author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carroll Gene Rendleman, Defendant-Appellant.
    (No. 71-283;
    Fifth District
    May 1, 1973.
    Carroll Gene Rendleman, pro se.

    James W. Leaton, State’s Attorney, of Jonesboro, (Ralph J. Mendelsohn, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court;

This is an appeal from an order entered in the Circuit Court of Union County, IlHnois, dismissing and denying relief sought by the defendant, CarroH Rendleman, through Petition for Post-Conviction Hearing. (Ill. Rev. Stat. 1971, ch. 38, sec. 122—1, et seq.) Previously the defendant appealed his conviction and sentence to this court, which resulted in affirmation of the conviction, but modification of the sentence to the present term of seven to ten years in the Illinois State Penitentiary. People v. Rendleman, 130 Ill.App.2d 912, 266 N.E.2d 115.

The defendant now appears before this court without counsel; the court appointed an attorney from the Illinois Defender Project after Notice of Appeal was filed by the defendant. Subsequently, the appointed counsel was discharged by the defendant and the defendant was given an extension of time to file a pro se brief. No brief has been filed and this court has aHowed the defendant to proceed pro se and on the petition which contained a brief in the body thereof.

One of the numerous bases for error alleged by the defendant was that his constitutional right, namely his incapacity to assist counsel in his own behalf, was impaired prior to trial because of medicine and drugs which were prescribed by a physician and administered to defendant. At the hearings conducted in the lower court, testimony elicited from several witnesses, including the defendant, indicated that the defendant had not taken any medication for at least one month prior to his trial. Furthermore, the attorney who represented the defendant at trial testified that the defendant never mentioned receiving any medication or any suffering related to the ingestion of medicine. The attorney further testified that it was his opinion that the defendant was able to competently assist in his own defense, both preceding and during the trial. After hearing all the testimony, the trial court denied the petition, and stated that the defendant did not show a substantial violation or denial of a consitutional right.

It is eminently clear and established in Illinois that the factual determinations in a post-conviction proceeding made by a judge will not be disturbed unless they are manifestly erroneous. (People v. Bratu, 46 Ill.2d 143, 262 N.E.2d 921.) We believe that the record is replete with competent evidence to dispell the defendant’s contention that his constitutional right was impaired, and we, therefore, refuse to disturb the finding of the lower court.

As to the other points raised by the defendant, the court has reviewed each point, the enumeration of which would serve no useful purpose, and finds nothing meritorious on which to comment.

The dismissal of the defendant’s post-conviction petition by the Circuit Court of Union County is hereby affirmed.

Judgment affirmed.

G. MORAN and JONES, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy E. Cook, Defendant-Appellant.
    (No. 72-264;
    Fifth District
    May 2, 1973.

      Chapman, Talbert & Chapman, of Granite City, (Charles W. Chapman, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (Kenneth J. Juen, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The defendant entered a plea of guilty in the Circuit Court of St. Clair County to an indictment charging him with the crime of murder and was sentenced to the penitentiary for a term of not less than fifty nor more than seventy-five years. That conviction was thereafter affirmed on appeal. (People v. Cook, 1 Ill.App.3d 292.) He thereafter filed a post-conviction petition which was denied after an evidentiary hearing, and this appeal is from that judgment.

The post-conviction petition alleged that the defendant’s constitutional rights were violated in many respects. Many of the claims therein set forth in the petition were not, however, litigated in the post-conviction hearing and the majority of the claims are not argued on this appeal. It is well settled that points not argued or briefed on appeal are waived (People v. Adams, 113 Ill.App.2d 276-287), and we therefore will consider only those claims argued in this appeal.

The defendant’s first argument is that his plea of guilty was not made voluntarily because he was not advised that the death sentence could be imposed upon a plea of guilty to the crime of murder. This claim was not presented to this court on the initial appeal from his conviction although it could have been on the appeal record. By failing to advance the argument at that time it has been waived, and cannot be the subject of post conviction relief.

It is also argued that the conviction should be set aside on the grounds that the record does not disclose that the trial court ascertained that there was a factual basis for the plea of guilty. This contention was fully considered by the court on the prior appeal and our judgment is res judicata.

Defendant’s post-conviction petition alleged that he was under the influence of drugs at the time he entered his plea and he testified to that effect at the hearing; however, the trial judge was not obliged to believe his testimony and could properly have regarded it as improbable or false. (People v. Kwiek, 18 Ill.2d 121, 124.) In our opinion the trial court did not err in denying the post-conviction relief on that ground.

The final contention made by the defendant on this appeal is that his plea of guilty was invalid because it was made because his retained counsel promised him a reduced sentence if he would plead guilty. This contention was not made in defendant’s pro se post-conviction petition, and appointed counsel made no amendment to that petition. Defendant did however testify at the evidentiary hearing that he entered his plea because of a promise of leniency. The record is somewhat confusing as to the consideration given to this testimony. The prosecutor asked for dismissal of the petition, stating that there was no allegation in the petition as to the promise and that if there had been, he would have been compelled to have the attorney present at the post conviction hearing to testify concerning the promise. The court stated that the defendant’s only quarrel was that he received a greater sentence than he wanted and that this disappointment in no way constituted a violation of any of defendant’s constitutional rights.

Relating to defendant’s failure to raise the issue of the alleged inducement for his plea of guilty the prosecutor’s position was technically correct. We must bear in mind, however, that this was a pro se petition which appointed counsel never saw fit to amend. Under these circumstances we do not believe that it is in the interest of justice to hold the defendant to strict compliance to standards relating to pleadings and proof. The trial judge did not state that he disbelieved the defendant, but indicated that his testimony, even if true, would not entitle him to relief. In this he was mistaken. (People v. Williams, 47 Ill..2d 1.) In our opinion the defendant is entitled to a hearing on his claim that his plea of guilty was induced by an unfulfilled promise of a more lenient sentence. Hie judgment of the circuit court of St. Clair County is therefore reversed and the cause is remanded with directions to permit the filing of an amended petition and for hearing on the limited issue of whether the defendant’s plea of guilty was so induced.

Reversed and remanded.

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


author: Mr. JUSTICE JONES PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Hendrickson, Defendant-Appellant.
    (No. 72-76;
    Fifth District
    March 23, 1973.

      Supplemental opinion on rehearing filed May 8,1973.

    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    Ronald A. Niemann, States Attorney, of Salem, for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant entered a negotiated plea of guilty to two indictments, one charging him with theft of property exceeding $150 in value in violation of Ill. Rev. Stat., ch. 38, sec. 16(1), and a second containing two counts, one count charging him with another theft of property exceeding $150 in Value and the other count charging him with the crime of escape while incarcerated upon a charge of a felony in violation of Ill. Rev. Stat., ch. 38, sec. 31(6). Following the pleas the agreed concurrent sentences of imprisonment for not less than 5 nor more than 10 years were imposed.

Defendant appeals contending that the court erred in relying on a waiver of jury trial without determining whether the waiver was understanding and voluntary. Defendant argues that the signing of a standard printed form of waiver of jury trial does not meet the requirement that a court ascertain of record that such waiver is voluntarily and understandingly undertaken by an accused. Our examination of the transcript of the testimony taken at the time of the plea of guilty indicates that the court advised defendant on three different occasions that he was entitled to have his case tried by a jury. The defendant, when asked whether he understood this rights, answered yes. The court’s admonitions and defendant’s indication of his understanding of his right to a jury trial, coupled with the further thorough admonitions given to defendant and the fact that he was represented by an attorney at all times and had engaged in private conversation with his attorney, are indications that defendant in fact made a knowledgeable and understanding waiver of his right to jury trial. There is nothing in the record that would indicate anything to the contrary or evidence any confusion or misunderstanding of this right upon the part of defendant. Furthermore, the previous criminal record of this 28-year-old defendant indicates that he is no novice to a criminal proceeding.

Defendant next argues that the court erred in failing to inform him of his right to a hearing in mitigation and aggravation. This argument is not well founded since the hearing in mitigation and aggravation is not required in instances of a negotiated plea. People v. Watland, 4 Ill.App.3d 845, 281 N.E.2d 435.

