text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Lee Howell et al., Defendants—(Jerry Lockett et al., Defendants-Apellants.)
    (No. 11555;
    Fourth District
    May 24, 1973.

      John F. McNichols, of Defender Project, of Springfield, and John O. Vogel, of Glen Ellyn, (Bruce L. Herr and Paul David Kelley, of counsel,) for appellants.
    Richard A. Hollis, State’s Attorney, of Springfield, (Gerald Lanter, Assistant State’s Attorney, and David Dorris, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Lockett and McDonald, together with one Howell, were charged with armed robbery. Lockett appeals his conviction upon a negotiated plea of guilty to theft of over $150 and a sentence of one to six years. McDonald appeals a conviction upon his plea of guilty to armed robbery and a sentence of two to twelve years.

Lockett contends that the court erred in accepting his plea of guilty to the offense of theft over $150. It is asserted that since there was no indictment upon the theft charge, the court had no jurisdiction to convict upon the negotiated plea, and further that the theft over $150 is not a lesser included offense to armed robbery.

The record shows that following the guilty pleas of McDonald and Howell, Lockett’s counsel advised the court that defendant had negotiated a plea with the State’s Attorney to such offense of theft and a sentence of one to six years. No challenge is made to either the careful admonition by the trial court upon the making of the plea, or the sufficiency of the factual basis thereof.

It appears that at the time the court was advised of the plea negotiation, counsel spoke in terms of amending the indictment on its face by consent or stipulation. Such was not done. It is clear that the court proceeded upon the premise that the theft would be a lesser included offense to armed robbery.

Lockett misapprehends the issue of the court’s jurisdiction. An indictment is void when it is insufficient to give the court jurisdiction of the subject matter. (People v. Reed, 33 Ill.2d 535, 213 N.E.2d 278.) The rule is that a plea of guilty cannot confer jurisdiction upon the court if the indictment fails to allege a violation of public law. (People v. Fore, 384 Ill. 455, 51 N.E.2d 548), or if there is a total failure to charge a criminal offense. (People v. Stewart, 3 Ill.App.3d 699, 279 N.E.2d 53.) Here, there is no contention that there was a failure to charge a criminal offense, i.e., the armed robbery of a named person on a stated date. The indictment alleged acts and doings of these defendants which did charge a criminal offense. We note that in the cases cited by defendant, the jurisdiction of the court failed because the indictment was insufficient to allege any criminal offense. People v. Fore, supra, People v. Edge, 406 Ill 490, 94 N.E.2d 359, and People v. Harris, 394 Ill. 325, 68 N.E.2d 728.

Lockett asserts that theft over $150 is not a lesser included offense in a charge of armed robbery. It appears obvious that within the language of Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1, armed robbery includes the knowing obtaining of an unauthorized control of the property of another, and involves obtaining control of property by threat. (People v. Henderson, 72 Ill.App.2d 89, 218 N.E.2d 795.) It is contended that such statute requires the element of intent to use the property to deprive the owner permanently of such, and that such element of intent is not necessary or required to be proved in armed robbery.

It has consistently been the authority in this State that where robbery is charged, there may be a conviction of theft where the evidence shows the property was not taken by violence or intimidation. (People v. Rusk, 348 Ill. 218, 180 N.E. 863.) The use of force or intimidation is the difference between theft and robbery. (People v. Ryan, 239 Ill. 410, 88 N.E. 170, People v. Boer, 262 Ill. 152, 104 N.E. 162.) We note that these opinions related to statutes wherein larceny was held to be a specific intent crime as distinguished from robbery, and that the present Criminal Code does not essentially alter the elements of the two offenses. Black’s Law Dictionary notes that robbery is a violent taking of property:

“[Ujnder such circumstances that in the absence of violence or threats, the act committed would be theft.”

In People v. Ferrara, 111 Ill.App.2d 472, 250 N.E.2d 530, defendant was charged with theft under $150 and further charged with a prior conviction for robbery under the statutory provisions for enhanced penalty. It was there argued that robbery was not “theft” under the provisions of Ill. Rev. Stat. 1969, ch. 38, par. 16—1. The court described robbery as an aggravated form of theft.

If defendant argues that armed robbery involves a less culpable mental state than that in theft over $150, we are not persuaded. In paraphrase of the language of the court in People v. King, 34 Ill.2d 199, 215 N.E.2d 223, which held that possession of narcotics was a lesser included offense in a charge of sale, we know of no case of armed robbery where there was an absence of intent to deprive the owner permanently.

Locket relies upon People v. Tolentino, 68 Ill.App.2d 480, 216 N.E.2d 191, wherein defendant was charged with robbery but upon a bench trial was convicted of theft. Tolentino contended that the conviction was inconsistent with the indictment, but the court noted that theft was a lesser included offense to robbery, and that the offenses were distinguished by the “presence or absence of force or intimidation”. The court concluded that the Tolentino indictment in particular contained averments sufficient to charge both the offense of theft and of robbery in a single count. (See also People v. Maiom, 355 Ill. 370, 189 N.E. 276.) Such determination, however, does not require the conclusion that theft may not be a lesser included offense in an indictment for robbery, and such conclusion does not, in effect, overrule cases in the Illinois Supreme Court.

Lockett has filed a supplemental brief asserting that he was but 17 years of age on the date of the offense, December 18, 1970, and that the cause must be reversed upon the authority of People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189. Ellis holds that the Juvenile Court Act. (Ill. Rev. Stat. 1971, ch. 37, par. 702—2) is unconstitutional where the offense occurred after July 1, 1971, the effective date of the Constitution of 1970, and before the effective date of the Code of Corrections on January 1, 1973. The offense of Lockett does not come within the determination made in Ellis.

Lockett points out, and the prosecution agrees, that the written order of judgment and sentence contained in the record inadvertently recites that the defendant was adjudged guilty of the offense of armed robbery, and that the cause should be remanded to the trial court to vacate such judgment and to enter judgment upon the plea received by the court.

McDonald urges that it was an abuse of discretion on the part of the trial court to deny his petition for probation after conviction of armed robbery. After hearing, the trial court noted that the armed acts created a substantial possibility of death or serious injury, that wire and tape were carried to the scene of the robbery to bind and gag the victims indicating a planned foray, and that a 17 year old boy was employed to scput the scene. Evidence in behalf of defendant discloses that despite some technical training, he had quit regular employment for occasional jobs as a musician, and for some time had contributed but little for the support of his family. We can find nothing in the record supporting a conclusion that the trial court abused its discretion. (People v. Gomez, 29 Ill.2d 432, 194 N.E.2d 299, and People v. Cummings, 125 Ill.App.2d 458, 261 N.E.2d 33), but on the contrary, it appears that the court did make an effective judicial determination. People v. McAndrew, 96 Ill.App.2d 441, 239 N.E.2d 314.

McDonald also argues that the sentence is excessive and appears to urge that the sentence should be reduced to a term of two to three years. It is apparent that such a sentence does not provide any factor of indeterminancy. It is noted that under the Code of Corrections now in effect. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 18—2), armed robbery is a Class I felony and that the minimum term for such offense is four years. (See ch. 38, par. 1005 — 8—1(c)(2).) Defendant cites People v. Umphers, 133 Ill.App.2d 853, 272 N.E.2d 278, and People v. Bowlin, 133 Ill.App.2d 837, 272 N.E.2d 282. Such cases relate to sentence reductions for burglary and have little persuasive value upon the violent offense of armed robbery.

The conviction of McDonald is affirmed. The conviction of Lockett is affirmed, but the cause is remanded to the trial court with directions to vacate the judgment of conviction for armed robbery and to enter a judgment order upon the plea of guilty to theft over $150 which provides credit for time served.

Convictions affirmed, cause remanded with directions.

SMITH, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Johnson, Defendant-Appellant.
    (No. 11576;
    Fourth District
    May 24, 1973.

      John F. McNichols, of Defender Project, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, (Arthur J. Inman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Jerome Johnson was charged, in an eleven count indictment, with the crime of murder. He was convicted in a bench trial and sentenced to an indeterminate term of 20 to 30 years in the penitentiary.

The victim of the crime was Thomas Porter, a 12-year-old child with whom defendant, an admitted homosexual, became acquainted while defendant was employed at the Roys’ Club in Springfield, Illinois. Defendant confessed that the deceased came to his home, that he was “playing” with the boy, that the boy became excited and wanted defendant to quit, that the boy was laughing and giggling whereupon defendant placed a pillow over the boy’s head in an effort to quiet him. Defendant then buried the child’s body in his basement where it was found, in an advanced state of decomposition, after defendant had confessed. Defendant, in his confession, stated that he did not intend to kill the boy, and that he tried to revive him. The defendant did not testify in his own behalf. Defendant urges several assignments of error, only one of which we will consider at this time.

