

Since the jury in the present case returned a general verdict on the charge of voluntary manslaughter, and the jury was properly instructed on the offense of “unreasonable belief” voluntary manslaughter, we must presume that the jury’s verdict was on this charge even if there was insufficient evidence to support a conviction for the other variety of voluntary manslaughter.

We find that the evidence was sufficient to prove beyond a reasonable doubt that defendant is guilty of voluntary manslaughter and armed violence. Even though Hunt was a drug addict, and she admitted flip-flopping before trial on whether she saw the shooting, defendant and his wife admitted that they too lied to the police when they initially denied that defendant shot Johnson. Even when scrutinized with caution, Hunt’s testimony is credible in light of the surrounding circumstances. We simply cannot conclude that the jury’s verdict is so unreasonable, improbable, or incredible that we would be justified in rejecting its fact findings.

Furthermore, People v. Bazemore (1962), 25 Ill. 2d 74, 182 N.E. 2d 649, cannot be read as holding that the testimony of a drug addict is always insufficient to support a conviction unless the witness is corroborated on every material point. Instead, the controlling principle is that “[ajlthough the testimony of a narcotics addict must be scrutinized with caution, his testimony may be sufficient to sustain a conviction if credible under the surrounding circumstances.” People v. Norman (1963), 28 Ill. 2d 77, 82, 190 N.E.2d 819, 822.

VII. Due Process

Finally, defendant argues that the armed violence statute is unconstitutional as applied in this case. Specifically, defendant contends that it is a denial of due process to convict a defendant of armed violence when the predicate felony is voluntary manslaughter. It is argued that the armed violence statute is irrational as applied to a defendant convicted of voluntary manslaughter because the armed violence statute will not deter homocides by people who subjectively believe that they are justified in using deadly force, or who are acting under intense passion.

We disagree with defendant’s due process analysis.

“It is a question for the legislature to determine whether an evil exists and what means should be adopted to prevent it, and its acts will not be interfered with unless they are clearly in violation of some constitutional limitation.” (People v. Lawrence (1945), 390 Ill. 499, 509-10, 61 N.E.2d 361, 366, cert denied (1945), 326 U.S. 731, 90 L. Ed. 435, 66 S. Ct. 38.) A law which establishes a crime does not violate the constitutional proscription against deprivation of life, liberty, or property without due process of law if the statute is reasonably designed to remedy an evil which threatens the public health, safety, or general welfare. People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032.

Unjustified homicides unquestionably threaten the public health, safety, and welfare, and we conclude that the statutory arrangement under which it is a crime to commit voluntary manslaughter while armed with a dangerous weapon is reasonably designed to remedy this evil. The armed violence statute, as applied to a defendant who commits voluntary manslaughter, is not invalid under the due process clauses even though there are people who will not be deterred from committing the prohibited acts. There will always be people who will not be deterred from committing crimes, but due process does not require that a criminal law must be absolutely effective. The armed violence statute, as applied to defendants who commit voluntary manslaughter, is valid under the due process clauses for the same reason that the voluntary manslaughter statute itself is valid: it is a reasonable means of dealing with the grievous problem of unjustified homicides.

Defendant concludes by arguing that it was improper to sentence him for a Class X felony (armed violence) when the jury initially found him guilty of a Class 2 felony (voluntary manslaughter). It is asserted that this (1) “had the effect of eviscerating” the jury’s power of leniency and (2) “undermines the existing statutory scheme for homicide.”

We recognize that the jury had the power to return an acquittal which defied both the facts and the law. (See our discussion of this power at section I, above.) Thus the jury could have acquitted defendant of armed violence even though he admittedly killed James Johnson with a category I dangerous weapon, and he had already been found guilty of the predicate felony. Nevertheless, the jury did not exercise this power of leniency. Instead, they simply obeyed the court’s instructions by applying the law to the facts, and returned a verdict of guilty on the charge of armed violence. This was not improper.

Furthermore, there is no conflict between the armed violence and voluntary manslaughter statutes: the former is a Class X felony, and the latter is a Class 2 felony. (Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 3 and 9 — 2(c); see also Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(3) and (5).) Defendant was validly convicted of a Class X felony, and he was sentenced for a Class X felony. This was exactly what the legislature intended for someone who committed a felony while armed with a category I dangerous weapon, and there is no ambiguity to be resolved in defendant’s favor.

VIII. One Act/One Crime

The prosecution contends that we should remand to the trial court with directions to enter judgment and impose sentence for the offense of voluntary manslaughter. But the verdicts of guilty on the charges of voluntary manslaughter and armed violence were based on the same, physical act — the homicide of James Johnson — and the trial court was correct in entering judgment and imposing sentence only on the more serious offense. See People v. Donaldson (1982), 91 Ill. 2d 164, 170, 435 N.E.2d 477.