Defendant finally contends that the sentences imposed were excessive. At the time of its imposition the sentence was well within the statutory penalty for theft of property valued in excess of $150 (1 to 10 years) and for escape while charged with a felony (1 to 10 years). But since the judgments appealed from were imposed the new Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1001—1—1 et seq.) has become effective. For the reasons assigned in People v. Shadowens (1973), 10 Ill.App.3d 450, the sentences imposed in cases pending on appeal subsequent to the effective date of the Code must be adjusted to conform to the sentences provided in the Code. Theft of property valued in excess of $150 is now a class 3 felony which carried a sentence of not less than 1 nor more than 10 years; escape while charged with a felony is a class 2 felony which carries a penalty of imprisonment of not less than 1 year nor more than 20 years. Article VIII, section 1(c) subsections (3) and (4) provide that for class 2 and class 3 felonies the minimum term shall be 1 year unless the court, having regard to nature and circumstance of the offense and the history and character of defendant, sets a higher minimum term which shall in no event be greater than one-third of the maximum term set by the court. Since in the case at hand the defendant entered a negotiated plea of guilty and agreed to the term of 5 to 10 years there is no necessity for a remandment of this case for further hearing regarding the circumstances of the offense and the history and character of defendant. However, in conformity with the Code it is necessary that the minimum term of 5 years be reduced to one-third of the maximum of 10 years. Accordingly, the minimum term imposed herein is modified to 3 years and 4 months.

Sentence modified and judgment affirmed.

EBERSPACHER, P. J., and CREBS, J., concur.

SUPPLEMENTAL OPINION ON REHEARING

PER CURIAM:

The facts of this case are adequately set forth in the prior opinion of this court filed March 23, 1973.

Further examination of the record in this cause, pursuant to appellant’s petition for rehearing, reveals that the trial court did not question the defendant personally, in open court, to determine whether any force or threats or any promises apart from the plea agreement were used to obtain the plea, as required by Supreme Court Rule 402(b).

Although this point was neither briefed nor argued by appellant, it is plain error of which this court must take notice and a sufficient violation of Rule 402 to require reversal.

The judgment of the trial court is reversed and this case is remanded to the circuit court of Marion County with directions that the defendant be permitted to plead anew if he so desires.

Reversed and remanded with directions.


text:
    Effie Lovell et al., Plaintiffs-Appellants, v. Joseph J. Hastings, Defendant-Appellee—(Valle Young, Defendant.)
    (No. 72-173;
    Fifth District
    April 4, 1973.

      Rehearing denied June 4,1973.

      John E. Norton, of Belleville, and Norman I. Barron, of Cincinnati, Ohio, (Edward J. Kionka, of counsel,) for appellants.
    Robert F. A. Stocke, of Smith, McCollum & Riggle, of Flora, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiffs, Effie and Mamie Lovell, brought an action in the Circuit Court of Clay County to recover damages for injuries suffered as a result of a collision between two automobiles on February 7, 1967. Plaintiffs were passengers in an automobile driven by Valle Young on U.S. Route 50 in Clay County, Illinois. Defendant, Joseph J. Hastings, was driving on Route 50 in the opposite direction and allegedly turned into the path of the Young automobile. There was a collision and Mrs. Lovell was injured. The trial court, on the motion of the defendant, Hastings, dismissed the counts of the complaint directed toward him under Supreme Court Rule 103 (b) (Ill. Rev. Stat., ch. 110 A, par. 103 (b)), for plaintiffs’ failure to exercise reasonable diligence to obtain service of process upon Hastings and entered judgment in favor of Hastings from which this appeal is taken.

The plaintiffs maintain on appeal that by appearing generally and defending this action, including full and voluntary participation in pretrial discovery procedures, defendant waived any objection he may have had with respect to service of process.

The record indicates that the plaintiffs undertook considerable effort in their attempt to serve the defendant, The original complaint was filed on June 18, 1968 and on February 10, 1971, substituted service of process was obtained through service upon the Secretary of State in accordance with Ill. Rev. Stat., ch. 9572, par. 10 — 301. Subsequent to the substituted service upon the Secretary of State, the Defendant on March 11, 1971 filed a special appearance objecting to the form of affidavit used to obtain service and moved to quash the service. The defect in the affidavit was corrected by interlineation and the record shows no further action in regard to this motion.

On June 11, 1971 plaintiff filed and served interrogatories directed toward the defendant. Sworn answers to these interrogatories were filed by the defendant.

On July 12, 1971 the defendant and the plaintiffs along with their attorneys met in the office of the plaintiffs’ attorney and discovery depositions were taken at that time of the defendant by plaintiffs’ attorney and of plaintiffs by counsel for the defendant.

On July 14, 1971 defendant filed a motion to dismiss the complaint for failure to exercise due diligence to obtain service of process and in the alternative for failure to state a cause of action. After the affidavit of the plaintiffs’ investigator was filed the trial court entered an order dismissing Counts I and II of the complaint pursuant to Supreme Court Rule 103 (b) on September 1, 1971.

The plaintiffs filed a motion to amend the judgment order or in the alternative for a rehearing. The latter was granted. After the rehearing at which time plaintiffs’ investigator testified, the trial court entered an order reaffirming the dismissal of Counts I and II of the complaint with prejudice. Dismissal for lack of diligence under Supreme Court Rule 103 (b) (Ill. Rev. Stat., ch. 110A, par. 103 (b)), does not require that defendant proceed by way of a special appearance. (Caliendo v. Public Taxi Service, Inc., 70 Ill.App.2d 86.) However this does not change the general rule as set forth in Lord v. Hubert, 12 Ill.2d 83, that participation by the defendant in the trial may constitute a waiver of the right to question the court’s jurisdiction of the person of the defendant.

We find that the delay from March 11, 1971 to July 14, 1971 in filing the motion coupled with the participation in the case as here outlined constitutes a waiver of the objection.

For the foregoing reasons the judgment of the Circuit Court of Clay County is reversed, and this case is remanded for action consistent with this opinion.

Reversed and remanded.

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


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmy R. Hughes, a/k/a James Bolton, Defendant-Appellant.
    (No. 72-67;
    Second District
    May 8, 1973.

      Paul Bradley, of Defender Project, of Elgin, for appellant.
    Charles E. Marshall, State’s Attorney, of Sycamore, (James W. Jerz, of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Jimmy R. Hughes, a/k/a James Bolton, was convicted of burglary after a jury trial, and sentenced to 3-10 years in the penitentiary. Appealing, he claims error in denying his motion for a new trial based on newly discovered evidence; and contends that he was not proven guilty beyond a reasonable doubt, that he was deprived of a fair trial by the improper admission of evidence of his prior record and prejudicial testimony that he had exercised his right to remain silent, and that his trial counsel was incompetent.

The charged burglary occurred about 9:45 P.M., February 5, 1969, at the Fairdale Grocery Store located on the north side of Route 72 in Fair dale, Illinois. The store adjoined “Club 72”, a tavern. Mrs. Roger Littlejohn, who lived across the road from the tavern, testified for the State that she saw a light colored Chevrolet station wagon pull off Highway 72 and park in front of the tavern. After a few minutes the car backed and re-parked, facing the lean-to on the side of Club 72; then after another few minutes backed in toward the tavern and again parked facing the grocery store. She saw two men leave the car and go to the back of the store. The witness, continuing her narrative, said:

“So I didn’t pay very much attention after that until they was a car parking at the tavern, down by the tavern door, and that gentleman come out and come in the car and started it and went down by the store. When this gentleman started the car, evidently there was someone in this parked car, and he flashed the blinkers twice, and that made me wonder what was going on. So I watched then, and after a while I seen a gentleman ran from the car to the store, * *

Mrs. Littlejohn tiren called the tavern. She saw two young men go from the tavern toward the store. The witness continued her narrative:

“I went to the window and watched, and in a short time I see this car pull up in front of the car, and one more came out there. One fell on the porch as he come out there. He got up and both got in the car and went east, # #

Michael Miskimon, one of the boys who came from the tavern to the grocery store in response to Mrs. Littlejohn’s call, testified that he went a couple of feet inside the store, the door of which was open, and saw two men in it. He asked them what they were doing there, upon which the men inside stooped down and “froze”. Miskimon returned to the tavern and told the people there to call the police. When he again emerged from the tavern the men were getting into a 1959 or 1960 Chevrolet station wagon which was parked, backed toward the tavern. The boys followed the car, which eluded them by turning off its lights, turning around in a farm yard, and heading back west toward Fairdale. The witness could not accurately describe the men in the store nor identify the defendant.

Ronald Roach, the other boy who responded to Mrs. Littlejohn’s call, testified he saw a man in the store and one in the car. He then returned to the tavern. Upon leaving the tavern again, Roach saw a man wearing a black coat with a white or yellow band leave the store and enter the car, which had pulled over in front of it. He identified the car as a 1959 or 1960 greenish-blue and white station wagon with no license plates, and indicated this was the same car he saw at the scene of an accident sometime after it eluded them when he and several others attempted to follow it.

Another witness testified that he was driving west on Route 72 when he was met by a car which turned its lights off as it passed him. He was able to recognize three silhouettes in the car. He saw the car again when it ran into a tree, and went to summon aid.