At the trial the defendant maintained that he was insane at the time of the commission of the acts which resulted in Porter’s death, and this was his sole defense. He urges that the denial of his motion for continuance, on grounds that his only witnesses in support of the defense were unavailable, was error. The record on this issue is confused, muddled and incomplete. On October 20, 1970, at the conclusion of trial before a jury which found defendant competent to stand trial, the defendant was arraigned and entered a plea of not guilty to the charges. On Wednesday, January 6, 1971, Judge William H. Chamberlain, who had presided over the competency hearing, set trial on the indictments before Judge Creel Douglass commencing Monday, January 11, 1971. On the following day, Thursday, January 7, 1971, the defendant filed a verified motion for continuance under the provisions of Ill. Rev. Stat. 1969, ch. 38, pars. 114 — 4(a), 114 — 4(b)(3), which in pertinent part provides: “The defendant # * may move for a continuance. If the motion is made more than 30 days after arraignment the court may require that it be supported by affidavit * * * A motion for continuance made by defendant * # * may be granted when: » # *

A material witness is unavailable and the defense will be prejudiced by the absence of his testimony; however, this shall not be a ground for continuance if the State will stipulate that the testimony of the witness would be as alleged; * *

The motion for continuance stated that both of defendant’s psychiatrists would be unavailable to testify in defendant’s behalf at the trial scheduled to commence on the following Monday, January 11, 1971. The motion stated that Dr. Baumann was ill, and confined to St. John’s Hospital, and that the other psychiatrist was then in the State of Florida. The motion continued that the testimony of both doctors was crucial to the defense, that the defendant would be prejudiced by being tried without such testimony, and prayed that trial be postponed for at least 30 days. On the same day that the motion was filed, January 7, 1971, Judge Douglass heard the motion for continuance. At the hearing defense counsel stated that he was willing to go to trial on Monday, January 11th with the understanding that later in February, when his two psychiatrists were available, the court would receive their testimony. The State’s Attorney objected saying “I don’t think the defense has the right to divide this case.” He also objected to the allowance of the motion because it did not ask for “# # * some specific trial setting * * At this juncture both the State’s Attorney and defense counsel commenced talking about two “suggested stipulations” which were appended to the motion for continuance. During the subsequent trial they were introduced into evidence as defendant’s exhibits 1 and 2 and are as follows:

STIPULATION OF THE TESTIMONY OF DR. DAVID V. HICKS

If Dr. David V. Hicks was called he would testify that he is a licensed physician authorized to practice in the State of Illinois, and that he is also a licensed psychiatrist authorized to practice in the State of Illinois. He limits his practice to the field of psychiatry. He has obtained and received all the necessary background and education which would qualify him as an expert in the field of psychiatry and capable of testifying as to the sanity of Jerome Johnson.

He would further state that he had an opportunity to personally interview Jerome Johnson. He had available to him numerous tests that were run on Jerome Johnson for psychological evaluation. That based on his examination and based on the tests that were run on Jerome Johnson he came to his conclusion as an expert in the field of psychiatry that Jerome Johnson was at the time of his interview an insane person.

He would further testify that at this time Jerome Johnson is insane and that at the time of the alleged homicide on June 26,1970, Jerome Johnson was an insane person.

He would further testify that at the time of the occasion of the alleged offense on June 26, 1970, the symptoms of this mental disease would be much more prevalent than they are today.

Jerome Johnson has a schizophrenic profile. He is a person that is insane and was not criminally responsible on June 26, 1970, as a result of this mental disease.

He lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law because of this mental disease.

* * *

STIPULATION OF THE TESTIMONY OF DR. MILTON C. BAUMANN

If Dr. Milton C. Baumann was called to testify he would state that he is a licensed physician authorized to practice in the State of Illinois. His practice is limited to neurology and psychiatry. He is a licensed psychiatrist having extensive education and training in the field of psychiatry. He would qualify in every respect as expert in the field of psychiatry, and would show by his testimony that he is authorized to testify as expert in the field of psychiatry, and as to the sanity of Jerome Johnson.

Dr. Baumann would testify that he personally examined Jerome Johnson. Jerome Johnson appeared at his clinic, Springfield, Illinois and went under a series of psychological tests. While appearing at his clinic in Springfield, Illinois, a licensed psychiatrist by the name of Dr. David V. Hicks also examined Jerome Johnson.

Dr. Baumann would testify that in his opinion, as an expert, based on the tests that were conducted on Jerome Johnson and based on his personal interview with Jerome Johnson that in his professional opinion Jerome Johnson is insane, that Jerome Johnson was insane at the time of his interviews, and at the time of his testing, and further that he is insane now, and that he was insane on June 26, 1970, the date of the alleged homicide. Further that Jerome Johnson is a simple schizophrenic, and because of this schizophrenic condition, or this mental disease, Jerome Johnson lacks substantial capacity to appreciate the criminality of his conduct and cannot conform his conduct to the requirements of the law. And because of the aforementioned mental disease Jerome Johnson was not criminally responsible for his conduct on June 26, 1970.

# # *

The State’s Attorney stated to the Court that he objected to the “stipulations” since they contained no facts, only conclusions. He conceded that Dr. Baumann was ill, and would be unavailable to testify during the trial, but argued that Dr. Hicks could be compelled to return from Florida and appear, to which defense counsel responded that Dr. Hick’s attorney had told him that Hicks could not come into the State of Illinois at the particular time in question because of marital difficulties which would be resolved within thirty days. He also stated that he had had no recent opportunity to talk to Drs. Baumann (having learned only the preceding day of his illness) and Hicks in order to secure factual data for the purpose of incorporating it in a stipulation, that he only knew that each would testify that defendant was insane at the time of the occurrence. The parties then began arguing about some of the language in the proposed stipulations, the State’s Attorney insisting that some be stricken, and the defendant insisting that it not be. This rather lengthy argument concluded by the State’s Attorney saying that he would agree to the stipulation provided certain portions were stricken and with defense counsel refusing to agree to striking any portions of the stipulations. No agreement was reached about the stipulation. No stipulation was entered into. The court then stated that the motion for continuance was granted to February 23rd. The State’s Attorney then inquired (and this is demonstrative of the confused state of the proceedings since, as we have noted, no stipulation had been agreed upon) “Even though we have stipulated?” To which the trial judge responded “I think so. I think the Court should have the testimony of the two psychiatrists.”

Venturing further into unreality the State’s Attorney stated “The stipulation of the People is binding only insofar as it applies to the motion for continuance and has no binding on the trial in this case. It is only binding to prevent a further continuance.” The trial judge then reversed his ruling that the continuance was granted to February 23, saying “Well, let me read more about it, and refresh my memory and make the final decision tomorrow morning.” Under date of January 8, 1971, the following docket entry appears: “In camera inspection of police file held. Motion for continuance denied. Stipulation as to testing of Dr. Hicks accepted by Court and stipulation as to the testimony of Dr. Baumann accepted omitting the last sentence therein.”

On January 13, 1971, prior to the introduction of any evidence, defense counsel stated that “When we discussed the matter of continuance the other day, none of that was taken down on the record.” (We assume that this refers to a further discussion had with the trial judge on January 8, 1971, in view of the foregoing docket entry). He went on to state that he wanted the record to show that he had then objected to the refusal of the court to grant the motion for continuance, that the court had, in denying the motion “s * * allowed a stipulation”, that no stipulation had been entered into, that tire State “s # * did not agree with it * * *” but had instead wanted “* * * certain parts stricken and certain parts kept * * to which the court responded, “Let the record show your objection and let it stand as it is. Overruled.” The trial then commenced. During the trial, the People filed a motion (granted January 14, 1971) pursuant to section 115 — 6 of the Criminal Code reciting that defendant had given notice of his intention to rely on the defense of insanity and requesting that the Court enter an order that Dr. Robert Chapman, a psychiatrist, be appointed to examine defendant. The motion prayed that the doctor “* * * make a report of such examination to the Court.” The trial judge allowed the motion and directed that Dr. Chapman “* * * make a report in writing to the attorneys and to the Court concerning the results of such examination.” Dr. Chapman did in fact make such an examination and the results thereof are contained in a four page document which appears at pages 42, 43, 44 and 45 of the common law record. Dr. Chapman was not called as a witness at the trial nor was there any stipulation as to the use of the report. His report concludes that defendant was sane at the time of the occurrence in question and states, at length, the reasons upon which he predicated his opinion.

Having put in all of his evidence on behalf of the People and prior to resting his case, the State’s Attorney asked the court to rule as to whether or not there was, at that point, any evidence raising the issue of insanity. The court ruled that there was none, whereupon the People rested.