For the preceding reasons, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and WILSON, J., concur.

      IPI Criminal No. 1.02 (1968 and 1981 eds.) provides in part:
      “In considering the testimony of any witness, you may take into account his ability and opportunity to observe, [his age,] his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.”


author: PRESIDING JUSTICE JOHNSON

text:
    ANN M. LOUSIN et al., Plaintiffs-Appellees, v. STATE BOARD OF ELECTIONS et al., Defendants-Appellees.— (COALITION FOR POLITICAL HONESTY et al., Intervening Defendants-Appellants.)
    First District (4th Division)
    No. 82 — 1527
    Opinion filed July 19, 1982.

      Barry Sullivan, Daniel J. King, and William T. Barker, all of Chicago (Jenner & Block and Sonnenschein, Carlin, Nath & Rosenthal, of counsel), for appellants.
    Louis Ancel, Stewart H. Diamond, and Adrienne Levatino-Donoghue, all of Ancel, Glink, Diamond, Murphy & Cope, and Samuel W. Witwer, Samuel W. Witwer, Jr., and James L. Siekmann, all of Witwer, Moran, Burlage & Atkinson, both of Chicago, for appellees Ann M. Lousin et al.

    Tyrone C. Fahner, Attorney General, of Springfield (Michael J. Hayes, Roger P. Flahaven, and Gary E. Medler, Assistant Attorneys General, and James M. Scanlon, Special Assistant Attorney General, all of Chicago, of counsel), for appellees State Board of Elections et al.

   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

This case involves a constitutional initiative petition proposing an amendment of article IV, the legislative article of the Illinois Constitution of 1970, which, if passed, would provide a legislative initiative. Amendment of article IV is governed by section 3 of article XIV of the Illinois Constitution of 1970, which provides in pertinent part as follows:

“Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV [the legislative article].” Ill. Const. 1970, art. XIV, sec. 3.

On May 2, 1982, the Coalition for Political Honesty (hereinafter Coalition) filed a constitutional initiative petition with the Secretary of State of Illinois which proposed the following amendment (new text proposed by the intitiative is underlined) of sections 1 and 8, subsections 9(a), 9(b) and 9(c), and section 10 of article IV of the Illinois Constitution:

“Section 1. Legislature — Power and Structure
The legislative power is vested in a General Assembly consisting of a Senate and a House of Representatives elected by the electors from 59 Legislative Districts and 118 Representative Districts and in the electors as provided in this Article.
Section 8. Passage of Bills [and Measures]
(a) The enacting clause of the laws of this State shall be: ‘Be it enacted by the People of the State of Illinois, represented in the General Assembly,’ if enacted by the General Assembly, or ‘Be it enacted by the People of the State of Illinois,’ if enacted by the electors.
(b) The General Assembly shall enact laws only by bill or measure. Bills may originate in either house, but may be amended or rejected by the other. A measure may be proposed by an initiative petition signed by a number of electors equal in number to at least six percent of the total votes case for candidates for Governor in the preceding gubernatorial election and may not be amended by either house.
An initiative petition proposing a measure shall be filed with the Secretary of State who shall within three calendar days transmit the proposed measure to each house of the General Assembly. When so transmitted, the measure shall be deemed introduced and pending in each house. The procedure for determining the validity and sufficiency of an initiative petition shall be provided by law.
(c) No bill shall become a law without the concurrence of a majority of the members elected to each house. Final passage of a bill shall be by record vote. In the Senate at the request of two members, and in the House at the request of five members, a record vote may be taken on any other occasion. A record vote is a vote by yeas and nays entered on the journal.
A measure may be passed by the General Assembly in the same manner as a bill. If a measure contains provisions whose enactment by bill would require the concurrence of more than a majority of the members elected to each house, it shall not be deemed passed unless it has received the requisite vote. If the petition proposing a measure is not valid and sufficient, passage of the measure by the General Assembly shall have the same effect as if it had been passed as a bill.
(d) A bill or measure shall be read by title on three different days in each house. A bill and each amendment thereto or a measure shall be reproduced and placed on the desk of each member before final passage.
Bills, except bills for appropriations and for the codification, revision or rearrangement of laws, and measures shall be confined to one subject. Appropriation bills shall be limited to the subject of appropriations, and appropriations shall not be made by measure.
A bill expressly amending a law shall set forth completely the sections amended.
The Speaker of the House of Representatives and the President of the Senate shall sign each bill or measure that passes both houses to certify that the procedural requirements for passage have been met.
An initiative petition shall contain the text of the measure proposed except for the enacting clause which shall be deemed added in accordance with the method by which the measure is enacted. An initiative petition shall specify the date of the general election at which the measure is to be submitted to the electors if not otherwise enacted, shall have been signed by the petitioning electors not more than twenty-one months preceding that general election and shall be filed with the Secretary of State on or before the fourth Tuesday of March next preceding that general election. A measure proposed by a valid and sufficient initiative petition shall be submitted to the electors at the general election specified in the petition unless it has been passed by the General Assembly prior to July 1 next preceding that general election and has become a law without change at least 70 days before that general election.
If a majority of the members elected to each house of the General Assembly so direct at least 63 days before the general election at which a measure is to be submitted, an alternate measure shall be submitted to the electors together with such measure. An alternate measure must pertain to the same subject as the measure with which it is to be submitted.
A measure or alternate measure submitted to the electors shall become law if approved by a majority of votes cast thereon, except that if both a measure and an alternate measure submitted with it are so approved, only the one receiving the greater number of affirmative votes shall become law. A measure or alternate measure which becomes law through approval by the electors shall have the same force and effect as if it were a bill passed by a vote of three-fifths of the members elected to each house of the General Assembly and signed by the Governor. If the provisions of two or more measures or alternate measures enacted by the electors at the same election conflict with one another, the provisions of the measure or alternate measure receiving the greater number of affirmative votes shall prevail to the extent of the conflict.”
“Section 9. Veto Procedure
(a) Every bill passed by the General Assembly shall be presented to the Governor within 30 calendar days after its passage. Every measure passed by the General Assembly shall be presented to the Governor within 7 calendar days after its passage. The foregoing requirements shall be judicially enforceable. If the Governor approves the bill or measure, he shall sign it and it shall become law.
(b) If the Governor does not approve the bill, he shall veto it by returning it with his objections to the house in which it originated. If the Governor does not approve a measure, he shall veto it by returning it with his objections to the house which first passed it. Any bill not so returned by the governor within 60 calendar days after it is presented to him .and any measure not so returned within 15 calendar days after it is presented to him shall become law. If recess or adjournment of the General Assembly prevents the return of a bill or measure, the bill or measure and the Governor’s objections shall be filed with the Secretary of State within the period allowed for its return. The Secretary , of State shall return the bill or measure and objections to the originating house promptly upon the next meeting of the same General Assembly at which the bill or measure can be considered.
(c) The house to which a bill or measure is returned shall immediately enter the Governor’s objections upon its journal. If within 15 calendar days after such entry that house by a record vote of three-fifths of the members elected passes the bill or measure, it shall be delivered immediately to the second house. If within 15 calendar days after such delivery the second house by a record vote of three-fifths of the members elected passes the bill or measure, it shall become law.”
“Section 10. Effective Date of Laws
The General Assembly shall provide by law for a uniform effective date for bills passed prior to July 1 of a calendar year. The General Assembly may provide for a different effective date in any MU passed prior to July 1. A bill passed after June 30 shall not become effective prior to July 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier effective date. A measure or alternate measure enacted into law shall become effective on January 1 of the next calendar year following its enactment unless the measure or alternate measure provides for a later effective date.”

On May 12, 1982, plaintiffs filed a complaint against defendants, the State Board of Elections, the State Comptroller, the Secretary of State, the Cook County clerk and the Chicago board of election commissioners. Plaintiffs are Ann M. Lousin, Elmer Gertz, Thomas G. Lyons, Elbert S. Smith, Lucy Reum, J. L. Buford, Lester W. Brann, Jr., Maurice W. Scott and Stanley C. Johnson. They are Illinois citizens and taxpayers who either participated in the sixth Illinois constitutional convention or have an interest in the Constitution of 1970 which was drafted by the convention. Plaintiffs sought to enjoin defendants from expending approximately $1,053,000 in public funds to determine the validity and sufficiency of the initiative petition and to arrange for and to conduct an election on the proposed amendment. They brought suit under section 11 and subsequent sections of chapter 102 of the Illinois Revised Statutes of 1979 to enjoin the disbursement of public monies. Plaintiffs alleged that the proposed amendment would violate article XIV, section 3, of the Illinois Constitution.

On May 12, 1982, the Coalition, the association which circulated the constitutional initiative petition throughout the State, was allowed to intervene in the proceeding as a defendant. Plaintiffs and the Coalition filed cross-motions for summary judgment and submitted memo-randa of law. A hearing on the matter began on June 16, 1982. On June 21, 1982, the trial court entered judgment for plaintiffs. It issued the injunction prayed for by plaintiffs and the Coalition immediately filed a notice of appeal. On June 30, 1982, the supreme court denied the Coalition’s motion for leave to appeal under Supreme Court Rule 302(b) (73 Ill. 2d R. 302(b)) and directed that the appeal be heard in the appellate court on an expedited basis and that an opinion be filed on or before July 19,1982.