There were three occupants of the car, one of whom was injured, one uninjured and one dead. They were taken in an ambulance to the hospital in Rockford. The wrecked car was a 1960 Chevrolet, white over turquoise, four-door station wagon. An officer at the scene removed a title application from the windshield of the car which listed the name of the defendant as the owner of the car. The officer did not see the defendant at the accident scene, but he did see him at the hospital and testified that he saw a dark coat with a white or yellow band on the back hanging on a dividing wall in the emergency room of the hospital. The officer testified that at the hospital the defendant told him the car was his but he had not been driving. There was testimony by other witnesses that the defendant was one of the injured persons picked up at the scene and taken to the hospital. Articles identified as taken from the burglarized premises were found in the station wagon along with a large quantity of beer and beer containers.

Defendant did not testify. The widow of Howard Voyles, the man killed in the accident, testified that she had last seen her husband alive at 5 or 6 P.M., the night of the accident. In her testimony she had accounted for some of the items found in the car, stating that she had given them to her husband. The sister of the defendant testified that the defendant and Voyles had come over to her house about 5:30 on the night of the accident and that she sensed the defendant had been drinking.

After the jury found the defendant guilty of burglary he failed to appear for his scheduled hearing in aggravation and mitigation and his bond was forfeited. After his return defendant’s trial counsel withdrew and defendant obtained new counsel who was permitted to file a delayed post-trial motion. In the interval, the trial judge who had heard the case had resigned due to illness and the case was reassigned. Defendant’s motion for a new trial based on newly discovered evidence was denied and defendant sentenced.

Defendant first claims that the court erred in denying his motion for a new trial based on newly discovered evidence. The motion alleged that the testimony of his accomplice Dewayne Clark was unavailable at the time of trial. In the hearing on the motion, Clark testified that on the day in question Voyles, the deceased accomplice, along with the defendant and Clark had gotten together around 4:30 or 5:00 o’clock in the afternoon and proceeded to engage in heavy drinking, including consuming a number of cases of beer in the car and stopping in numerous places in Rockford to drink other alcoholic beverages; and that later in the evening, while still drinking beer, the three drove to DeKalb County with Voyles, the individual killed in the accident, driving. Clark further testified that they stopped at the Fairdale Grocery Store; that he and Voyles got out of the car and burglarized the store; that during this time the defendant had passed out in the rear seat of the car from drinking too much alcohol; and that defendant had in no way participated with Voyles and Clark in burglarizing the store.

In denying the motion, the court referred to the fact that it was shown that Clark was not a fugitive at the time of the trial as had been earlier represented in the post-trial motion, but was either in Winnebago County jail or at the penitentiary in the State of Illinois. From this the court concluded that the witness was available and could have been subpoenaed so that the offered evidence was not newly discovered in point of law.

Defendant argues that Clark’s evidence is of such a conclusive character that it would probably change the trial result, that it was material to the issues and not merely cumulative, and that it could not have been discovered prior to trial by the exercise of due diligence because the defendant was led to believe by the State that at the time of trial Clark was a fugitive from justice so that he could not be charged with lack of diligence in securing the testimony at trial. Particularly the defendant points to the fact that the prosecutor stated to the jury at the trial that the third man was a fugitive from justice; that Officer Salemi, who was apparently the chief investigating policeman for the prosecutor, was sitting at counsel table at the time this statement was made; and that Officer Salemi when questioned by the prosecutor with reference to his investigation made no mention of his interrogation of Clark, although it appeared from the police reports that he had talked with Clark prior to trial and knew where he was incarcerated.

To award a new trial on the basis of newly discovered evidence, it must be of such conclusive character that it will probably change the result on re-trial, must be material to the issue and not merely cumulative, and must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. The burden is upon the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of diligence. Granting the motion is largely discretionary with the trial court except in case of manifest abuse. (People v. Holtzman (1954), 1 Ill.2d 562, 569; People v. Baker (1959), 16 Ill.2d 364, 374; People v. Burrington (1968), 101 Ill.App.2d 230, 234-235.) These stringent rules are based on public policy which looks to the finality of trials and therefore requires that parties be held to diligence in preparing their cases for trial. The standards enumerated are not absolute but are guides to the discretion of the trial court. Where the newly discovered evidence is not cumulative and the importance of it could not have been foreseen, and it strengthens the conviction of the court that justice has not been done, a new trial will be granted for further examination of the case. People v. Wright (1919), 287 Ill. 580, 586; People v. Royals (1934), 356 Ill. 628, 639-640. See also People v. Upshaw (1965), 58 Ill.App.2d 256, 260-261; People v. Pirovolos (1970), 126 Ill.App.2d 361, 364.

The particular facts and circumstances in the record before us make this an appropriate case to grant a new trial to further the ends of justice. It is uncertain from the record whether the defendant was in the building and therefore chargeable as a perpetrator or whether he was in the car and subject to guilt under accountability principles. The State’s theory at trial was the former, although an accountability instruction was given. The only evidence that defendant was in the store was the circumstance of a striped coat identified by one of the witnesses, but which no one testified defendant was wearing at the time of the acccident.

The State responds by arguing on appeal that defendant could be found guilty by accountability because of testimony showing the car was moved and a signal flashed from it in the process of the burglary. However, the testimony of the State’s witnesses does not clearly exclude the possibility that one of the men in the store had returned to the car and was the one who signaled and then moved it. Reviewing the case under accountability principles thus also engenders some uncertainty. While we do not thereby conclude that the jury was unable to resolve these uncertainties beyond a reasonable doubt, taking the testimony and the inferences they were permitted to draw therefrom, the case was a close one in our view. Therefore the testimony of Clark that the defendant was in the back of the car completely intoxicated and had no part in the burglary, if believed by a jury, could very probably change the result if a new trial were granted and no additional evidence of guilt were adduced by the State.

The court below did not rule on the motion for a new trial on the basis of the credibility of Clark’s testimony. The ruling was on the ground that Clark was either in the county jail or in the penitentiary at the time of the trial and therefore was available to defendant at trial. The judge so ruling was not the judge who heard the case and this fact modifies to a considerable extent the deference usually granted to the trial court when it rules on a motion for a new trial on the basis of newly discovered evidence. The State argues that defendant should have known the importance of Clark’s testimony and sought him out and could have done so since Clark was a friend. The argument is unpersuasive for it ignores the factor of deception involved in the prosecutor’s statement that Clark was a fugitive in spite of Salemi’s undoubted knowledge that Clark was incarcerated in a different county on another charge at the time the statement was made.

The State also argues, citing People v. Holtzman (1954), 1 Ill.2d 562, that the defendant is seeking to present, impermissibly, a new theory of defense as a ground for a new trial. The defense was primarily based on putting the State to its burden of proving that defendant was at the scene of the crime. In his opening statement, defense counsel stated that his client was too intoxicated to remember anything or to form an intent of unlawful entry. The defendant also produced a witness who testified she thought defendant had been drinking the night in question. There was evidence of the considerable amount of beer found in the wrecked auto. These matters indicate the line of defense presented at trial was not inconsistent with Clark’s testimony.

There are certain other aspects of the trial which have contributed to our conclusion that this is an appropriate case to grant a new trial. The defense called Officer Salemi as a witness at trial to testify in response to a subpoena to produce certain items taken from defendant’s car and to produce original copies of police reports. Salemi produced the items and was questioned about them by defense counsel. On cross-examination the witness was asked what he further did in connection with the investigation of the case. The record shows the following:

“Q. All right. Did you, in fact, attempt to interrogate the subject?
A. Yes, sir.
Q. What happened when you proceeded—
MR. FIERZ: This is irrelevant. It goes beyond the scope of direct examination. I object.
THE COURT: He may answer.
MR. MARSHALL: He was called.
THE COURT: He may answer the question.
A. I advised Jimmy Hughes of his constitutional rights, advising him that he could remain silent when questioned, if he wished to remain silent. He didn’t want to talk to me any further, so I left it at that.
Q. Then what did you do?
MR. FIERZ: I don’t see how this has anything to do with direct examination pertaining to this report.
THE COURT: That is true, but this was an officer involved and on cross examination where the witness has been called in they are not bound by the direct examination if they have other information which can be brought out. He is not confined to that. This is not a civil case. This is a criminal action. When you produce this witness you open the door to cross examination of any knowledge he might have with reference to the case.
Q. What then did you do?
A. I fingerprinted the defendant, Jimmy Hughes, and sent his fingerprints down to the Illinois or FBI. Upon receiving the fingerprints back and the record showed a Section 8, I proceeded to question him again.
MR. FIERZ: There is no evidence of the defendant or his fingerprints. This would be highly prejudicial.
THE COURT: Sustained.”
* * (Emphasis added.)