At this juncture the situation of the defendant was this: The court had “accepted” a “stipulation” to which no one had stipulated, and this over the objection of the defendant. The motion for continuance having been denied, he had not a single witness to support his defense of insanity. The court also had before it, in the form of Dr. Chapman’s report, positive evidence that defendant was not insane. Confronted with this state of affairs defendant “submitted” to the court the “stipulations” above set forth. The State’s Attorney promptly objected saying that these were matters “* * * not in the record” and insisted that the defendant have the two documents marked as Exhibits and then offered in evidence. The documents were then marked as defendant’s exhibits 1 and 2 whereupon the State’s Attorney objected to the exhibits on the ground that there were insufficient facts contained therein to support the opinion given. The court overruled the objection and the defense rested. In rebuttal, among others, the People called Dr. Albert Ludin, a psychiatrist, who had examined the defendant on July 14, 1970, and who testified that defendant was “* * * a schzoid individual with neurotic tendencies of

compulsive obsessive type in the area of sex.” The doctor’s direct testimony covers some nine pages of the record. His conclusion was that defendant was sane at the time of the occurrence. The People also called Officers Bowman, Dickerson and DeMarco who testified that defendant was sane in their judgments, on the occasions they had observed him following the date of the occurrence. The trial judge then found defendant to have been sane on the date in question.

The statute under which defendant sought a continuance clearly makes the granting of such a motion discretionary with the trial judge since it provides that the motion “* * * may be granted * * The denial of a motion in continuance will not be considered as error unless an abuse of discretion can be found. (People v. Bodine, 114 Ill.App.2d 205, 252 N.E.2d 234.) Here that discretion was abused.

The court heard the testimony of the witnesses called by the People on the issue of defendant’s sanity, his sole defense, observed them while testifying and was apprised, in detail, of the reasons and facts supporting their opinions. By denying defendant’s motion for continuance he, in effect, forced the defendant to rely upon two documents to which neither side had stipulated, which contained only the statements that Drs. Baumann and Hicks had examined the defendant and would testify that in their opinion defendant was insane at the time in question. The nature and extent of their examinations and tests were not before the Court. The reasons and facts upon which their opinions were founded were not before the court. In short, the court’s action deprived the defendant of the opportunity to persuade on the sole issue upon which he relied for his defense. This was error.

In addition it was error for the court to receive and consider the report of Dr. Chapman. Due process requires that defendant be afforded the right to confront and to cross-examine witnesses, and this was denied him. Section 115 — 6 of the Criminal Code appears to be a provision which affords the People, in the event of a defense of insanity asserted to procure psychiatric examination of the defendant by a doctor chosen by tire State’s Attorney. The statute provides that a copy of the doctor’s report is to be furnished to defendant’s attorney, it does not provide that a copy be furnished to the trial judge as was done here, nor does the statute provide that the report is evidence which may be used against the defendant. The statute clearly does not contemplate that a report of psychiatric examination procured by court order may be substituted for sworn testimony, and in derrogation of defendant’s right to confront and to cross-examine the witness.

For these reasons, the judgment of the trial court finding defendant to have been sane at the time of the commission of the crime is reversed. This cause is remanded for an evidentiary hearing on that issue. If, after the ordered evidentiary hearing, the finding of the trial court is that the defendant was not guilty by reason of insanity, the judgment of conviction shall be vacated, and a judgment of not guilty by reason of insanity shall be entered and appropriate further proceedings instituted. Such judgment shall be certified to this court and this appeal thereafter dismissed as moot. If the finding is one that the defendant was sane at the time of the offense, such finding together with the report of proceedings of said evidentiary hearing shall be certified to this court. Our opinion on other issues in this appeal will be held in abeyance pending determination of the insanity issue.

Reversed in part and remanded with directions.

CRAVEN, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles R. Neal, Defendant-Appellant.
    (No. 11773;
    Fourth District
    May 24, 1973.
    William Forbes Nissen and Edwin John Apenbrink, both of Quincy, for appellant.
    Matthew A. Hutmacher, Assistant State’s Attorney, of Quincy, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The Defendant-Appellant Charles R. Neal was tried before a jury and convicted of aggravated assault, committed with a deadly weapon, in violation of Ill. Rev. Stat. 1969, ch. 38, sec. 12—2(a)(1). After hearing in aggravation and mitigation the defendant was sentenced to an indeterminate term, the minimum being fixed at 18 months and the maximum at 3 years. Defendant appeals from the judgment and sentence.

The defendant urges that the State failed to prove his guilt beyond a reasonable doubt. We note that the appellant did not abstract any of the evidence on this issue as required by Supreme Court Rule 342(e) (3) and the statement of facts on the issue contained no references to the pages of the record on appeal as required by Supreme Court Rule 341(e)(6). In resolving the issue we therefore had no choice but to search the record.

The victim of the assault was one AHen Curtis Haskins. There were three eye witnesses who saw various portions of the incident in question. They were Haskins, John Miles and Barbara Holliday. It would serve no useful purpose, nor would there be any precedential value, in reciting their- testimony in detail. While there are some discrepancies in the testimony concerning the precise location of the defendant at the time of the offense, the failure of the witnesses to pinpoint defendant’s geographical location at most affects the credibility of the witnesses, which is a matter for the jury’s determination. (People v. Robinson, 30 Ill.2d 437, 440, 197 N.E.2d 45.) All three witnesses positively identified defendant Neal as the assailant. The relatively minor variations in the testimony of the witnesses were not sufficient to create a reasonable doubt of defendant’s guilt.

The defendant also argues that the proof is insufficient in that the State failed to' produce the weapon which was in defendant’s possession at the time of the incident. Two of the witnesses testified that they saw the gun in defendant’s hand. There is no requirement in the law that the weapon in question must be produced before the jury. Defendant’s possession and use of the weapon in committing the assault may be established by competent testimony which leads to that conclusion. People v. Harrison, 359 Ill. 295, 299, 194 N.E. 518.

Lastly, defendant argues that his sentence is excessive and violative of the principles of indeterminancy. Section 8 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1008—2—4) provides that the sentencing provisions of the Code are applicable to aH cases which had not reached final adjudication prior to January 1, 1973, the effective date of the Code. A case pending on appeal has not reached final adjudication. (People v. Bailey, 1 Ill.App.3d 161, 273 N.E.2d 74; People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750.) Section 12 — 2(b) of the Criminal Code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 12—2(b)) designates aggravated assault as a Class A misdemeanor and section 8— 3(1) of the Unified Code of Corrections provides that the sentence for a Class A misdemeanor is “for any term less than one year.”

Defendant’s conviction is affirmed. The sentence imposed is vacated, and the cause remanded to the trial court with directions to reimpose sentence under the applicable provisions of the Code of Corrections.

Affirmed in part, sentence vacated, and cause remanded with directions.

CRAVEN, P. J., and SMITH, J„ concur.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Henne, Defendant-Appellant.
    (No. 11788;
    Fourth District
    May 24, 1973.
    Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    L. Stanton Dotson, State’s Attorney, of Charleston, (Michael Prall, of Circuit Attorney Project, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from an order of the circuit court of Coles County finding him guilty of contempt of court and confining him in the Coles County jail “until such time as the order to produce handwriting samples aforesaid is complied with”. The defendant was released on a $1000 recognizance bond pending appeal of the contempt order and sanction. We affirm.

The three indictments were brought against the defendant for forgery. He was tried by the jury on one and acquitted. Thereafter prior to trial on the other indictments, the prosecution during pretrial proceedings filed a motion asking that the defendant be ordered to provide the prosecution with handwriting samples. The court ordered the defendant to “give handwriting samples of all the checks set forth in the indictments in the above-captioned cases, and said defendant is ordered to provide at least four samples of each check.” The court was advised that the defendant would not comply with this order and the court then found defendant in contempt of court and ordered him committed to the Coles County jail. The order was entered prior to the effective date of Rule No. 413(a) (viii), which requires a defendant to “provide a sample of his handwriting” — subject to constitutional limitations. The order of the circuit court must be scrutinized to determine whether it invades any of the defendant’s constitutional rights at the time it was entered. We conclude that they were not.

The basic thrust of the defendant’s position is that there is a vast difference between the language of the fifth amendment to the United States Constitution which provides “No person shall be compelled in any criminal case to be a witness against himself # # and the Illinois Constitution. The defendant does not deny that under Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d, 87 S.Ct. 1951, the order here entered would not violate Federal constitutional restrictions. He insists, however, that the Federal restriction is much different than the Illinois Constitution of 1870 or 1970. Section 10, art. I, of the 1970 Illinois Constitution is identical with the language used in the Illinois Constitution of 1870 and provides “No person shall be compelled in a criminal case to give evidence against himself * * (Emphasis supplied.) The defendant contends that the word “give” places the Illinois constitutional provision in a posture more restrictive than that in the Federal Constitution. He argues that the term “give” precludes the defendant from being required to perform a volitional act creating or transferring from his possession the evidence solicited. It prevents the defendant from performing the volitional act of creating the handwriting samples which may subsequently be used against him and is thus far removed from the passive cooperation of appearing in a line-up or being photographed. Thus, he reasons that the writing exemplars are prohibited by the Illinois Constitution because it requires affirmative action on his part.