In two previous cases, the Coalition has litigated issues concerning the interpretation of article XIV of the Illinois Constitution. In Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 472, 359 N.E.2d 138, 147, our supreme court held that the word, “and” in the sentence “Amendments shall be limited to structural and procedural subjects contained in Article IV” is conjunctive and not disjunctive as the Coalition had argued. The supreme court further stated:

“The defendants do not attempt to argue that the proposals meet these dual requirements [i.e., structural and procedural subject matter]. The proposed amendments did not meet the constitutional prescriptions, and the circuit court properly granted the plaintiffs’ motion for summary judgment.” Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 472.

In Coalition for Political Honesty v. State Board of Elections (1980), 83 Ill. 2d 236, 415 N.E.2d 368, a Coalition petition proposed to amend the legislative article of the Illinois Constitution by reducing the size of the House of Representatives, abolishing cumulative voting and by electing representatives from single member districts. Our supreme court stated that this amendment qualified for submission to the electorate because the proposed changes related “directly to the ultimate purpose of structural and procedural change in the House of Representatives.” Coalition for Political Honesty v. State Board of Elections (1976), 83 Ill. 2d 236, 260.

At issue in this case is whether the trial court erred in granting summary judgment for plaintiffs on the basis that the Coalition’s proposed amendment violates article XIV, section 3, of the Illinois Constitution of 1970.

Our supreme court discussed the proposal by the delegates to the Illinois constitutional convention of 1970 for a constitutional general initiative in Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 467, 359 N.E.2d 138. The court said:

“There has not been a prior constitution of Illinois which provided for its amendment by any form of popular initiative. The only methods of amendment have been by proposals originating in the General Assembly or by convention calls. See Ill. Const. 1818, art. VII, sec. 1; Ill. Const. 1848, art. XII, secs. 1 and 2; Ill. Const. 1870, art. XIV, secs. 1 and 2.
At the 1970 convention the majority of the Committee on Suffrage and Constitutional Amendments declined to propose a general initiative which would have allowed the amendments of any part of the Constitution by initiative. The committee’s report indicated that it considered that a general initiative was unnecessary since the other procedures for amending the Constitution were to be liberalized, including the automatic, periodic submission to the electorate of the question of calling a constitutional convention. (See Ill. Const. 1970, art. XIV, sec. 1.) The report further expressed concern that a general initiative provision would be subject to abuse by special interest groups and might result in hasty and ill-conceived attempts to write what should have been the subject of ordinary legislation into the Constitution. 7 Proceedings 2298.”

In conformance with those conclusions and concerns, the constitutional convention provided only a narrowly defined constitutional initiative. Article XIV, section 1, of the Illinois Constitution provides that there will be a constitutional convention whenever a three-fifths majority of each house of the General Assembly so decides. The question will then be submitted to the voters at the next general election but not less than 6 months after the decision by the General Asembly. If no decision to call a constitutional convention is made by the General Assembly during any 20-year period, then the Secretary of State shall submit the question to the voters at the general election in the 20th year following the last submission.

Article XIV, section 2, provides for an unlimited constitutional initiative by a three-fifths majority vote of each house of the General Assembly. Article XIV, section 3, provides for a constitutional initiative by petition of the electorate limited to amending article IV, the legislative article, and then further limited to structural and procedural subjects contained in article IV. The specific question presented is whether the proposed amendment is a structural and procedural subject.

An amendment is structural and procedural if it relates to the structure, and, of necessity, incidentally affects the procedure of the General Assembly. The General Assembly is an institution in which structure and procedure can be changed as provided by section 3 of article XIV. The amendment which the Coalition proposes affects legislative power. Under section 3 of article IV, power is vested in the General Assembly. As proposed, the amendment would vest power not only in the General Assembly but also in the electors. Legislative power is a concept rather than an institution which has a structure such as the General Assembly. In the 1976 Coalition case, Justice Schaeffer made it clear, while dissenting on other issues, that the initiative process could not be used to alter or change the power of the legislature. He said:

“The basic grant of legislative power in section 1, and the grant of legislative immunity in section 12 of article IV, are neither ‘procedural’ nor ‘structural,’ and there are other provisions in article IV which would not fit comfortably in either of those categories.
What the constitutional convention feared was that the initiative procedure which it was authorizing might be misused to accomplish ‘substantive changes.’ *** It was to avoid that kind of amendment that the convention decided to limit the subject matter of amendments proposed by popular initiative. The words used to accomplish that result effectively cut off amendments which would affect the power of the General Assembly, ***.” Coalition for Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 474-75, 359 N.E.2d 138, 148-49.

The constitutional initiative proposed by the Coalition is an attempt to expand article XIV, section 3, beyond the scope intended by the delegates of the constitutional convention of 1970.

Therefore, we conclude that the constitutional initiative proposed by the Coalition for Political Honesty violates article XIV, section 3, of the Illinois Constitution of 1970.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI and JIGANTI, JJ., concur.