We consider with this examination a further fact that the application for a title sticker removed from defendant’s car at the scene of the accident by one of the officers was introduced into evidence by the State without objection. The application which was in defendant’s name included on the reverse side the handwritten notation:

Howard
Vo F.B.I.
burglary
Ark.
1954
Sept. 15, 1943

The comment by the witness on defendant’s refusal to speak after being warned of his constitutional right to remain silent constitutes error. (People v. Lewerenz (1962), 24 Ill.2d 295, at 299; People v. McVet (1972), 7 Ill.App.3d 381, 387, 287 N.E.2d 479, 483, 484.) A somewhat ambiguous reference to a “Section 8” record of the defendant taken in conjunction with the reference to his being fingerprinted and the also somewhat ambiguous reference to the F.B.I. and burglary found on the back of defendant’s application for title sticker clearly implied a former record. The defendant did not testify so that he could not be impeached by a record of former convictions. Even though the implication of the former record could be said to have been volunteered by the witness during the cross-examination by the State it was clearly prejudicial. See People v. Parish (1972), 6 Ill.App.3d 587, 590; People v. Kosearas (1951), 408 Ill. 179, 181.

We cannot declare beyond a reasonable doubt that these trial errors did not contribute to the finding of guilty. We therefore cannot uphold the State’s contention that we should consider these errors waived because trial counsel did not adequately preserve his objections in each instance. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 710-711.

The judgment below is reversed and the cause remanded for a new trial in compliance with this opinion.

Reversed and remanded with directions.

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


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Booker Hannah, Jr., Defendant-Appellant.
    (No. 72-35;
    Third District
    May 9, 1973.

      James Geis, of Defender Project, of Ottawa, for appellant.
    G. Trent Marquis, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

On May 4, 1971 Robert Booker Hannah Jr., the defendant was charged with robbery and aggravated battery. After a bench trial the defendant was found guilty of aggravated battery in the Circuit Court of Rock Island County. On Sept. 28, 1971 the defendant was sentenced to a term of 3 to 10 years, to be served concurrently with a 1 to 5 given for violation of probation.

On April 22, 1971 at about 8:30 P.M. Jerry Licata, went to the Sheraton Motor Inn, Rock Island, Illinois, to meet some friends. He remained there until about 1:30 A.M., during which time he drank an estimated eight glasses of beer. About 1:30 A.M., he went across the street to the Tiger’s Den to have one more drink with his friends. His friends left about 1:45 A.M., and he walked back to a pool table area in the rear of the Tiger’s Den. This area was illuminated by a light over the pool table and by floor lights. He remained there for about one-half hour watching and betting on several games. He testified that the defendant played in all the games (he thought four); and that defendant was wearing a T-shirt and levis.

After about one-half hour in the pool area, Mr. Licata went back to the bar and got a rum and coke. He remained at the bar until closing time at 3:00 A.M. He was one of the last ones to leave the bar. The defendant and his friends left just a few minutes before Mr. Licata.

Janice Daniels testified that Licata did not appear drunk when he left. She also testified that it was like daylight outside the Tiger’s Den. Licata testified that the street lights were quite bright.

Licata testified that he left the Tiger’s Den, turned east, took several steps and was attacked by a man who hit him, knocking him down and kicked him into a state of shock. He stated he first saw his assailant when the assailant said, “Hey man, how about my five or ten”. Licata testified that he could clearly see his assailant prior to being attacked and positively identified him as the same person who had been playing pool earlier. He identified the defendant as being the assailant. He also got a full body view of the assailant as he fled.

Licata refused to go to the hospital and was taken home. He was in shock after the beating. He was in great pain the rest of the morning and finally went to the hospital that afternoon by ambulance. He was treated for lacerations and underwent surgery for the removal of a ruptured spleen.

Two days later, while still in the hospital, Licata was shown five or six pictures by police, and told that defendant might be among them. Licata positively identified the third picture he looked at as being the assailant. All of the pictures were of black males of the approximate age of 24 to 28.

Licata testified that his identification of the defendant was based on his recollection of the event and not the pictures he was shown in hospital. He also testified that his assailant wore levis and a T-shirt and had facial and head hair not much different than the defendant did in court.

The defendant testified that he went straight from the Tiger’s Den to his brother’s house with one Virgil Mayberry who was no longer in the area; that his head was shaved bald and that he never wears levis and T-shirts; that he left the community the next day but returned on June 2 after his mother told him the police wanted him.

The defendant’s testimony regarding his hair was supported by his mother, and a minister who could recall how the defendant looked in April but was unable to recall any details about defendant’s appearance in March, May, June or July.

In addition to the complaining witness three occurrence witnesses testified for the State. Knute Rodland testified that he was not positive but could make a 99% sure identification of the defendant as the assailant. Caroline Day and Caroline Ser ale could not positively identify the assailant. All three witnesses gave consistent testimony that the assailant was: Negro; stocky; in his 20’s; short cropped hair; wearing levis and T-shirt or tight sweater.

In rebuttal Ray Barnhart was called to impeach Mrs. Hannah, the defendant’s mother and a prior conviction of the defendant was admitted for impeachment.

The defendant first contends that he was not proven guilty beyond a reasonable doubt because the identification testimony of Licata was tainted by the police statement at the photographic identification, that Licata was in shock after the first punch, that he was under the influence of alcohol and that his first description to the police was only that the assailant was a Negro.

The weight to be given the testimony of Jerry Licata under the circumstances is governed by well established rules. The credibility of witnesses and weight to be accorded their testimony is a matter for the trier of fact and should not be overturned unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt.

It is equally well settled that the testimony of a single witness may convict, if that witness is credible, and he viewed the accused under such circumstances that he can make a positive identification. People v. Stringer, 289 N.E.2d 631.

The evidence is not so “unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to defendant’s guilt”. People v. Scott, 38 Ill.2d 302, 306, and the trial judge was in more advantageous position than we to assess the credibility of the witness.

It is always important that photographic procedures be conducted fairly. When photographs are shown, the officer should in no way indicate a suspect’s photograph is included. This practice has been repeatedly condemned by the courts, however, here the in-court identification had an independent origin i.e., the trial identification was established to have been based on Licata’s observations at the time of the crime and unaffected by the suggestive pre-trial procedure. (People v. Durant, 105 Ill.App.2d 216; People v. Drayton, 288 N.E.2d 922.) As we have noted, the victim here had ample opportunity to observe his assailant under what.he described as good lighting conditions. His prior observation was more than sufficient to serve as an independent origin for the in-court identification.

Defendant next contends that it was error to admit prejudicial hearsay testimony under the guise of impeachment.

Mrs. Jeannette Hannah, the defendant’s mother was called as defense witness to corroborate the defendant’s statement of his physical appearance on April 23. On cross-examination she was asked if the defendant had ever told her that he had got into a fight with Jerry Licata. She denied that he had so told her. She was then asked over objection if she had told Ray Barnhart (defendant’s probation officer) that defendant had told her he had a fight with Jerry Licata. This she denied. Ray Barnhart was called as a rebuttal witness and he then testified, over objection, that Mrs. Hannah told him that the defendant had told her he had a fight with Jerry Licata.

Robert not being present, the statement to Barnhart is hearsay and incompetent as against Robert who was then on trial. As was said in People v. Grigsby, 357 Ill. 141: “* * * If the witness admitted making the statement, it would prove nothing except that she * » * had said so.” Here we have a hearsay statement of a witness as to an admission or declaration of the accused tending to incriminate him placed before the trier of the fact on the theory that it is admissible to impeach the witness who denied making such statement. What Mrs. Hannah stated out of court and out of the presence of the defendant is pure hearsay and incompetent. (People v. McKee, 39 Ill.2d 265, quoted with approval in People v. Montgomery, 51 Ill.2d 198, 207.) In McKee the witness was confronted with contradictory written statements he had made to the police wherein he had said that McKee had said that he had had to shoot the man. The Court said, “What the witness stated out of court and out of the presence of the defendant is pure hearsay and incompetent. * # # Such evidence is not competent even for the purpose of impeachment where the statement bears directly upon defendant’s guilt or innocence. The prejudicial effect upon a jury would be too much.”

The policy involved is the protection of the defendant against the hearsay use by a jury of the previous statement, in the belief that the ritual of a limiting instruction would unlikely be heeded by a jury. See McCormick on Evidence, Second Edition, Sec. 36. (Example given there: witness for defense who denied she heard defendant say he was going to kill deceased, improperly allowed to be impeached by proof that she had said she had heard such threats.)

In People v. Kimbrough, 131 Ill.App.2d 36 (1972) the impeaching witness testified that, “Nora said that Grady said he had shot somebody.” The Court relying on McKee and Grisby stated, “What the witness stated out of court and out of the defendant’s presence is pure hearsay and incompetent.”