We think that this differentiation between the Federal and the Illinois Constitution is without merit. In the recent case of People ex rel. Hanrahan v. Power, 54 Ill.2d 153, the Illinois Supreme Court issued a mandamus against the trial judge who quashed a subpoena duces tecum and directed the court to expunge the order which in effect held that a party need not furnish handwriting exemplars. In its discussion of the case, our supreme court held that the difference between the Federal and the Illinois Constitution is a difference in semantics rather than in substance and has given each the same general construction. In so doing, the supreme court quoted with approval from Dionisio v. United States, 35 L.Ed.2d 67, 74, 93 S.Ct. 764, 767 and stated: “The Court of Appeals correctly rejected the contention that the compelled production of the voice exemplars would violate the Fifth Amendment. It has long, been held that the compeUed display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination.”

It also quoted from United States v. Mam, 35 L.Ed.2d 99, 93 S.Ct. 774, in which the court stated: “Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical | characteristics of a persons script than there is in the tone of voice.” (Citing cases.) Our supreme court then held that these decisions dispose of any claims under the fourth, fifth, and fourteenth amendments to the Federal Constitution. j

In the case at bar, there is a slight difference in the facts. Here the request and the order were for the defendant to make four copies of the forged check. The State’s Attorney readily said that these checks would be used by way of comparison and not offered in evidence to prove the substantive facts of the forgery. The refusal of the defendant to comply with this constitutional order of the circuit court is civil contempt and punishable as such.

Accordingly, the order adjudging the defendant in contempt of court is affirmed and the cause remanded to the circuit court to proceed in conformity herewith and impose such proper sanctions as may be required upon refusal of the defendant to comply.

Judgment affirmed; cause remanded for further proceedings.

CRAVEN, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence J. Luechtefeld, Defendant-Appellant.
    (No. 11835;
    Fourth District
    May 24, 1973.

      John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Scott B. Diamond, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from the order of the trial court which dismissed his petition for post-conviction without an evidentiary hearing.

Defendant pleaded guilty to a charge of theft over $150 and was admitted to probation. Thereafter, probation was revoked and a sentence of four to ten years was imposed.

Defendant’s pro se petition on post-conviction alleges that his plea was coerced by a representation that the State’s Attorney would recommend a sentence of two to four, but that such recommendation was not made, that the court did not ascertain that the plea was understandingly made and that the defendant was not admonished as to the consequences of the plea.

It appears that defendant sent a pro se “notice of appeal” to the court more than thirty days after revocation and that such was supported by the affidavit of counsel as to a misunderstanding concerning a notice of appeal. It further appears, however, that the clerk of the court was directed to take no action on such “notice” for want of compliance with the rules concerning late appeals.

The post-conviction petition at issue was filed a substantial period of time subsequent to the “notice of appeal”. The attorney appointed to represent defendant on the post-conviction petition filed a purported certificate of compliance with Supreme Court Rule 651(c). It appears, however, that at the time that defendant’s petition was dismissed, no report of the proceedings had been transcribed or filed upon matters heard in open court, including jury waiver, probation hearing and the hearing on revocation and sentence.

Upon this appeal it is urged that counsel appointed on post-conviction did not adequately fulfill his responsibilities. During oral argument it was suggested that the stenographic notes of various portions of the proceedings in open court had been lost. Pursuant to this court’s request counsel have made inquiry and have joined in a stipulation that the Stenographic notes, do, in fact, exist and can be transcribed.

Compliance with Supreme Court Rule 651(c) necessarily requires access to the transcript of the several proceedings if such can be prepared. (People v. Eatmon, 47 Ill.2d 90, 264 N.E.2d 194.) Issues of a constitutional quality may arise on revocation of probation. People v. Pier, 51 Ill.2d 96, 281 N.E.2d 289.

Supreme Court Rule 651(c) explicitly requires a showing that counsel has examined the reports of the proceedings. People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663.

The order of the court dismissing defendant’s post-conviction petition is reversed and the cause is remanded, with directions to order the filing of reports of all proceedings in the cause, to appoint counsel to represent defendant on his pro se petition, and to make such amendment to such petition as may be necessary for an adequate representation of petitioner’s contentions and that the cause proceed as provided in Ill. Rev. Stat. 1971, ch. 38, par. 122 and its several subparagraphs and in accordance with the provisions of Supreme Court Rule 651.

Reversed and remanded with directions.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cecil Tomer, Defendant-Appellant.
    (No. 11954;
    Fourth District
    May 24, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, of counsel,) for appellant.
    L. Stanton Dotson, State’s Attorney, of Charleston, (John A. Beyer, of Circuit Attorney Project, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-Appellant Cecil Tomer was indicted on September 21,1970, with the burglary of the residence of one Robert J. Austin. He was tried before a jury, convicted and sentenced to an indeterminate term of 10 to 20 years in the penitentiary.

On appeal defendant urges that the evidence fails to establish his guilt beyond a reasonable doubt. In support of this proposition he argues that the testimony of an alleged accomplice, upon which the State’s case was substantially based, was inherently incredible and unworthy of belief. However, the uncorroborated testimony of an accomplice is sufficient to warrant a conviction if it satisfies the jury beyond a reasonable doubt. (People v. Hermens, 5 Ill.2d 277, 125 N.E.2d 500.) “* * * the testimony of an accomplice, even though it is attended with infirmities (such as malice toward the accused, promises of leniency, etc.) and uncorroborated, is sufficient to sustain a guilty finding if it satisfies the jury beyond a reasonable doubt [citations], and * * * we will not disturb a conviction based thereon unless it is plainly apparent that such degree of proof is lacking.” (People v. Wollenberg, 37 Ill.2d 480, 484-485, 229 N.E.2d 490.) The jury was properly instructed as to the manner in which it was to weigh the testimony of an accomplice. Examination of the record impels the conclusion that the question here is the credibility of the witnesses which, of course, is resolved by the verdict of the jury. On the issue of reasonable doubt we find that there was sufficient evidence to convict. We see no useful purpose to be served in reciting the evidence and, pursuant to Supreme Court Rule 23, we “* * * reject defendant’s contention that the evidence was insufficient.” People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750.

Defendant’s remaining assignment of error is that his sentence is excessive. The record discloses prior convictions for petty larceny, armed robbery, burglary, unlawful use of weapons and an escape conviction. There are also two parole violations. This record commences in 1947 and culminates in 1971. It does not warrant the exercise of our authority to reduce sentence under Rule 615(b)(4). Section 8 — 2—A of the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008—2—4) provides that the sentencing provisions of the Code are applicable to all cases which had not reached final adjudication prior to January 1, 1973, the effective date of the Code. A case pending on appeal has not reached final adjudication. (People v. Bailey, 1 Ill.App.3d 161, 273 N.E.2d 74; People v. Lobb, 9 Ill.App.3d 650, 292 N.E.2d 750.)

Ill. Rev. Stat, 1972 Supp., ch. 38, par. 19—1(b), classifies burglary as a Class 2 felony. Section 5 — 8—1(3) of the Code of Corrections provides that for a Class 2 felony the maximum term shall be any term in excess of one year not exceeding 20 years and subparagraph (c)(3) of that section provides that the minimum term shall not be greater than one third of the maximum. Therefore the minimum term imposed is in excess of that permitted by the Unified Code of Corrections.

Defendant’s conviction is affirmed. The minimum term of 10 years imposed by the trial judge is vacated and the sentence is modified to impose a minimum term of 6 years, 8 months, the maximum term of 20 years is affirmed. The cause is remanded to the trial court with directions to issue an amended mittimus to reflect the foregoing sentence modification.

Conviction affirmed, sentence modified, cause remanded with directions.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Cole, Defendant-Appellant.
    (No. 12011;
    Fourth District
    May 24, 1973.
    Michael J. Costello, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield, (Tim Joseph Bonansinga, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from a judgment of the circuit court of Sangamon County committing him to the Illinois Security Hospital following a jury verdict finding him incompetent to stand trial on a two-count indictment charging attempted murder and aggravated assault by use of a deadly weapon. Defendant was arraigned on the indictment, refused to plead and on the court’s own motion a plea was entered for him. Occurrences during the arraignment caused the court to raise the issue of the defendant’s competency to stand trial. He was examined by two ) psychiatrists and thereafter a trial was had, psychiatric reports by agreement were read to the jury and a verdict of incompetency returned. The sole issue in the case is whether or not the State established the incompetency of the defendant by a preponderance of the evidence.

By agreement of parties, the psychiatric report of Dr. Baumann was read and the People rested. Without detailing Dr. Baum arm’s complete report, it is sufficient to state that he had examined the defendant some years before, that the defendant had been in Jacksonville State Hospital and also at Alton, and that on a previous occasion he had walked out of St. John’s Hospital and killed his mother-in-law. In conclusion, Dr. Baumann stated: “I think he is still psychotic, and I would not hesitate to call him a schizophrenic, chronic, undifferentiated. I would re-commit him. He wiH only cause more trouble. He is stiH incompetent and psychotic”. The defendant then produced the psychiatric report of Dr. Philip I. Woemer and it was likewise read to the jury. He stated “Diagnostically it is felt that Mr. Cole is suffering from a chronic schizophrenic condition. The prognosis of this condition is poor, and the patient wiH be permanently impaired. He has been known to be impulsive in the past. This may have been in response to some delusional system. It is felt that he is not competent to stand trial because he would not be able to participate adequately in his own defense because of his disorder”.

A hearing to determine the defendant’s competency to stand trial is a preliminary civil proceedings in which the accused’s competency is to be determined by a preponderance of the evidence. It is conducted separately and apart from the trial on the criminal charges and the test of competency is whether the defendant understands the nature of the charges against him and whether he can cooperate with counsel in conducting his defense in a rational manner. (People v. Rosochacki, 41 Ill.2d 483, 244 N.E.2d 136.) Under section 5 — 2—1 the new Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—2—1), where the question of competency is raised by the court or the People, the burden of proof is on the State to prove the defendant’s unfitness to stand trial. With the exception of clarifying editorial changes, this is a codification of the law existing prior to the adoption of the new Code. Applying these principles to the case at bar, it is readily apparent that its provisions have been complied with and the unfitness of the defendant has been established by a preponderance of the evidence.

Accordingly, in compliance with Supreme Court Rule 23 (Ill. Rev. Stat. 1971, ch. 110A, par. 23), the judgment of the trial court is affirmed.

Judgment affirmed.

CRAVEN, P. J., and TRAPP, J., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry C. Laird, Defendant-Appellant.
    (No. 72-354;
    Fifth District
    May 30, 1973.
    Hanagan, Dousman & Giamanco, of Mt Vernon, (Paul D. Giamanco, of counsel,) for appellant.

      Robert F. A. Stocke, State’s Attorney, of Louisville, for the People.
   PER CURIAM:

Defendant, Jerry C. Laird, was found guilty of unlawful possession of cannabis after a bench trial in the Circuit Court of Clay County. He was placed on probation for two and one-half years with the first six months to be served at the Illinois State Farm at Vandalia. On this direct appeal he contends that his Motion to Suppress Evidence was improperly denied and that the sentence is excessive.

Defendant was driving his Dodge truck van on the State highway and was stopped by an Illinois State Trooper for driving five miles an horn over the speed limit. After stopping the defendant, the trooper also noticed that there were no lights on the rear license plate of the van. The van was licensed as a recreational vehicle and the trooper inquired as to what was being hauled in the van. Defendant voluntarily opened the back of the van and displayed a homemade bed in the rear of the van. The trooper testified that at this time he detected the odor of cannabis or marijuana from the van. The evidence disclosed that a pipe which had been smoked was in the van and supposedly carried the odor. He then searched the defendant and a passenger for weapons and made a search of the van. Behind the driver’s seat was a white plastic bag. Upon feeling the contents he suspected marijuana, he then untied the bag and looked inside and concluded that the contents were marijuana. He then placed defendant under arrest for possession of marijuana.

The real question on the motion to suppress was whether the detection of the odor of marijuana emanating from the vehicle gave the arresting officer probable cause to search. We find that under the circumstances here present that it did. See People v. Erb, 128 Ill.App.2d 126.

This case illustrates the reason why an automobile may be searched under circumstances which would not justify a search of a home. When defendant was stopped for a speeding violation, the officer could detain him. However at that point he had no basis to hold the passenger. Had he gone with defendant to get a warrant, the passenger could have departed with the van, or the marijuana, or both.

Under the new Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005—6—3(d)), the six months term of imprisonment at the Illinois State Farm is no longer permitted. With it removed the sentence is not excessive.

Sentence modified and judgment affirmed.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harvey Dale Holland, Defendant-Appellant.
    (No. 72-17;
    Fifth District
    May 25, 1973.
    Robert E. Farrell, of Defender Project, of Mt. Vernon, (Edith L. James, of counsel,) for appellant.
    No brief filed for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tyrone Ashby, Defendant-Appellant.
    (No. 72-36;
    Fifth District
    May 29, 1973.

      Robert E. Farrell, of Defender Project, of Mt. Vernon, for appellant.
    Ronald A. Niemann, State’s Attorney, of Salem, for the People.
   PER CURIAM:

Defendant, Tyrone Ashby, pled guilty to the crime of theft over One Hundred Fifty Dollars in the Circuit Court of Marion County. Subsequently he was tried by the court on two counts of armed robbery and one count of aggravated battery and found guilty. By agreement, his applications for probation were consolidated. After a hearing, probation was denied and defendant was sentenced to a term of one to ten years on the theft charge and four to fourteen on the armed robbery charge with the sentences to run concurrently. Although found guilty of the aggravated battery charge he was not sentenced since the court found that this charge merged with one count of the offense of armed robbery. The court also held that he should not receive credit for the time previously spent in jail awaiting trial and sentence.

Defendant contends that it was error to deny him credit for time served while waiting trial and that the sentence imposed for armed robbery is excessive.

The error in failing to allow credit for time served while waiting trial is conceded. As regards the contention that the sentence for armed robbery- was excessive, the record shows that the defendant had several prior felony convictions. Also he committed the armed robberies while on bail awaiting trial on the theft charge. Defendant claims that since he seems to get involved in crime only when using alcohol, he is being sentenced for using alcohol. However he overlooks the fact that he was convicted, not of using alcohol, but of the serious crime of armed robbery. We find the sentence is not excessive.

Sentence modified to give credit for time served in jail while waiting trial and as modified affirmed.


author: Mr. JUSTICE CREBS

text:
    Watkins Products, Inc., Plaintiff-Appellant, v. Nedra L. Walter et al., Defendants-Appellees.
    (No. 72-156;
    Fifth District —
    May 29, 1973.

      Vuagniaux & Metzger, of Collinsville, (Frank R. Hudak, of counsel,) for appellant.
    Lueders, Robertson & Konzen, of Granite City, (Leo H. Konzen, of counsel,) for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This appeal comes on as the result of an action based upon a surety contract. The plaintiffs complaint sets forth a certain surety contract signed by defendant-appellee, Thelma Gonterman, and two co-defendants, Nedra Walter and John Gonterman, wherein the defendants agreed to act as surety for a credit purchase contract between plaintiff and the principal debtor, Robert Madden. The principal, Madden, defaulted under the terms of his contract and plaintiff thereupon filed suit against defendants. The defendants John E. Gonterman and Nedra L. Walter were nonsuited and plaintiff proceeded solely against defendant, Thelma Gonterman.

The defendant did not deny the existence of the surety contract nor was the principal indebtedness in dispute. Defendant did, however, assert by way of defense the fact that she was a gratuitous surety who was not treated by the creditor in fairness and good faith and that there was a material change in the contract, without her consent, all of which she claimed entitled her to be discharged of any obligation created under the said contract. After a bench trial, the court found the issues in favor of defendant and against plaintiff. A post trial motion was thereafter denied and plaintiff has appealed. On appeal plaintiff claims that a valid and subsisting contract existed unaffected by any defenses raised by defendant.

The facts in the case are largely uncontested. Plaintiff and the principal debtor, Robert Madden, entered into a contract on May 3, 1961, wherein plaintiff agreed to furnish its goods to the principal on credit. The contract also called for the principal to provide at his own cost a bond in the sum of $2,000.00 indemnifying plaintiff against loss. It was this contract for which defendant agreed to act as surety. The principal made an initial payment of $40.00 to plaintiff in order to obtain the corporate surety bond required. The bond was, however, never obtained, although plaintiff alleges that it turned the $40.00 over to a bonding company.

During the term of the contract, the principal’s indebtedness to plaintiff continued to grow. This increasing indebtedness began to worry plaintiff, and in the early part of 1962 a “control” was placed on credit shipments to the principal. Defendant was not notified of this concern nor the control which was placed on the account.

In September of 1962, more than a year after the contract was entered into, a second contract or agreement was presented to the principal, wherein the line of credit and surety requirement was increased from $2,000.00 to $5,000.00. This second agreement was apparently presented because the principal had exceeded his original line of credit and his account was significantly in arrears. The principal testified that he executed this second agreement and that one of the other defendants, Nedra Walter, signed that agreement as surety but that defendant refused to sign. Plaintiff denies accepting this second agreement, but does, however, admit accepting a second payment of $40.00 at about the same time which payment was to be for the second corporate surety bond. That bond, like the first one for which the principal paid in 1961, was apparently never obtained. There is no explanation for this failure to have the corporate surety bond. The agreement between principal and plaintiff was thereafter terminated in December of 1962 after which principal made some partial payments on the account. One or more of these payments were returned by plaintiff together with a demand for full payment. When full payment was not made, the plaintiff filed suit against the sureties. The sureties deny receiving any notice or demand until suit was filed.