In People v. Hundley, 4 Ill.2d 244 a similar prior statement was held to be hearsay and not competent even for impeachment.

We are not unaware of the holding in People v. Newman, 30 Ill.2d 419 (1964) where a witness was asked if the defendant told her what he did. She replied, “No” and was made a court’s witness. She admitted making a written statement wherein she stated, “I then asked him if he had got in the gas station and he said, yes’.” In reversing because of failure to give a limiting instruction to the jury, the court felt that the impeachment would be proper in the new trial if the voluntary character of the statement was established. (She had testified that the police threatened her.)

People v. Collins, 49 Ill.2d 179 (1971) also had similar hearsay type of prior statements, “Theodore told me they had shot a white man and the next day Lament told me they had shot that man in Hyde Park”. The defendants did not raise the issue that this was improper impeachment. The sole contention was that it was error to permit the statement to be received in evidence without a limiting instruction. Amicus briefs were filed urging the Court to allow the use as substantive evidence. The Court said, “There remains for consideration the question of the effect to be given Robinson’s statement upon a new trial 4 4 s is their effect to be limited to an attack upon his reliability * * After a thorough discussion the court refused to change the present law and refused to adopt a new rule allowing the substantive use of prior out of court statements.

Which brings us to the next issue:

The trial judge in admitting the evidence of Mrs. Hannah’s statement declared that it was for impeachment purposes, yet he treated it as substantive evidence. In announcing his decision the Judge stated:

“The Court does believe that there is proof beyond a reasonable doubt that the defendant is guilty of aggravated battery as charged in the second count and the court makes that determination upon the identification of those who witnessed the fight, plus the fact that the testimony of Ray Barnhart established that the statement of Mrs. Hannah indicated that Robert had a fight with Jerry Licata.”

The identical situation arose in People v. McKee, 39 Ill.2d 265. On page 271 the court stated, “* * * there is a presumption that he will consider only competent evidence in reaching his decision, and the admission of such testimony, even if error, is therefore not prejudicial. (People v. Cox 22 Ill.2d 534.) The finding of the court here prevents application of this rule. # 6 6 This ‘evidence’ was incompetent; it was hearsay; it was admitted as evidence under the guise of impeachment and had no probative value as to the guilt of defendant.”

Under the circumstances and the precedents previously cited we can only conclude that the court’s finding was based in part on incompetent evidence which was so highly prejudicial to defendant as to require a finding of reversal error. On remandment and a new trial free from such prejudicial error the question of guilt or innocence can be determined.

Because a new trial will be necessary we must consider another contention of defendant.

Prior to trial the defense made a motion to determine the admissibility of defendant’s prior robbery conviction on June 16, 1970 which was denied. After the close of the defense evidence the record was offered to impeach defendant’s testimony and was admitted over objection.

In exercising its discretion as to whether or not the 1970 conviction of the defendant for robbery should be admitted into evidence for impeachment purposes, the trial judge should be guided by the considerations noted in People v. Montgomery, 47 Ill.2d 510.

For reasons stated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

ALLOY, P. J., and STOUDER, J., concur.

         People v. Marino, 44 Ill.2d 562 (1970) had just been decided. Their defendants relied on People v. McKee which was distinguished.


text:
    Stephen Yang, Plaintiff-Appellant, v. Special Charter School District No. 150, Peoria County, et al., Defendants-Appellees.
    (No. 72-268;
    Third District
    May 9, 1973.

      Franklin Renner, of Peoria, for appellant.
    Julian Cannell, of Peoria, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Peoria County, Illinois, which affirmed a decision of the board of education of Special Charter School District No. 150, Peoria County, Illinois, approving the dismissal of Stephen Yang, a teacher.

Proceedings against Stephen Yang commenced on December 20, 1971, when the school board adopted a resolution for his dismissal, to be effective February 25, 1972, and for his immediate suspension without salary, and also served written notice of charges upon him as required by section 24 — 12 of The School Code. (Ill. Rev. Stat. 1971, ch. 122, sec. 24—12). The notice of charges read in part as follows: “Please be notified that effective February 25, 1972, or sixty days from the date of service of this notice, whichever is later, you are dismissed as a teacher in District 150, Peoria, Illinois, and that such dismissal is based upon the following charge: That on or about December 7, 1971, at 10:00 o’clock P.M. you were in an automobile parked near the McClugage Bridge in East Peoria, Illinois, with a female student enrolled in Peoria High School, who is less than 18 years of age, and that at said time and place both you and this student were either naked or partially undressed; that you were so observed at said time and place by an officer of the East Peoria Police Department, and that the foregoing facts have become known to the public by reason of the filing of a police report and a criminal complaint based thereon.” The notice also contained a statement, as required by section 24 — 12 of The School Code, that a bill of particulars would be provided on receipt of a timely request, and a copy of section 24 — 12 was attached.

Thereafter a bill of particulars was requested, it was furnished, a hearing was requested, and a public hearing was provided. Evidence was heard by the board in the evenings from January 17 through January 21, 1972. The board heard six reputation witnesses and seven character witnesses called by the teacher, but the hearing officer employed by the board refused to allow eleven other witnesses to testify as to the teacher’s good character and reputation. The hearing officer also refused to allow into evidence the teacher’s acquittal of the criminal charges following a jury trial. On January 21 the board rendered a unanimous decision approving its previous dismissal of the teacher. It found that both the teacher and the student had been either naked or partially undressed in the automobile, that the impact of this on the district’s schools was not remediable, and that dismissal of the teacher was in the best interests of the schools. Then on February 28 the teacher filed a complaint for administrative review, and from the Circuit Court’s adverse judgment on his complaint the teacher has taken this appeal.

The teacher contends that he was denied due process because the board was not an impartial fact finder, that the board did not follow the procedure required by section 24 — 12 of The School Code because the dismissal preceded the hearing, and that the hearing officer erred in denying the admission of additional character and reputation testimony and the verdict of not guilty.

He argues that a teacher with tenure has a property interest subject to procedural due process protection (Perry v. Sindermann, 33 L.Ed.2d 570, 580); that due process requires an “impartial decision maker” (Goldberg v. Kelly, 25 L.Ed.2d 287, 301) who did not initially deal with the case (Morrissey v. Brewer, 33 L.Ed.2d 484,497); that a school board under section 24 — 12 formulates, prosecutes, and punishes charges (Pickering v. Board of Education, 36 Ill.2d 568, 585 (dissenting opinion), rev'd, 391 U.S. 563, 20 L.Ed.2d 811); and that the United States Supreme Court has adverted to “the obvious defects in the factfinding process occasioned by the Board’s multiple functioning” (id., 20 L.Ed.2d at 823, n. 14). However, these questions were asked of the teacher and these answers given by him at the hearing: “Mr. Yang, do you deny you were playing strip poker with Miss Spencer on the evening of December 7th, 1971 in Cooper Park?” “I do not deny that.” “Do you deny, sir, that you had removed a portion of your clothing at that time and place?” ‘1 do not deny that.” Therefore, since the teacher unequivocally admitted the misconduct with which he was charged by the board, we need not consider his arguments relating to the fact-finding process. “In such a circumstance,” it has recently been held, “the function of procedural protections in insuring a fair and reliable determination of the * * * factual question * * * is not essential.” Betts v. Board of Education of City of Chicago, 466 F.2d 629, 633.

The teacher argues, also, that his dismissal should not have preceded his hearing, and that he should have been given not a notice of dismissal but a notice of charges under the statute. However, his dismissal was stated to be effective at a later date, as contemplated by section 24 — 12, and the notice given him was both a notice of dismissal and the written notice of charges which section 24 — 12 requires. We believe the notice was in proper form and the procedure followed was in compliance with statute. See Lombardo v. Board of Education, 100 Ill.App.2d 108.

The teacher further argues that the board’s hearing officer erred in not permitting all of the teacher’s character and reputation witnesses to testify, and in not permitting proof to be made that the jury had found him not guilty of the criminal charges which had been placed against him. Limiting the number of witnesses was a matter of discretion (Geohegan v. Union El. R.R. Co., 266 Ill. 482, 486), and we think no abuse of discretion appears from the facts of this case.

It is generally held that a prior acquittal in a criminal prosecution is not admissible in evidence in a civil action to establish truth of facts on which it is based; but where an acquittal is an element or a fact to be proved in a civil action it is competent. (29 Am.Jur.2d Evidence, Sec. 335; Annotation: 31 A.L.R. 270, Sec. 18 A.L.R.2d 1315, Sec. 6; 71 Ill. 209.) In the case at bar, the charges themselves refer to the collateral criminal action and we therefore believe that the acquittal should have been admitted. However, we do not deem such error prejudicial in view of the teacher’s own admissions.