There are two separate and distinct types of sureties, each of which is treated differently under the law. There is a surety for hire and a gratuitous surety, such as the defendant herein. A private, voluntary or gratuitous surety is a favorite of the law and the contract creating the suretyship is construed strictly in his favor. (Baker v. Peterson, 300 Ill. 526.) Such a surety is entitled to be dealt with in fairness and good faith (50 Am.Jur. 923, Suretyship, sec. 32.) and will be released when his risk is increased or he is deprived of the opportunity to protect himself by reason of the fact that the creditor refuses or fails to do some act required by the surety and which it is his duty to perform, or does some positive injurious act of interference. (50 Am.Jur. 933, sec. 41.) The issue, therefore, is whether plaintiff’s conduct was sufficient to warrant defendant’s release from the surety contract. We feel that it was and that defendant should have been released.

The plaintiff in this case wilfully failed or refused to purchase a corporate surety bond as required by the original agreement although two separate payments to purchase said bond, as required by plaintiff, were admittedly made by the principal to the plaintiff. There is absolutely no explanation why these bonds were not in existence. The defendant testified, as did all of the sureties, that she knew about the corporate bond and was made to believe that there was no problem with signing as a surety since she would be covered by the corporate bond. The collateral security represented by such a bond was not only for the payee’s benefit but for the sureties’ indemnity as well, and destruction of such collateral security by the payee without consent of the sureties will operate to release the sureties from liability (Lawrence v. Hammond, 208 Ill.App. 31), at least to the extent of the loss occasioned by such conduct on the part of the payee. (Hall v. Hoxsey, 84 Ill. 616: Phares v. Barbour, 49 Ill. 370.) Here the original corporate surety was to be in the sum of $2,000.00, and because the principal had exceeded his debt ceiling the second was to be increased to the sum of $5,000.00, which would have exceeded the amount of the claimed indebtedness. Clearly the failure to obtain the collateral security which principal paid for demonstrates a complete lack of good faith on plaintiff’s part and significantly increased the risk of defendant and deprived her of the protection she has a right to have. That conduct, constituting a callous disregard for the sureties and a complete lack of good faith, was and is sufficient in and of itself to warrant release of the surety. The whole course of plaintiff’s conduct demonstrates its indifference toward the rights of the sureties. Plaintiff failed to tell the sureties of the problems it was having with principal, failed to accept partial payments which would have reduced the sureties’ claimed indebtedness, failed to obtain the corporate surety bond and even apparently went so far as to solicit a second agreement and second contract of suretyship. It is not even clear that the agreement upon which this suit is based was not abandoned by plaintiff when, at plaintiff’s request, the principal executed the new agreement and a new surety agreement was executed by a surety other than defendant. Under these circumstances we find that the decision of the trial court was justified by the law as it pertains to the facts here presented. If the agreement was not abandoned, it is clear that plaintiff, by failing to exercise good faith in dealing with the surety and by allowing collateral security to be lost, significantly altered defendant’s undertaking and increased her risk, which conduct operated to release defendant from her obligation under the surety agreement. The decree of the Circuit Court of Madison County is affirmed.

Affirmed.

EBERSPACHER, P. J., and JONES, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert P. McCarty, Defendant-Appellant.
    (No. 72-353;
    Fifth District
    May 29, 1973.

      Hanagan, Dousman & Giamanco, of Mt. Vernon, (Paul Giamanco, of counsel,) for appellant.
    Robert F. A. Stocke, State’s Attorney, of Louisville, for the People.
   PER CURIAM:

Defendant, Robert P. McCarty was found guHty of unlawful possession of more than 2.5 but less than 10 grams of cannabis after a bench trial in the Circuit Court of Clay County.

Defendant contends on appeal that the court erred in denying his motion to suppress the evidence. We agree.

Defendant was walking in the vicinity of the Flora police station and near a van truck belonging to a person recently arrested for possession of marijuana. He was notified by the police and since they suspected that he had some connection with the arrested owner of the van, they called him over to the station to talk to him and search him. On searching they found a small clear plastic bag in his coat pocket which contained marijuana. There was nothing else in this pocket except this plastic bag. The police had no warrant and they had no reasonable grounds to think the defendant had committed any crime. Defendant was not carrying a weapon.

The State’s Attorney seeks to justify the search under the stop and frisk provisions of the statute. (Ill. Rev. Stat. 1971, ch. 38, secs. 107—14 and 108—1.01.) However, even if we assume that this is a proper case to frisk for weapons, the soft plastic bag inside the coat pocket was not a weapon, nor could it reasonably have been mistaken for a weapon. The officer upon determining by a pat down or feel of the coat, that the pocket did. not contain a weapon, had no right under the circumstances to remove anything from the pocket.

The trial judge indicated some doubt about the search but apparently thought he was bound by the incorrect ruling of another judge on a motion to suppress made before trial. He was not bound by the prior ruling. On the contrary he had a duty to grant defendant’s motion to suppress the evidence when it was shown to have been obtained by an illegal search.

Since the only evidence of defendant’s gmlt was obtained by an illegal search, the judgment cannot stand.

Judgment reversed and defendant discharged.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald M. Smith, Defendant-Appellant.
    (No. 72-291;
    Third District
    May 21, 1973.
    Franklin M. Wallace, of Rock Island, for appellant.

      James N. DeWulf, State’s Attorney, of Rock Island, (William Due-ringer, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Donald M. Smith appeals to this court from a finding of guilty in a non-jury trial for the offense of driving while under the influence of intoxicating liquor as a result of which defendant was sentenced to a fine of $150 plus costs, by the circuit court of Rock Island County. The defendant initially was charged with “driving while under the influence of liquor”. The attorneys for defendant, by letter, waived the defendant’s right to a jury trial. At the time the case was set for trial and prior to the commencement of trial, the State moved to amend its complaint to “driving while under the influence of intoxicating liquor”. (Emphasis added.) This amendment was allowed by the court over objection by defendant. Defendant then requested a continuance to the amended charge and further demanded a jury trial on the amended charge. This was done with considerable emphasis. The defense counsel in fact advised the court in the argument relating to objection to the amended charge that if the amendment was granted, defendant wished to have a jury trial on the charges as amended by the State. Defense counsel stated to the court that counsel felt that tire initial charge was improper and that the defendant wished to have a jury trial if the court would permit the amendment. The court allowed the amendment and overruled the request for a jury trial and the request of defendant to withdraw the waiver of jury.

The question, therefore, before the court on appeal on this issue is whether defendant understandingly waived a jury trial and, if so, whether the trial court committed reversible error in refusing defendant a jury trial, as a consequence of the action of the State in amending the charge against defendant. We agree with the prosecution that the case of People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 399, has overruled such cases as People v. McGraw, 115 Ill.App.2d 444, 253 N.E.2d 518, People v. Bromlow, 114 Ill.App.2d 458, 252 N.E.2d 685, and People v. Turner, 80 Ill.App.2d 146, 225 N.E.2d 65, insofar as the requirement of admonition by the court is concerned. For the reason that defendant is presumed to speak through his attorney and is bound by the attorney’s actions, however, we believe that the instant case presents an unusual situation. In the cause before us, the waiver of jury trial apparently was made for the purpose of taking advantage of what counsel for defendant believed was a technical failure in connection with the charge in omitting the word “intoxicating” before the word “liquor” in the charge. When the request was made to amend such charge by the prosecutor, the defense counsel made clear to the court that defendant desired a trial by jury in the event the charge was amended, and requested such jury trial when the amendment was aUowed, all prior to commencement of the trial. The court denied the request on the premise that the charge had not been altered sufficiently to surprise defendant. At issue, however, was whether defendant’s counsel felt that defendant was confronted with a purely legal question arising from a deficiency in the charge. The circumstance that defense counsel may have been wrong in such conclusion, should not in itself bar defendant from a timely assertion of a request for a trial by jury.

It is true that this request is addressed to the sound discretion of the trial court but it is likewise true that the trial court’s discretion should be exercised reasonably and that the present situation created an unusual set of facts which should raise a question in the mind of the trial court as to whether the waiver of jury, in view of the amendment allowed, was understandingly made by defendant. The record indicates that the waiver may not have been intended to be made with respect to the charge as amended, but solely to the charge as originally specified. Had the case proceeded upon the original charge and had defendant at such time requested a waiver of jury trial, it is obvious, under the precedent of People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 399, that the trial court would justifiably and properly deny such request to withdraw the waiver of jury. When, however, a situation exists such as is present in the instant case, and the amendment is initiated by the prosecutor and is allowed, the trial court, under such circumstances, we believe, should have allowed the request to withdraw the jury waiver.

It is not essential, at such time, to conclude that the charge would in any manner have been deficient as originally set forth. We recognize that in People v. Haney, 95 Ill.App.2d 1, 238 N.E.2d 110, the charge as originally filed would have been construed as sufficient to sustain a conviction. It may have been the theory of counsel that the Haney precedent should not be maintained. In any event, the defendant under the facts before us may not have understandingly waived trial by jury to the charge as amended. The circumstance that the defendant was under the impression that it did make such a significant difference, creates an apparent situation where defendant may not have understandingly waived a trial by jury to the charge as amended. If, however, the defendant had waited until after the bench trial had commenced, the trial court would then have properly denied a request to withdraw the jury waiver. Normally, a waiver by counsel of jury trial on behalf of a client should be binding on the client. The peculiar circumstances of the instant case constitute the sole reason for departure from the rule which would otherwise control.