For these reasons the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobby Street, Defendant-Appellant.
    (No. 11671;
    Fourth District
    May 9, 1973.

      Rehearing denied June 11,1973.

    Callis & Filcoff, of Granite City, for appellant.
    Thomas P. Carmody, State’s Attorney, of Carlinville, (Joseph P. Koval, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

In a bench trial, defendant was found guilty of two counts of theft of over $150 and one count of burglary. He was sentenced to not less than 1 nor more than 3 years on each count to run concurrently. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt and that the presumption of guilt arising from the unexplained possession of recently stolen property is in violation of his fifth amendment rights as applied under the fourteenth amendment of the United States Constitution.

The offenses arose out of the theft from and burglary of a hardware store and the theft of copper wire from a telephone company. Defendant was arrested with two companions, Cook and Dunham, in his camper truck in which the stolen articles were found. Cook plead guilty, assuming full responsibility for the offenses. Dunham was tried and convicted with defendant.

Prior to the occurrence of the offenses of which defendant was convicted, witnesses saw Cook and Dunham prying open the door of a jewelry store and fleeing in defendant’s truck. A third man was said to have been in the truck but no one was able to identify him as defendant. Defendant’s involvement in the burglary and theft was explained by Cook, who testified that he drove Street’s truck while defendant was “passed out” and sleeping. Cook testified that defendant had been drinking all day and did not wake up until sometime following the last offense. At that time, defendant demanded control of the truck. He was stopped shortly afterward by the police. The police officers involved in the arrest and questioning of defendant stated that defendant appeared sober. The evidence against defendant is circumstantial in nature consisting of his presence in the track with the two men and the location of the stolen goods in the truck.

A review of the record leads us to the conclusion that the question was one of credibility of witnesses — an issue for the trier of fact. The evidence was sufficient to convict beyond a reasonable doubt. A further discussion of the evidence and issues involved would have no precedential value. Therefore, pursuant to Rule 23, we reject defendant’s contention that the evidence was insufficient, and the judgment of the circuit court of Macoupin County is affirmed.

Defendant further asserts that the inference of guilt flowing from the unexplained possession of recently stolen property is in violation of his fifth amendment rights as applied under the fourteenth amendment of the United States Constitution. This issue has been considered in cases where juries are instructed on the presumption (IPI Criminal Instructions 13.21). The instruction has been upheld. (People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787; People v. Hayes, 133 Ill.App.2d 885 272 N.E.2d 423.) The court as the trier of fact in Street would have been entitled to employ the presumption. The Whittaker opinion cites Turner v. United States, 396 U.S. 398, 24 L.Ed.2d 610, 90 S.Ct. 642, where the court concluded that a jury instructions on the inference did not violate the right of Turner to be convicted only on a finding of guilt beyond a reasonable doubt and did not place impermissible pressure upon him to testify in his own defense (24 L.Ed.2d at 624). The opinion of the supreme court in Whittaker is dispositive of this issue.

Although the issue was not raised, defendant may not be sentenced concurrently or consecutively on offenses resulting from the same conduct. (People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316, and People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679.) A review of the record reveals that defendant was convicted of knowingly and without authority entering into Hazel’s Hardware Store with intent to commit theft and once inside having taken fishing gear and electrical appliances. There is no indication that the acts constituting the burglary were “independently motivated or otherwise separable” from the conduct which constituted the offense of theft (People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24.) Thus, the judgment entered upon the charge of burglary is affirmed and the judgment entered upon the charge of theft is reversed and cause remanded to the circuit court with directions to issue an amended mittimus.

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

SMITH and SIMKINS, JJ., concur.


text:
    Leona Carole Daum, Plaintiff-Appellee, v. Gene Walter Daum Defendant-Appellant.
    (No. 71-302;
    Fifth District
    May 4, 1973.

      James E. Buchmiller, of Greenville, for appellant.
    Meyer and Meyer, of Greenville, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from the Circuit Court of Bond County.

On February 3, 1967, the court entered a decree for divorce to the plaintiff, Leona Carole Daum; the defendant, Gene Walter Daum, was ordered under the terms of the decree to pay to the plaintiff $40 per week as partial support for the couple’s four children. This decree was subsequently modified on November 18, 1968, as a result of the plaintiff’s Petition to Modify, wherein the court increased the child support payments to $50 per week.

On July 17, 1970, the plaintiff filed a Petition for Rule to Show Cause alleging that the defendant failed to meet the support obligations of the court’s decree. An Order to Show Cause was entered the same day. In response thereto the defendant filed his own Petition for Order to Show Cause alleging that plaintiff denied him visitation to the children. On August 5, 1970, the defendant filed a Notice to Appear and Produce Tax Records and a Petition for Modification of Decree, seeking a reduction in the amount of the support payments. The defendant next filed, on December 18, 1970, a Petition for Order to Show Cause for the plaintiff’s failure to provide tax records.

The plaintiff agreed at a hearing held on November 20, 1970, to produce the requested income tax returns, but the court, subsequent to the hearing, determined that it would not be necessary for the plaintiff to produce the actual tax records. The originals having been lost, the comt indicated its opinion that it would cause an unnecessary delay to obtain duplicates from the Internal Revenue Service.

The defendant was, however, supplied by letter from the plaintiff’s counsel the tax information for the years requested. The plaintiff did subsequently on July 26, 1971, produce copies of the tax returns, and defendant’s Petition for Order to Show Cause was denied by order filed July 28, 1971. The information in the tax returns was in accord with the information that had previously been supplied by the plaintiff’s counsel. The hearing on July 26, 1971, was to be the initial hearing on all matters then outstanding, but the defendant’s counsel requested that the hearing only consider the discovery issues. The defendant’s request was granted and the hearing was continued until August 9, 1971, an agreed upon date. It appears that on August 3, 1971, the defendant’s counsel realized that he had an apparent conflict in the date set for the hearing, in that he had planned to take a vacation from August 6 until August 22. The defendant’s counsel, without first obtaining a continuance from the court, proceeded on his vacation.

Apparently the defendant’s counsel informed the clerk of the Circuit Court that he was desirous of obtaining a continuance, but made no attempt to communicate with the trial court. He did, without success, attempt to inform opposing counsel of his desire for a continuance. No continuance was granted. The court so informed the defendant’s counsel by letter, who replied by letter that “it will be impossible for me to be present.” The defendant’s counsel’s letter was not received by the court until August 10, one day after the hearing. When the matter was called for hearing on August 9,1971, the plaintiff and counsel were present; the defendant and his counsel were not. The trial court then obtained the presence of the defendant and proceeded to hear the issues. A full hearing was held and the defendant testified and made his position known, especially regarding his financial status.

The court granted the defendant visitation for the period of from August 10 to August 24, 1971, so that the defendant could exercise rights of visitation prior to the children’s return to school.

The court also ruled, among other things, that the defendant was in contempt for willful failure to pay any child support for a period of approximately six months total payment (more than 24 weeks accrual), plus medical bills of some $675, and gave defendant two weeks to purge himself in an unspecified amount. The court also denied defendant’s Petition for Order to Show Cause, finding that the plaintiff was not willfully withholding visitation of the children, and further finding that the defendant was then living with a woman not then his wife. The court also denied defendant’s petition to reduce support payments, finding that the payment of $50 per week for four children was equitable and appropriate.

The court then, on August 23, 1971, with a defendant’s counsel present, reconsidered all the matters determined on August 9, 1971. After reconsideration, the court confirmed its August 9th holdings in all relevant aspects.

On August 23, 1971, the defendant admitted that he made no payments to purge his contempt, so remaining in contempt, he was sentenced to 30 days in the County Jail with further purgation allowed by paying $200. The case was then reset for hearing on November 1, 1971, for further punishment or purgation after the defendant’s crops were harvested. At this state of the proceedings, this appeal was brought by the defendant.

The defendant urges that the court erred in the following regard:

(a) holding the defendant in contempt of court for failure to pay the ordered child support;
(b) that the court should have found a change in circumstances and modified the defendant’s support payments; and
(c) that he was denied substantial justice because of the irregularities in the court’s hearings and proceedings by failure of the court to require plaintiff to produce the records pertaining to income, by failure to hear certain evidence, by holding the primary hearing without the defendant’s counsel, and the general atmosphere and irregularities involved in the proceedings.

The first two assertions shall be considered together as the evidence in support of one is appropriate for the other. The court in its extensive “Statement of Reason for Decision (Substance)”, as provided in Supreme Court Rule 323(a), has stated the basis for its decision. But a brief recital of some of the evidence before the court gives the court’s basis for the decision. There is no dispute that (a) the defendant was behind in the support payments; (b) that the defendant had a housekeeper (whom he married on August 22, 1971); (c) that the defendant had income from wages and also farming, and that he was physically able to work; and (d) that he made no attempt to modify the decree until such time as the plaintiff obtained the show cause order. The court also found the amount of $50 per week to be reasonable and that the defendant did not adequately account for his income and expenditures.