While this cause will be reversed for failure of the trial court to permit the defendant to withdraw the waiver of jury trial in this cause for the reasons stated, we should observe that the other contention made by defendant that the record failed to prove defendant guilty beyond a reasonable doubt is not sustained by the record. The record discloses that two witnesses testified concerning the degree of intoxication of defendant which was corroborated in part by the testimony of defendant and the facts relating to the manner in which defendant was driving the wrong way on a one-way street and the inability to stop his automobile for over two minutes before the collision in the case. The officers who observed defendant had experience in observing intoxicated persons and their testimony would have been sufficient to sustain a conviction.

For the reasons stated, this cause will be reversed and remanded to the Circuit Court of Rock Island County with directions to allow the motion to withdraw the waiver of jury trial and for further proceedings in this cause.

Reversed and remanded with directions.

STOUDER and SCOTT, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Anna Janice Busby, Plaintiff-Appellant, v. Hallie Virgil Busby, Defendant-Appellee.
    (No. 72-299;
    Third District
    May 21, 1973.

      Manion and Doyle, of Hoopeston, (Paul T. Manion, of counsel,) for appellant.
    Burt Greaves, of Champaign, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The plaintiff, Anna Janice Busby, brought an action in the Circuit Court of Iroquois County for divorce on the ground of mental cruelty. The trial judge rendered judgment for divorce in favor of plaintiff and awarded her periodic alimony and certain property. Plaintiff has appealed on the issue of the adequacy of the alimony and the refusal of the trial court to receive evidence relating to the nature of the defendant’s misconduct in determining the amount of alimony.

Plaintiff in her original complaint had charged adultery but amended to change the grounds to mental cruelty. A hearing was held on August 25, 1972 and on that date the court decreed a divorce in favor of plaintiff on the ground of mental cruelty and continued all questions relating to child support, alimony, and the division of the property until Sept. 29, 1972.

At the hearing held on Sept. 29, 1972 plaintiff attempted to once again introduce evidence that defendant had committed adultery. Defendant objected and was sustained. Plaintiff contends that such evidence should have been admitted as weighing on the question of an appropriate alimony award. She cites Byerly v. Byerly, 363 Ill. 517, 525 as authority that a party has an unequivocal right to present such evidence. In Byerly the court stated, “There is no hard and fast rule for the fixing of alimony. Matters which are usually considered by the court in determining alimony are the ages of the parties, their condition of health, the property and income of the husband, separate property and income, if any, of the wife, the station in life of the parties as they have heretofore lived, and whether or not there are any children dependent upon either for support, and also the nature of the misconduct of the husband. It toas never intended that the allowance of alimony shall be used as a means of visiting punitive damages upon the husband in favor of the wife for the husband’s misconduct * * (Emphasis supplied).

In Reavis v. Reavis, 2 Ill. 242 the Illinois Supreme Court held that where a divorce was granted at one term of court it was error on the trial of the amount of alimony at the next term to permit the reintroduction of evidence of fault given by the plaintiff on the trial of the question of divorce. The court held that the testimony relating to the grounds of divorce was irrelevant to the inquiry on the question of allowance of alimony. The court said, “What would be a proper allowance * * * was surely the only question in a case like the present. # * *” We believe that the testimony sought to be adduced was entirely irrelevant and that the ruling of the trial court was proper in the instant case.

The plaintiff further contends:

1. that the amount awarded was inadequate in amount as a matter of law,

2. that defendant should be required to extend life insurance coverage for the benefit of the plaintiff and the minor children,

3. that defendant should make provision for plaintiff’s retirement.

At the hearing plaintiff testified that her total monthly needs, including child support for 2 minor children of the parties was $700. She had been working for several weeks but was unable to cope with the 50 hours per week demanded by her employer and had quit. She expected to secure other employment which would produce $90 to $95 per week gross. The defendant, an insurance salesman, draws $1000 per month from his employer. The 1971 income tax return was introduced and showed that defendant’s gross income was $17,500 salary and $480 director’s fees with outside salesman’s travel expenses of $1745 and $478 for other business expenses leaving about $15,800 before state and federal income taxes. Defendant said that other than higher income taxes this would remain about the same in 1972. A financial report was introduced which showed that excluding the mortgage on the home awarded to plaintiff, defendant had a current indebtedness of $62,000 (plus $1100 attorney fees awarded to plaintiff by the court). Defendant was paying $500 a month on just 2 of his loans. His current expenses were about $500 a month.

The court awarded plaintiff, who had no special equities:

It should be obvious that a job paying plaintiff $90 to $95 gross per week would make up the deficit.

Plaintiff has cited Turns v. Turns, 96 Ill.App.2d 347, 351 where the court stated, “All the parties involved must have food, shelter, and other necessary Uving expenses. Other expenses [referring to debts] must yield to these items”. We have no quarrel with that statement but would point out that “all the parties” includes the defendant as well as plaintiff, and plaintiffs basic needs have been met in the instant case.

Defendant is paying $300 per month on an instaUment note which is secured by stock in the agency which employs him. He is also paying $200 per month on an unsecured indebtedness to another bank. The argument that these debts should yield to higher alimony does not impress us. The indebtedness of the husband must also be considered. (Young v. Young, 323 Ill. 608, 616; Hudspeth v. Hudspeth, 122 Ill.App.2d 341.) An award of alimony should not be made so high as to cause financial difficulti.es and personal embarrassment on the part of the husband which may impair his earning capacity, for even a husband with a comparatively large income who has wronged his former wife must live up to the standards required by his job and enjoy reasonable peace of mind. Otherwise, he is not likely to earn the income and the wife herself will be the principal sufferer. Annotation: 1 A.L.R. 3d 38, Sec. 10(c).

Broadly speaking, the principal factors or circumstances that govern the amount to be allowed as permanent alimony are the necessities of the wife and the financial ability of the husband to meet them. (Everett v. Everett, 25 Ill.2d 342.) They have been met in the instant case. The trial court, in its order, directed that defendant maintain $20,000 in life insurance coverage, payable on death to plaintiff, for a period of 5 years or until the youngest child (then age 13) ceases her formal education, whichever is later.

Defendant is the beneficiary of a retirement plan. If defendant terminated his employment voluntarily the plan would presently be worth $10,000. If he continues his employment and contributions (all are by his employer) are paid he will receive about $240 a month when age 65 or if sooner disabled. In case of death before 65 the sum of $36,000 would be payable to his estate. This plan was included among the assets awarded to defendant with a present cash value of $10,000 assigned to it.

Plaintiff argues that it is improper to permit defendant to have all the benefit of the retirement plan to her complete exclusion and it is unreasonable to exclude her from it on her retirement in about 15 years. We can not agree. The present cash value of the plan was included among the assets of the parties and was awarded to defendant as a part of the property division. Further, alimony being essentially an allowance for the support of tire beneficiary during the joint lives of the ex-wife and her divorced husband, Cross v. Cross, 5 Ill.2d 456, tire duty to pay (absent her remarriage) continues after her retirement if he is still alive. Provisions whereby the aged divorced wife of a social security beneficiary may obtain a wife’s insurance benefit were added to tire law in 1965, if the marriage, as here, was of over twenty year’s duration. We are aware of and plaintiff has cited no case (absent agreement of the parties) requiring a defendant to provide for an alimony recipient’s retirement. In Yoselle v. Yoselle, 54 Ill.App.2d 354, life insurance coverage (extended to the children) had been agreed upon by the parties. In Mogged v. Mogged, 5 Ill.App.3d 581, 284 N.E.2d 663, the award was in the nature of a lump sum in lieu of permanent alimony.

Defendant has $20,000 in level term insurance and $40,000 in decreasing term insurance. The children are the beneficiaries. His employer has a $50,000 policy on defendant which was secured pursuant to an earlier agreement that in event of defendant’s death the employer use the proceeds to buy defendant’s shares in the agency. This latter policy belonging to the employer is certainly of no concern to plaintiff.

Generally, life insurance is merely one of several assets of the parties, and an award of life insurance to the husband is ordinarily proper where other assets are awarded to the wife, particularly where the husband has the power to borrow on the policies, change beneficiaries, and surrender the insurance or permit it to elapse. 24 Am. Jur.2d, Divorce and Separation, sec. 932; Annotation: 145 A.L.R. 523, 524; 27B C.J.S. Divorce sec. 292(2).

Also, see “When a Divorce Decree tinkers with a life insurance policy”, 48 Ill. Bar Journal 282.

The trial court in its decree awarded alimony in the amount of $50 per week for the first year, reduced to $40 per week for the second year and $30 per week thereafter until further order of court. The trial court has continuing jurisdiction of the cause and if circumstances change it is within its power to adjust the alimony in accordance with changed conditions. We, therefore, believe that under the facts of this case the reductions should not have been ordered, and that the judgment should be modified to provide for $50 per week until further order of the court. In all other respects the judgment of the Circuit Court is affirmed.