The question of whether the defendant has been guilty of contempt is a question of fact to be decided by the trial court. (Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139.) The decision of the trial court shall not be disturbed unless against the manifest weight of the evidence. (Girolamo v. Girolamo, 5 Ill.App.3d 627, 632, 283 N.E.2d 713, 716.) We do not feel that the order is contrary to the manifest weight of the evidence or that the record discloses an abuse of discretion. (See also Loucks v. Loucks, 130 Ill.App.2d 961, 266 N.E.2d 924.) The burden is upon the moving party to show such circumstances as would require a modification. Also see Edwards v. Edwards, 125 Ill.App.2d 91, 259 N.E.2d 820, wherein the court states that equity does not look with favor upon modifying a decree when the petitioner is not in compliance although that alone will not cause a denial of the petition.

Referring to the defendant’s third point, we have thoroughly reviewed the record of the proceedings and can find insufficient basis in the defendant’s contention for a reversal of the proceedings. The trial court is allowed wide latitude in hearings of this nature. The record indicates that there was no substantial denial of justice to the defendant by the court’s actions. The contention that the defendant was denied justice is without merit and cited authority by the defendant are readüy distinguishable from the case at hand.

The judgment of the trial court is affirmed.

Judgment affirmed.

G. MORAN and CREES, JJ., concur.


author: Mr. JUSTICE JONES Mr. JUSTICE JONES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Custer, Defendant-Appellant.
    (No. 71-185;
    Fifth District
    December 27, 1972.

      Supplemental opinion filed upon denial of rehearing May 22, 1973.

      John J. Hoban, of Belleville, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel,) for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant was indicted and tried before a jury for the crime of forgery in that he knowingly delivered a document knowing it to have been made apparently capable of defrauding another in violation of Ill. Rev. Stat. 1969, ch. 38, sec. 17—3(a)(2). The jury returned a verdict of guilty and defendant was sentenced to a term of imprisonment of not less than two or more than fourteen years.

At the time of the occurrence in question defendant was an automobile dealer in Mascoutah, Illinois. His dealership had sold a number of automobiles to the Davies Supply Company of St. Louis. Defendant was personally acquainted with Eugene Conroy, the president of Davies Supply and had engaged in some conversation with him regarding the formation of a partnership to conduct racing car sales and racing business. Defendant stated that he and Conroy were partners in the business but Conroy denied this, saying that he had gone no further than to furnish defendant a recommendation to a British racing car concern and to permit defendant to show his name on a racing car. Defendant produced no written agreement or records to substantiate his claim of partnership.

The document in question was a promissory note dated December 22, 1969 and bearing the signature of Kenneth Wagner, a salesman for Davies Supply Company. The note was in the amount of $49,290.14. On the top margin of the note, above the line which delineated and encompassed the body of the note, was typed the name “Davies Supply.” Typed into the designated space in the body of the note was the business address of the Davies Supply Company. The signature of Kenneth Wagner as maker bore no inscription or legend to indicate he was signing the note as a representative of, or in behalf of, the Davies Supply Company, it stood alone as though the liability for the note was personally his. The name of Davies Supply Company did not appear anywhere in the body of the note and the obligation of the note was merely, “I, we or either of us, promise to pay to the order of the Bank of Belle-ville * * *.’’

Kenneth Picha was called by the People and testified that on December 22, and for approximately nine months prior, he was a vice-president and loan officer of the Bank of Belleville. On December 22, 1969 the defendant came to the bank and presented the described note to him as loan officer of the bank. He, Picha, accepted the note as an obligation of the Davies Supply Company and gave credit to defendant for the face amount of the note. There was no check or other directive from the Davies Supply Company that would authorize the bank to credit the account of defendant or otherwise give him the proceeds of the note. Picha further testified that he was a personal friend of defendant, had purchased automobiles from him at dealers’ cost, and visited with him on a social basis.

The defendant maintained a bank account for his automobile dealership with the First National Bank of Mascoutah. He obtained the proceeds of the promissory note by the use of two drafts which he had deposited with the Mascoutah bank. One of the drafts was dated December 17, 1969, payable to the order of BiU Custer (agency) in the amount of $43,297.14 and the other was dated December 9, 1969, payable to the j order of BiU Custer (agency) in the amount of $5,993.00. The amount of the two drafts exactly equal the amount of the note in question. The drafts were forwarded by the Mascoutah bank to the Bank of Belleville and the proceeds of the promissory note were used in honoring the drafts.

Kenneth Wagner testified that the signature on the note was not his. He furnished a handwriting exemplar of his signature which was placed in evidence. It was markedly different from the signature on the note. He further testified that he had not authorized anyone, including defendant, to sign his name to the note. Eugene Conroy testified that the signature contained on the note was not the signature of his employee, Kenneth Wagner, that as president of Davies Supply he did not authorize Mr. Wagner to sign tihe note and never knew the note existed until around Easter of 1970. To his knowledge Mr. Wagner had never signed notes to the Bank of Belleville on behalf of Davies Supply. He admitted on cross-examination that he had written a letter to the Bank of BelleviUe on company letterhead to tell them that Mr. Wagner had authority to sign for cars. He thought this letter was written around the end of 1969. He further testified that he did not know there were notes of Davies Supply Company at the Bank of Belleville with Kenneth Wagner’s name on them and that Davies Supply Company did not establish credit at the Bank of Belleville, although he personally did so.

The vice-president and cashier of the Bank of Belleville, Kenneth Oesterle, in response to defendant’s subpoena produced a liability ledger of the Bank of Belleville for Davies Supply Company which showed a series of approximately twenty-five notes dating from November 19, 1968 to December 26, 1969. Included in this series was an entry for December 22, 1969 showing a new note in the amount of $49,290.14. Prior to that entry the ledger showed there was no outstanding balance due from Davies Supply Company on any of the approximately twenty-two previous notes. The same bank officer also produced a ledger card for the $49,290.14 note. It showed four payments on the note with an outstanding balance of $1,057.14. The payments on the note had been made by defendant’s automobile agency, not Davies Supply Company. He also testified that to the best of his knowledge Davies Supply Company did not have an account in the Bank of Belleville in December 1969, he had no knowledge that Davies Supply Company was aware of the existence of the ledger sheet, the Bank of Belleville was never in possession of a corporate resolution from Davies Supply Company authorizing the extension of credit to the corporation, the ledger sheet transaction could have been set up by the defendant working with Picha in the bank. He further testified that the note transaction on December 22 was not handled in the manner customary for their bank.

Defendant testified in his own behalf and denied having seen the note in question before his indictment and denied signing the name of Kenneth Wagner to the note or delivering it to Picha at the Bank of Belleville on December 22. He stated that he was in Sebring, Florida on December 22 in connection with his racing car business. He produced an airline ticket containing his signaturej showing a date of issue of December 22, 1969 and a time stamp “December 22, 1969 at 1:12 P.M.” when he allegedly registered for the flight to St. Louis which left Florida at 4:10 P.M. and arrived in St. Louis at about 7:00 P.M. on December 22, 1969. The defendant also produced a copy of a press release made in connection with his automobile racing business the dateline of which shows the date of December 22, 1969 and the place as Sebring, Florida. On cross-examination defendant admitted receiving credit for the amount of the note in the Bank of Mascoutah and that the credit was received because he deposited drafts in his account there. He denied receiving credit because he deposited the note with the Bank of Belleville stating they could have gotten it from Conroy. Pie first testified that Conroy was a partner in the automobile dealership but later changed this to say that Conroy held his (defendant’s) shares as security. He stated that of the $49,290.14 deposited in his account that Davies Supply Company got credit for some of it since “Conroy” got a check in the amount of $13,000 payable to himself. Defendant testified that the $13,000 was for racing cars. He then asked for and received a recess to look up the particulars on the check but upon resumption of his testimony could only say that the check was issued in December 1969 and that it was given to Mr. Conroy to pay him for two 1968 Plymouths that came into his inventory as a trade-in. He did not produce the check.

Defendant initially contends that he was not proven guilty beyond a reasonable doubt. He states that the single issue to be determined by the jury was, “did the defendant deliver the promissory note described in the indictment to Kenneth Picha on December 22, 1969?” The argument is that the State’s case must stand or fall on the basis of the testimony of Kenneth Picha and that his testimony coupled with the corroborated alibi defense of the defendant conclusively shows that the defendant could not be guilty of the offense charged and further defined in the bill of particulars. On cross-examination Picha testified to his certainty that the defendant had delivered the note in person at the bank in BeHeville on the date of December 22, 1969, and no other date. Defendant’s position is that this testimony of Picha is inherently unreliable because there would be no particular reason for Picha to remember that defendant brought the note into the bank on December 22 since this transaction was one of many transactions Picha admitted having with defendant over a period of approximately three years and that he had accepted a number of promissory notes similar to the one in question signed by Kenneth Wagner.

Defendant’s alibi testimony would, if believed, constitute a defense to the charges made against him. His testimony was that he was in Sebring, Florida in connection with his racing car business on December 22, 1969, the date Mr. Picha testified defendant had given him the note in Belleville. This he sought to corroborate with an airplane ticket and a Sebring, Florida press release, both dated December 22, 1969.

But defendant is not entitled to have his alibi testimony accepted by the jury or this court as established facts. Its intrinsic worth is gathered from a consideration of many factors. It is subject to the same test of credibility as the evidence presented against him. When so examined it is found to be something less than infallible. For instance, it is possible that it was another, not defendant, who took the trip in question, utilized the airplane ticket and issued the press release. Although defendant stated he was in the company of the racing director of the race track, the testimony of the director was not offered. Also, the airplane ticket could have been purchased and signed by the defendant and left with another to have time stamped at 1:12 P.M. But a more plausible explanation of the transaction is found in defendant’s own testimony on cross-examination when he stated that the note could have been given to Picha the Friday night prior to going to Sebring for use at the bank Monday morning, December 22 and that it could have been a transaction of the previous Friday night when the items would have been dated for Monday business. Possibilities of this nature are numerous and we need not further speculate here. It was for the jury to consider such factors.

In sum we think that any question regarding the time of delivery of the note and the person who delivered it is properly resolved by a consideration of the weight and credibility of the evidence. Coupled with the questions surrounding defendant’s alibi and his admission that the items could have been prepared on the Friday prior to Monday, December 22, was defendant’s vagueness and inconsistency upon cross-examination. When all factors are considered we cannot say that the verdict of guilty returned by the jury was against the manifest weight of the evidence. It is their peculiar province to make this determination and we feel that their verdict is amply supported by the record and that their obvious disbelief of defendant’s alibi testimony and evidence was, under the circumstances, reasonable, and we are not disposed to overturn it here.

Defendant next contends that it was error for the court to permit the State to place in evidence the two drafts defendant had deposited in the Mascoutah bank, People’s exhibits 4 and 5. Prior to trial defendant had moved to compel disclosure of all evidence favorable to him and in control of the prosecution. The People’s answer to the motion was that they were in possession of no such evidence. Trial was held prior to the effective date of Supreme Court Rule 412 (Ill. Rev. Stat., ch. 110A, sec. 412) governing disclosure in criminal cases but defendant relies on People v. Tribbett, 90 Ill.App.2d 296, 232 N.E.2d 523. We think defendant’s argument is not well taken and that a discussion of the applicability of Tribbett and other similar authorities is unnecessary. The drafts were patently not evidence that would be considered favorable to defendant since they constituted an integral part of defendant’s plan to obtain and withdraw the $49,290.14 from tire Bank of Belleville. Accordingly the motion did not call for disclosure of the drafts since they were not evidence favorable to defendant. In any event, defendant is in no position to claim surprise or prejudice since the drafts were admittedly of his own making and he certainly knew of their existence and availability. The court properly exercised its discretion in admitting the notes into evidence in the absence of proper objection to them.

Of a somewhat similar vein is defendant’s argument that the court erred in failing to restrict the State’s evidence to the bill of particulars. This has reference to the court permitting admission into evidence of People’s exhibits 4 and 5 and permitting the State’s Attorney to question the defendant relative to the possibility of having taken the note to the bank on some date other than December 22. This argument, too, is not well taken. While it is true that the bill of particulars made no mention of the drafts and indicated that the date of the offense was the date on the note, this did not preclude consideration of the evidence, coming as it did, upon cross-examination and as part of the State’s rebuttal to defendant’s alibi. It was properly considered with relation to the credibility and worthiness of defendant’s alibi testimony, and was not part of the State’s case in chief. But even so, the stating of the date of the offense in the indictment and the bill of particulars in this case would not necessarily preclude the State from offering proof that the offense was in fact committed on a silghtly different date. The purpose of a bill of particulars is to provide more particular averments in order to enable the defendant to understand the nature of the charges against him or to prepare his defense. (People v, Borrelli, 392 Ill. 481, 64 N.E.2d 719.) Proof of the precise date of commission of an offense as alleged in an indictment is unnecessary, unless the allegation of a special time is an essential ingredient of the crime or the running of the period of limitations. (People v. Taylor, 391 Ill. 11, 62 N.E.2d 683; People v. Dore, 339 Ill. 415, 171 N.E. 554.) The date of December 22, 1969 was not an essential ingredient of the crime and it was therefore proper for the State to show that the crime could have occurred on a date other than that contained in the note. The only evidence regarding an alternate date for the offense was elicited from the defendant himself on cross-examination and he accordingly had no reason for complaint.

The defendant also points to alleged error of the coml in refusing his instruction on alibi. However, this argument is met by People v. Poe, 48 Ill.2d 506, 272 N.E.2d 28, in which the court reiterated its position taken in I.P.I., Criminal, No. 24.05, that no instruction be given on alibi because it is not an affirmative defense.

The defendant’s final point is that the court erred in denying the defendant’s post trial motion based upon the “newly discovered evidence” shown by the affidavits of defendant’s wife and a handwriting expert. The argument is without merit. The affidavit of defendant’s wife stated that she signed the name of Kenneth Wagner to several blank notes in the presence of Mr. Picha and affidavits of the handwriting expert state that the signature of Kenneth Wagner on the note in question was in the handwriting of defendant’s wife and was not made by defendant.

It has long been established that a court will consider newly discovered evidence as a possible basis for a new trial only if that evidence could not have been discovered before the trial by the exercise of due diligence. (People v. Dukes, 19 Ill.2d 532, 169 N.E.2d 84.) It has also been held that a new trial is not warranted if the defendant is, at the time of the trial, in possession of the evidence urged as grounds for the new trial. (People v. Levine, 342 Ill. 353, 174 N.E. 378.) It appears from the face of the three affidavits supporting defendant’s motion for new trial based on newly discovered evidence that defendant’s wife offered prior to the trial to testify but her offer was rejected by defendant because she might subject herself to prosecution. Further, that the handwriting expert had a copy of the note in question a month before the trial for purposes of making handwriting comparisons but defendant failed or neglected to have him testify at the trial and offered no statement or explanation for his absence. In a motion for new trial based upon newly discovered evidence the defendant has the burden of rebutting the presumption that the verdict was correct. (People v. Spears, 70 Ill.App.2d 424, 217 N.E.2d 813.) From a consideration of the affidavits submitted here we find that defendant has failed to meet that burden.

For the foregoing reasons the judgment of the trial court will be affirmed.

Affirmed.

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

SUPPLEMENTAL OPINION UPON DENIAL OF PETITION FOR REHEARING

Mr. JUSTICE JONES

delivered the opinion of the court:

The opinion in this case was filed December 27, 1972. On January 1, 1973 the new Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1001—1—1 et seq.) became effective. Thereafter, but within the time established by the applicable Supreme Court Rule, the defendant filed his petition for rehearing.

At the time defendant filed his petition for rehearing this court’s mandate had not issued and the time for filing a petition for leave to appeal to the Supreme Court had not expired. Accordingly, the decision of this court had not become a final adjudication, the appeal was still pending, and we retain jurisdiction to alter or modify our decision. See the supplemental opinion on rehearing in People v. McCloskey, 2 Ill.App.3d 892, 274 N.E.2d 358. Although the additional supplemental opinion in McCloskey apparently made dicta of its supplemental opinion on rehearing we think the reasoning sound and adopt it here.

Under the authority of People v. Shadowens, 10 Ill.App.3d 450, 294 N.E.2d 107 and People v. Hendrickson (1973), 11 Ill.App.3d 219, the sentence imposed in this case should be in conformity with the Unified Code of Corrections. Since forgery is a Class 3 felony punishable by a sentence of one to ten years and sec. 5—8—1 of the Code provides for a minimum term of one year unless certain findings are made by the court, and since art. 3 of the Code provides for certain pre-sentence procedures, it is necessary that this case be remanded to the trial court for the requisite hearings and imposition of a sentence in conformity with the requirements of the Code.

In all other respects defendant’s petition for rehearing is denied.

Petition for rehearing denied. Cause remanded for resentencing.

EBERSPACHER and G. MORAN, JJ., concur.