Affirmed except as modified.

ALLOY, P. J., and STOUDER, J„ concur.

       Defendant had previously borrowed the entire cash value on the policy, premiums are deducted from his salary.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    Harold W. Lindsey, Plaintiff, v. Dean Evans Company, Defendant—(Dean Evans Company, Third-Party Plaintiff-Appellee, v. Harlan E. Moore & Co., Third-Party Defendant-Appellant.)
    (No. 11737;
    Fourth District
    May 24, 1973.

      Phillips, Phebus, Tummelson & Bryan, of Urbana, (Joseph W. Phebus, of counsel,) for appellant.
    Busch, Harrington & Porter, of Champaign, and Schaffenegger & Watson, of Chicago, (Jack L. Watson, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal by third-party defendant Harlan E. Moore & Company, herein called Moore, from a judgment in favor of third-party plaintiff, Dean Evans Company, herein called Evans, against Moore, for $22,000 — being the amount of a judgment in favor of Harold Lindsey against Evans — and from the denial by the trial court of Moore’s post-trial motion.

The original action was brought by Harold Lindsey, an employee of Moore, for personal injuries he sustained in a fall from a scaffold, based upon violation of the Illinois Structural Work Act. Ill. Rev. Stat., ch. 48, pars. 60, 69.

Evans was awarded a contract to do certain construction work for the United States Air Force at Chanute Air Base in Champaign County. Evans subcontracted with Moore to install certain floors and ceiling tile in a dining hall at the Base. Ray Bishop, an employee of Moore, asked Merle Stevens, Evans’ superintendent on the job, to borrow a scaffold from Evans’ storage yard, which consisted of four end sections, four cross sections, and four wheels. Bishop and other employees of Moore assembled this scaffold in a two-tier arrangement, placing planks on it, and apparently nailing some cleats on the underneath side of the planks. The scaffolding had six inch diameter wheels, swiveled similar to bed wheels. The scaffold could be moved by the workmen getting down and pushing, or by pushing on the planks with their feet while they pulled or pushed on the overhead grid with their hands.

Bishop used the scaffold. On one occasion one of the wheels stuck, but worked satisfactorily for him after he kicked it free. After Bishop finished with the scaffold, Lindsey used it. On the following morning while Lindsey was using the scaffold, he pushed against the planks with his legs and the overhead grid with his arms; the scaffolding suddenly stopped, two of the planks which did not have any cleats slipped off the scaffold and Lindsey fell to the floor and was injured. Stevens, Evans’ superintendent, had observed Lindsey on the scaffold prior to the fall, but did not tell him to put cleats on the board or to quit moving the scaffold from the top.

Lindsey filed suit for his personal injuries against Evans on February 11, 1963. Evans filed a third-party complaint against Moore on March 8, 1963. The third-party complaint was dismissed by the court on July 8, 1963, on third-party defendant’s motion. On December 9, 1966, Evans filed a motion for leave to file an amended third-party complaint, which was granted on January 4, 1967 over objection. Moore’s subsequent motion to dismiss the amended third-party complaint was denied.

Motion by plaintiff Lindsey was made and allowed to sever the principal case from the third-party trial. Evans objected to the severance and there is no objection by Moore in the record. On March 8, 1971, in the principal case a judgment was entered in favor of Lindsey against Evans in the sum of $22,000 and costs. Thereafter, on June 23, 1971, the jury trial commenced in the third-party proceeding. Verdict and judgment was entered in the third-party proceeding in favor of third-party plaintiff Evans and against third-party defendant Moore in the sum of $22,000. Third-party defendant Moore’s post-trial motion was denied. Moore filed this appeal.

Third-party defendant contends as error that: (1) the trial court had no jurisdiction to grant the filing of the amended third-party complaint; (2) the amended third-party complaint failed to state a cause of action; (3) the denial of third-party defendant’s motion for directed verdict at the close of third-party plaintiff’s case and again at the close of all the evidence; (4) allowing Bishop, Moore’s foreman, to give certain testimony as rebuttal testimony for third-party plaintiff; and (5) giving jury instructions which used the term “wrong-doing” as opposed to “negligence”; failing to define “wrong-doing”; and giving third-party plaintiff’s Instruction No. 16 specifying $22,000 in damages.

The contention is that the trial court was without jurisdiction to grant the filing of the amended third-party complaint three years after the trial court entered its order of dismissal of the third-party complaint. The contention is that such order was a final order and relief should have been sought within thirty days after the order or thereafter pursuant to section 72 of the Civil Practice Act.

This order is governed by Supreme Court Rule 304(a) which became effective on January 1, 1967. It replaced subsection (2) of section 50 of the Illinois Civil Practice Act. Rule 304(a) provides as follows:

“(a) Judgments As To Fewer Than All Parties or Claims — Necessity for Special Finding. If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.”

Until the entry of a final judgment as to all parties, the order of the trial court could be revised. The order was not made a final appealable one under Rule 304. The trial court thus retained jurisdiction until a final judgment had been entered and could permit amendment. No distinction appears proper between “orders” and “judgments” in Rule 304. The former section 50(2) of the Civil Practice Act and Supreme Court Rule 304 deal with both orders and judgments. The Committee Comments to this rule in Smith-Hurd Annotated Statutes states “this rule supplants paragraph (2) of Section 50 of the Civil Practice Act without change of substance but with some amplification.”

The amended third-party complaint does not fail to state a cause of action because it contains no allegation of due care on the part of Lindsey or an allegation of either negligence or wilful violation of the Structural Work Act by Moore.

Contributory negligence and assumption of risk are not defenses to an action brought under the Structural Work Act. This act was adopted to permit recovery by persons employed in dangerous and extra-hazardous occupations regardless of the manner of doing their work. (Fetterman v. Production Steel Co. of Illinois, 4 Ill.App.2d 403, 124 N.E.2d 637; Brackett v. Osborne, 44 Ill.App.2d 441, 195 N.E.2d 8.) The Structural Work Act departs from a fault standard. Contributory negligence or assumption of the risk are not defenses and, indeed, it has been questioned whether or not the Structural Work Act can even be classified as a tort statute. (Krause, Statutory Torts in Illinois, 1967 U. Ill. L.F. 1.) In Miller v. DeWitt, 37 Ill.2d 273, the supreme court noted that the liability under the Structural Work Act does not rest upon negligence and then quoted with approval from a cited appellate court opinion that “ # there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff. Who is the more culpable, a party who supervises and co-ordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? Both are in charge of the work, to be sure, but of different phases of the work. Neither can escape liability to the [injured] plaintiff — thus the purpose of the Act is accomplished — but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about plaintiff’s injury.’ ”

The third-party complaint contains sufficient allegations of fact to establish a basis for indemnity under the now well-recognized active passive theories for indemnification. See Parsons v. Kuhne-Simmons Co., Inc., 76 Ill.App.2d 121, 221 N.E.2d 168.

We find no merit in the contention of Moore that its motion of directed verdict should have been granted at the close of plaintiff’s case. Such contention is made under the often cited rule announced in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. In this case, the evidence was clearly sufficient to present a jury question under the active passive theory for indemnity. (Gadd v. John Hancock Mut. Life Ins. Co., 5 Ill.App.3d 152, 275 N.E.2d 285.) In this case, without a detailed recitation of the evidence, the record indicates that the defendant’s employees erected the scaffold and put the boards on it. The issue of whether cleats were or were not placed on the board, or whether boards that had once been cleated were replaced with boards without cleats so as to keep the board from faUing, was a jury question, and if as here it was resolved by the jury adverse to the defendant’s contention, such constitutes active negligence within the concept of Miller.

The evidence in chief for the third-party plaintiff Evans was to the effect that Moore, through its employees had erected the scaffold and put the boards on it. Moore caUed its foreman, Bishop, to establish that he had assembled the scaffold and had the cleats on the boards. In rebuttal, Evans called Bishop who testified that Moore’s employee, the plaintiff Lindsey, had changed the boards on the scaffolding and in so doing, removed cleated boards and put on boards without cleats. The defendant objected to this testimony as improper rebuttal. The trial court overruled the objection. The question of whether or not such rebuttal testimony is permissible is a matter within the discretion of the trial court. (Loftus v. Loftus, 134 Ill.App. 360.) We find no abuse of discretion in the ruling here complained of.

Finally, Moore asserts error in giving certain instructions employing the term “wrong-doing” and in the failure to define that term. We wiU not consider this issue since Moore used the same terminology in its own tendered and given Instruction No. 10, as well as in two other tendered but refused instructions. Other issues urged by Moore are not preserved for review since such were not included in the post-trial motion and they are deemed waived.

We find no error in this proceeding. The judgment of the circuit court of Champaign County should be, and the same is, affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur.