text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD L. POWELL, Defendant-Appellee.
    Second District
    No. 81-778
    Opinion filed June 30, 1982.
    Tyrone C. Fahner, Attorney General, of Chicago (Ronald Bell, Assistant Attorney General, of counsel), for the People.
    Callum, Anderson and Deitsch, of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Richard L. Powell received supervision and was assessed a fine of $750 with costs upon entering a guilty plea to driving a vehicle while under the influence of intoxicating liquor. (Ill. Rev. Stat. 1979, ch. 9512, par. 11 — 501.) In a subsequent implied consent hearing the trial court granted defendant’s motion for a directed finding of no probable cause and subsequently denied the State’s motion for a new hearing. The State appeals, contending that the court erred in rejecting the plea of guilty to the DWI charge as a judicial admission in the implied consent proceeding, erred in various trial rulings, and erred in directing a verdict for the defendant as against the manifest weight of the evidence.

I

Defendant’s initial contention that he did not admit that he drove while intoxicated but stipulated that the State would present certain evidence is unsupported. The record clearly shows that defendant agreed to change his plea to guilty rather than to have a stipulated bench trial, and that he was admonished as to the consequences of the guilty plea. A guilty plea to a traffic offense is a judicial admission which, although not conclusive, is proper evidence against him in a civil proceeding arising from the same incident. (Hartigan v. Robertson (1980), 87 Ill. App. 3d 732, 738.) Here, the guilty plea admits that the defendant was driving a motor vehicle on a public highway within the State while under the influence of intoxicating liquor. (People v. Morrissey (1975), 30 Ill. App. 3d 566, 568.) The admission is relevant to the requirement of proof in an implied consent hearing that the arresting officer had reasonable cause to believe that the defendant was driving the motor vehicle within the State while under the influence of intoxicating liquor. Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1(d).

The question remains whether the guilty plea may be used as an admission when, as here, the underlying DWI charge has been finally dismissed without adjudication of guilt after the defendant has received supervision. We conclude that it may be so used.

It has been held that an admission in a pleading in a former action which has been dismissed is admissible against a party. (Bevelheimer v. Gierach (1975), 33 Ill. App. 3d 988, 995-96.) The fact that the DWI charge was finally dismissed does not predetermine, in the implied consent hearing, whether the arresting officer had reasonable grounds to believe that the defendant was driving under the influence of intoxicating liquor. (People v. Cassidy (1978), 67 Ill. App. 3d 43, 47.) The supervision statute does not require a different resolution. It provides, generally, that upon the successful conclusion of a supervisory order, it shall be deemed without adjudication of guilt and shall not be termed a conviction for purpose of disqualification or disabilities imposed by law upon conviction of a crime. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(f).) This does not prevent use of an evidentiary admission to all of the elements of the DWI complaint in the separate hearing required when a party has refused to take a breathalyzer test.

The introduction of the plea differs in theory from introduction of the judgment entered thereon. The judgment of conviction constitutes a hearsay exception when offered to prove that any facts essential to judgment have been previously found to exist; whereas the plea is offered to prove only that the offender admitted facts constituting guilt and not that such facts were adjudicated to exist. (See E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 802.4, at 410 (3d ed. 1979).) The plea would not estop the driver from offering testimony, if any, explaining the plea, which the trier of fact may consider along with all other evidence in the civil case. Barnes v. Croston (1969), 108 Ill. App. 2d 182, 184-85; Lukasik v. Hajdas (1968), 104 Ill. App. 2d 1, 4 n.2.

II

The trial court also ruled that defendant was improperly admonished because he was not told that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the breathalyzer test; but was merely told that it “could be suspended,” “would very possibly” and “could very possibly” be suspended. (Emphasis added.) The arresting officer testified that he read the 9-point form provided in the statute to defendant. (Ill. Rev. Stat. 1979, ch. 95½, par. 11 — 501.1(a)(2), (d).) We follow People v. Malloy (1980), 83 Ill. App. 3d 344, 347, which held that as a matter of statutory construction the word “may” in subsection (a), and the word “would” in subsection (d) are substantially equivalent and an admonishment in either term complies with the statute.

III

We further conclude that the trial court’s finding of no probable cause on the issue of implied consent was against the manifest weight of the evidence. The plea of guilty, which the trial court rejected in his consideration of the case, in the view we have expressed was an evidentiary admission that defendant was driving a motor vehicle within the State while intoxicated, as bearing on the issue of whether the officers had reasonable cause to arrest for DWI. There was also testimony by the arresting officer that he observed defendant’s vehicle weaving from lane to lane and driving off the roadway onto the shoulder numerous times at a very slow rate of speed on a well-lighted dry road. After stopping the car he observed that defendant had difficulty exiting, he had to brace himself against the vehicle, he produced his wallet and his license with difficulty, his clothes were “slightly mussed,” he walked with a wobbly gait, his face was red and flushed, he failed the heel-to-toe field test; and detected a very strong smell of alcohol. Moreover, this testimony was substantially unrebutted and was corroborated by an assisting officer. There was some impeachment on several matters raised in the alcoholic influence report form as to defendant’s speech and the result of the finger-to-nose field test; one of the officers testified that he heard defendant say when he used the phone that he had been drinking since 3 p.m., while another said that he had been working since 3 p.m. But the major testimony of the officers was substantially unimpeached. Probable cause means something less than the evidence which would result in a conviction. (People v. Peak (1963), 29 Ill. 2d 343, 347.) The trier of the facts in reaching that issue cannot disregard uncontradicted and unimpeached evidence. (Urban v. Industrial Com. (1966), 34 Ill. 2d 159, 163.) We conclude that the court erred in directing a finding for defendant.

IV

Since we are remanding for a new trial we will briefly note the State’s argument that the trial court erred in striking as irrelevant the testimony of Walter Filipowicz, offered to corroborate the testimony of the arresting officer. While there was some discrepancy between the time Filipowicz referred to and the testimony of the officers as to their arrival time, this does not appear so remote as to involve unrelated incidents, and therefore appears to be relevant. While much of his testimony was merely cumulative, there was additional testimony about the car striking a guard rail and then veering into a ditch along the opposite side of the road. While the question of the relevance of evidence is largely within the court’s discretion (Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1018), on this record, we conclude that the testimony should not have been stricken.

The case is reversed and the cause remanded for further proceedings consistent with this order.

Reversed and remanded.

NASH and HOPF, JJ„ concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WHITE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHANIEL HOPKINS, Defendant-Appellant.
    First District (3rd Division)
    No. 80-1546
    Opinion filed June 2, 1982.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Richard F. Burke, and Theodore F. Burtzos, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

Defendant, Nathaniel Hopkins, was charged by a seven-count information with the offenses of rape, armed violence based upon rape, two counts of deviate sexual assault, aggravated kidnapping, unlawful restraint, and armed violence based upon unlawful restraint. Following a jury trial, he was found guilty of all seven counts, and judgment was entered on the verdicts. Defendant was sentenced to concurrent terms of imprisonment of 15 years for rape, 15 years for armed violence based upon rape, 15 years for each count of deviate sexual assault, and 10 years for aggravated kidnapping. No sentence was imposed for unlawful restraint or armed violence based upon unlawful restraint. On appeal, defendant contends that various prosecutorial errors deprived him of a fair trial, and in the alternative, that certain convictions must be vacated as part of other offenses and that he is entitled to a corrected mittimus to reflect the sentence for aggravated kidnapping announced by the trial judge.

There is no dispute that defendant had sexual relations with the complainant on the night in question. The issues to be decided by the jury were whether the complainant consented to the activities, and, if not, how many offenses occurred.

The complainant, a 19-year-old student at the time of trial, testified that at 10:30 or 11 p.m. on January 13,1979, she started to walk home from a friend’s house. The weather conditions were blizzard-like, and she lived about 10 blocks from her friend’s house. As she was walking, she observed a dark brown van, and as the van passed her, the driver waved to her and stopped in front of her. She was not hitchhiking, but she did approach and open the passenger door of the van. Defendant was the driver of the van, and she told him that she lived only a few blocks away. He offered her a ride, which she accepted. When they arrived at an intersection located one block from complainant’s home, she told him she wanted to be let out of the van because the street was not plowed. However, defendant proceeded one-half block down the street. Then defendant told her that the van was stuck in the snow and that he was going to get a shovel from the back of the van. Defendant went into the back of the van, but five or 10 seconds later, he returned with a knife, which complainant described as 20 inches long with a long blade. He pointed the knife at her throat and told her to get into the back of the van. Then he pulled her by the arm into the back of the van and ordered her to lie face down on the floor of the van. When she did so, he tied her wrists tightly behind her back with her scarf. He also tied her ankles together, and tied a piece of cloth around her mouth and head. Then defendant got back into the driver’s seat and drove for about 15 or 20 minutes.

Defendant then turned off the engine and entered the back of the van. He told her that she had better do as she was told, and subsequently untied her wrists, ankles, and the gag in her mouth. At this time she did not know where the knife was. Then he ordered her to remove her pants and undergarments, which she did. He proceeded to have intercourse with her, despite her protests that she did not want to do it and that she was only 17 years old, when, in fact, she was 18 at the time. Her attempts to push him away were unsuccessful. Afterward, defendant told her to sit on a bunk in the back of the van. She covered herself with a blanket, and she and defendant had a conversation for 15 or 20 minutes. During this conversation, defendant was drinking beer and wine. Although defendant offered her some wine, she merely held the bottle to her lips and drank little, if any, of it.

Toward the end of this conversation, complainant observed the knife lying on the floor beneath the passenger seat of the van. After the conversation, defendant told the complainant to remove the remainder of her clothing and to lie on the bunk. Defendant then performed cunnilingus on her despite her attempts to push him away. When he finished, he proceeded to have intercourse with her a second time despite her protests.

After this second act of intercourse, defendant and complainant dressed and returned to the driver’s and passenger’s seats in the front of the van. They conversed, and when defendant pressed her for her telephone number, she wrote on a piece of paper her name and the number of a Dunkin Donuts store where she worked.

Then, defendant told her that he wanted to have intercourse a third time. He pulled her out of her seat into the back of the van and ordered her to disrobe, which she did. He then proceeded to perform cunnilingus on her a second time over her protests, and when this was completed, he forced her to perform fellatio on him. After this, defendant had intercourse with complainant a third time despite her protests that she did not want to do it and her attempts to push him away. Subsequently, defendant permitted complainant to dress, which she did. She then took the knife from the floor and ran out the passenger’s side door of the van.

Complainant ran to the nearest busy street, where she observed a snow plow driving toward her. She informed the driver of the snow plow that she had been raped, and he made a call on a radio. She then entered the vehicle with the driver and another man. They drove to the street where the van was, and as the van drove toward them, it collided with the plow. She saw defendant when the police took him from the van. Afterwards, complainant was taken to the Rosemont police station and to the emergency room of Resurrection Hospital.

There is no need to discuss the other evidence presented at trial in detail. Complainant’s testimony as to her escape from the van and the collision was corroborated by Anthony Fontana, who was employed by the Village of Rosemont and was plowing snow in a jeep with one Vito Corriero on the night in question. He testified in part that at approximately 2:30 a.m., they stopped their jeep for a girl who said she had been raped and who was crying and shivering. The girl showed them the knife which she claimed she had taken from the van. He also testified that about 30 seconds after the collision, the police arrived and pulled defendant out of the van. Officer George Albergo of the Rosemont police department testified that at 2:30 a.m. on January 14, 1979, he responded to a communication received over police radio. Upon arriving at the scene, he apprehended a black man whom he identified as the defendant and placed him under arrest. He also recovered the knife from a snowbank. Laura Schultz, a registered nurse at Resurrection Hospital, testified that she was working at approximately 3:55 a.m. on January 14,1979, when the police arrived with the complainant, who was crying. She and a doctor examined the complainant. Schultz observed red, raw areas on the insides of both of the complainant’s wrists and a small cut on her left arm. Officer Lee Mayer of the Rosemont police department testified to a statement made by defendant to him on January 14, 1979, in which defendant stated, in part, that complainant had agreed to have sex with him. The State and defendant stipulated that vaginal specimens taken from complainant showed the presence of semen containing spermatozoa; that there was blood on the complainant’s panties; that hair fragments of negroid origin were removed from the panties and scarf; and that defendant was 25 years old at the time of trial.

The only defense witness was defendant. Although there are discrepancies between his testimony and that of complainant, we need not summarize his description of the events in question, except to state that according to his testimony, the sexual relations he had with the complainant were consensual.

I

Defendant’s first argument is that various prosecutorial errors deprived him of a fair trial. The first alleged error is that the prosecution improperly cross-examined defendant as to the veracity of two prosecution witnesses, Officer Mayer and Officer Albergo. Specifically, defendant was asked if the officers were “wrong” or “incorrect” as to certain portions of their testimonies.

Illinois case law provides that “it is improper to attempt to force a defendant to judge the veracity of a witness against him since that represents an invasion of the province of the jury.” (People v. Puente (1981), 98 Ill. App. 3d 936, 946, 424 N.E.2d 775; People v. Hastings (1979), 72 Ill. App. 3d 816, 823, 390 N.E.2d 1273; People v. Hicks (1971), 133 Ill. App. 2d 424, 434, 273 N.E.2d 450.) The cross-examination complained of clearly violated this principle. The State responds that defendant waived this issue by failing to raise it in his written motion for a new trial. (See People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.) However, even assuming that this issue had not been waived, we conclude that the error committed did not contribute to defendant’s conviction and was, therefore, harmless. Significantly, neither witness who was the subject of this questioning testified to the critical issue of consent or gave testimony relevant to the question of how many offenses were committed. While we do not condone this type of questioning, we cannot conclude that this error warrants the granting of a new trial in this case. People v. Puente (1981), 98 Ill. App. 3d 936, 947.

Secondly, defendant argues that it was improper for the State, in the presence of the jury, to object to defendant’s handling the knife allegedly utilized to commit the offense, while he was testifying as a witness. The record shows that defense counsel asked defendant to identify the knife, which had been marked as an exhibit of the State. At this point, the prosecution objected to defendant holding the exhibit, and the court instructed defense counsel to hold the exhibit and show it to him, but not to hand it to him. Defendant then identified the knife as belonging to him. Relying on People v. Collins (1980), 85 Ill. App. 3d 1056, 407 N.E.2d 871, defendant contends that this objection stripped him of the presumption of innocence by making it appear to the jury that defendant was a dangerous man.

It cannot be doubted that a trial court, in the exercise of its duty to ensure orderly proceedings, may take reasonable safety precautions. (People v. Collins (1980), 85 Ill. App. 3d 1056, 1059; see People v. Boose (1977), 66 Ill. 2d 261, 266, 362 N.E.2d 303.) But the trial court may provide for such measures only when and to the extent justified by the danger of a significant interference with the orderly progress of the trial, and a hearing should be had outside the presence of the jury to determine the need for and propriety of any special treatment to be given to a defendant. People v. Collins (1980), 85 Ill. App. 3d 1056, 1059-60; People v. Boose (1977), 66 Ill. 2d 261, 266.

In Collins, the trial court, after objection by the prosecutor, forbade the defendant, who was conducting his own defense, to handle in court a shotgun that had been introduced as an exhibit. On appeal, this court held that such order of the trial court was an abuse of discretion because there had been no hearing outside the presence of the jury to demonstrate the necessity of the special treatment in that case. Collins is distinguishable in that a knife poses a greater danger in the courtroom than an unloaded shotgun. The Collins court specifically noted that a shotgun, so long as it is unloaded, is no more dangerous than any piece of furniture that could be used as a club, and emphasized thát there was no showing of any danger to order or safety in that case. (People v. Collins (1980), 85 Ill. App. 3d 1056,1059-60.) Such simple precautionary measures cannot be taken with a 20-inch knife. Furthermore, the defendant in Collins was conducting his own defense, unlike defendant here, and the court in Collins emphasized that it was the duty and right of trial counsel to examine a shotgun introduced as an exhibit. Here, no restrictions were placed on defense counsel with respect to the knife.

We believe that it would have been better if the State had made its objection and a hearing had been held outside the presence of the jury. However, we also note that this alleged error was an isolated incident in that it was never referred to elsewhere in the trial; that defense counsel did not object at the time, thereby emphasizing the prohibition to the jury; and that defendant has not shown that he was impeded in presenting his case to the jury by the State’s objection. Under these circumstances, we must conclude that any error that occurred was harmless beyond a reasonable doubt.

Thirdly, defendant complains that the following comment made by the prosecution in closing argument was improper because it found no support in the evidence:

“The defendant testified that he lived at that address on 55th Street, mother, brothers and sisters. He says he was married but that his wife didn’t live at that address with him at that time. I submit to you, ladies and gentlemen, that very possibly Nathaniel Hopkins not living with his wife had not had sex for a while. Nathaniel Hopkins went to work not out of a devotion for duty so early, but he went—
[Defense counsel]: I’m going to object to this.
THE COURT: State your objection.
[Defense counsel]: Well, my objection is that it is not supported by the evidence.
THE COURT: Objection overruled.
[Prosecutor]: He did not go to work out of devotion of duty. He left for work early because he was going to get sex any way he could e e

Defendant’s testimony indicated that he lived on that street with his mother, sister and brother and that he was not cohabiting with his wife at the time of the offense.

“Arguments and statements based on the facts appearing in the proof or on legitimate inferences deducible therefrom do not transcend the bounds of legitimate argument.” (People v. Halteman (1956), 10 Ill. 2d 74, 83, 139 N.E.2d 286; People v. Puente (1981), 98 Ill. App. 3d 936, 947, 424 N.E.2d 775.) We feel that the comment that defendant very possibly had not had sex for awhile was a fair inference to be drawn from defendant’s testimony that he did not cohabit with his wife at the time of the offense. Further, we believe that the comment that defendant was going to get sex any way he could was a fair inference deducible from complainant’s testimony. Even assuming that these comments were improper, it is well settled that improper remarks during closing argument do not constitute reversible error unless they result in substantial prejudice to the accused. (People v. Nilsson (1970), 44 Ill. 2d 244, 248, 255 N.E.2d 432, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881; see People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200.) We are of the opinion that these comments could not have been a material factor in defendant’s conviction and therefore cannot constitute reversible error.

Fourthly, defendant contends that the following comment by the prosecution in rebuttal closing argument was improper because it had the effect of minimizing the State’s burden of proof at trial:

“You just heard [defense counsel] ° * * say that the State has the burden of proof in this case and, of course, that is true. It is our burden and it is a burden which we gladly accept. Of course, it is not an impossible burden, it is a burden that everyday in Cook County is met by the people of the State of Illinois, not only Cook County, but every county and every state in the United States.”

A similar closing argument comment was held improper in People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86, because it “had the effect of lessening the importance of the State’s burden of proof by implying that reasonable doubt was merely a pro-forma or minor detail.”

The State responds that defendant waived this issue by failure to object to the comment during argument and by failure to include it in his written motion for a new trial. (People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856), and that this comment was invited by defense counsel’s comments on the burden of proof. We do not believe that defense counsel’s comment that the State has the burden to go forward with the evidence was an invitation to this improper comment. (See People v. Hamilton (1980), 80 Ill. App. 3d 794, 805, 400 N.E.2d 599.) However, even assuming that this issue had not been waived, we conclude that the error committed did not contribute to the jury’s verdict and was harmless beyond a reasonable doubt. Martinez is not controlling because in that case, the appellate court reversed on other grounds and did not hold that the prosecutorial comment similar to the one in issue, standing alone, could be considered reversible error. People v. Ayala (1981), 96 Ill. App. 3d 880, 883-84, 422 N.E.2d 127.

Defendant also contends that the cumulative effect of these alleged errors denied him a fair trial and requires that he be granted a new trial. (See People v. Miles (1980), 82 Ill. App. 3d 922, 932, 403 N.E.2d 587.) We disagree. The testimony of the complaining witness in this case was clear and convincing as to both the nature of defendant’s acts and the lack of consent on her part. Furthermore, other corroborating circumstances support the conclusion that the sexual relations between defendant and complainant were not consensual. First, the nurse’s testimony that she observed red, raw areas on both of complainant’s wrists corroborated complainant’s testimony that defendant had tied her hands with her scarf. Secondly, the fact that the victim ran from the van with defendant’s knife was corroborated by Fontana, and this fact is consistent with complainant’s testimony that she was abducted at knifepoint and sexually assaulted. Given the convincing nature of the State’s proof, we are compelled to hold that the alleged errors, whether viewed individually or cumulatively, were harmless beyond a reasonable doubt.

II

Alternatively, defendant argues that his convictions for rape, unlawful restraint, armed violence based upon unlawful restraint, and one count of deviate sexual assault must be vacated as parts of other offenses. First, defendant contends that his convictions of rape and armed violence based upon rape both cannot stand because they were predicated on the same unlawful acts, and that the conviction for rape should be vacated.

Although appellate courts in Illinois have handed down conflicting opinions on the issue of whether a defendant can be convicted of both armed violence and its underlying felony (People v. Pearson (1981), 102 Ill. App. 3d 732, 738-41, 430 N.E.2d 304 (Downing, J., concurring in part and dissenting in part)), our supreme court, in its recent opinion in People v. Donaldson (1982), 91 Ill. 2d 164, clarified the law on this issue. In Donaldson, defendant had been convicted of attempted murder, aggravated battery causing great bodily harm, aggravated battery causing permanent disfigurement, aggravated battery using a deadly weapon, and armed violence based upon aggravated battery causing great bodily harm. In the supreme court, no issue was raised regarding the attempted murder conviction, and the parties agreed that the three shots which struck the victim constituted three separate acts and that each act could be the basis for conviction of a separate and distinct offense. The only question before the court was whether the three convictions of aggravated battery and the conviction for armed violence could stand, considering that the four offenses had been carved from only three distinct physical acts. In holding that defendant’s conviction for aggravated battery causing great bodily harm should be vacated, the court stated:

“In the absence of a clear legislative expression to the contrary we hold that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. A defendant is prejudiced ‘where more than one offense is carved from the same physical act.’ [Citations.] Here convictions for both armed violence and aggravated battery causing great bodily harm were improper. Judgment should have been entered and sentence imposed-only on the more serious offense. [Citation.]” (91 Ill. 2d 164, 170.)

In reaching this conclusion, the supreme court stated that the “armed violence statute enhances the. mandatory minimum sentence to be imposed upon conviction of a felony.” (91 Ill. 2d 164, 169.) We note, however, that the armed violence statute would not enhance the mandatory minimum penalty where the underlying felony is a Class X felony such as rape.

We are of the opinion that Donaldson does not prohibit convictions for both rape and armed violence based on rape in the instant case, because there were three clearly divisible physical acts of rape here. In fact, between the first and second acts of intercourse, complainant testified that she and defendant had a conversation for 15 or 20 minutes and that defendant consumed alcoholic beverages during that time. Between the second and third acts of intercourse, defendant and complainant dressed, returned to the front of the van, and had another conversation.

The standard for determining when multiple convictions and concurrent sentences are permissible was established in the leading case of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (66 Ill. 2d 551, 566.)

The test set forth in King was recently applied by our supreme court in People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535. In Myers, the court upheld defendant’s convictions and concurrent sentences for attempted murder and armed violence based upon aggravated battery. In that case, the court found that there were two separate invasions of the victim’s body and not one physical act, where the defendant wounded the victim with a knife, and then, after an intervening attack on a third person, inserted the knife a second time in the same area of the victim’s body.

Illinois appellate court decisions, construing King, have held that a defendant can be convicted and sentenced for both a greater offense and a lesser included offense, where the act constituting the greater is clearly divisible from the act constituting the lesser, or where there is a sufficient interval of time between such acts. This is so even though the acts are a part of the same criminal transaction. (People v. Olbrot (1982), 106 Ill. App. 3d 367,_N.E.2d_; People v. Cross (1980), 84 Ill. App. 3d 868, 873, 406 N.E.2d 66.) In Cross, the appellate court upheld a defendant’s convictions and sentences for both attempt murder and aggravated battery where the defendant struck the victim and after an interval, his accomplice shot the victim. Although the theory of accountability was employed in Cross and Olbrot in finding that there were separate acts for which separate convictions and sentences were proper, we are of the opinion that the testimony of complainant in the instant case established clearly divisible acts of rape separated by a sufficient interval of time. Accordingly, we conclude that there was sufficient evidence to sustain defendant’s convictions and sentences for both rape and armed violence based upon rape.

Secondly, defendant contends that his conviction for unlawful restraint should be vacated as a lesser included offense of the crime of aggravated kidnapping, and that since the unlawful restraint conviction should be vacated, his conviction for armed violence based upon unlawful restraint must also be set aside. The State responds that the acts which constituted aggravated kidnapping were separate from the acts of unlawful restraint and that both convictions may stand. Specifically, the State argues that the offense of aggravated kidnapping was completed after the second act of intercourse, and that a separate act of unlawful restraint occurred when defendant subsequently pulled her into the back of the van. The State cites no cases to support this position, and we do not feel that this criminal transaction can be so easily compartmentalized.

We believe that convictions for both aggravated kidnapping and unlawful restraint are not proper under King, because the acts constituting each offense are not clearly divisible. Under King, where a defendant has performed multiple acts, prejudice exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Here, defendant’s conviction for aggravated kidnapping was based upon a count in the information which charged that he, knowingly by force and threat of imminent force, carried the complainant from one place to another with intent secretly to confine her against her will and committed the felony of rape upon her. His conviction for unlawful restraint was based upon a charge that he knowingly without legal authority detained the complainant. Under these circumstances, unlawful restraint is a lesser included offense of aggravated kidnapping, because all of the elements of unlawful restraint are included within aggravated kidnapping. (See People v. Smith (1980), 78 Ill. 2d 298, 306, 399 N.E.2d 1289; Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 1, 10— 2, 10 — 3.) Therefore, under King, we vacate the conviction for unlawful restraint.

Armed violence based upon unlawful restraint is not a lesser included offense of aggravated kidnapping, at least under the circumstances presented here, because the charge of armed violence required proof of an additional element which the charge of aggravated kidnapping did not. In order to commit armed violence a person must be armed with a dangerous weapon. (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.) The count of the information charging defendant with aggravated kidnapping required no such proof. Accordingly, defendant has presented no persuasive argument for vacating his conviction of armed violence based upon unlawful restraint.

The State requests that this case be remanded to the circuit court for sentencing on the unlawful restraint and armed violence based upon unlawful restraint convictions. We have already vacated the conviction for unlawful restraint; however, on the authority of People v. Scott (1977), 69 Ill. 2d 85, 88, 370 N.E.2d 540, we remand the cause to the circuit court for entry of a sentence on the armed violence based upon unlawful restraint conviction.

Thirdly, defendant maintains that one of his convictions of deviate sexual assault must be vacated because each count charged a violation of the same statute by a different means. (See Ill. Rev. Stat. 1979, ch. 38, par. 11— 3.) One count of the information for deviate sexual assault charged oral copulation. The other charged cunnilingus.

Defendant relies primarily on People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, and People v. Short (1978), 62 Ill. App. 3d 733, 379 N.E.2d 360. In Cox, our supreme court held that a conviction and sentence imposed on one of two counts of indecent liberties with a child could not stand, where the two counts were based upon a single transaction, charged two acts almost simultaneous in time, and involved a single victim, and each act was in violation of a single section of a criminal statute. Relying on Cox, the appellate court, in Short, vacated a judgment and sentence imposed by the trial court on a count of deviate sexual assault for fellatio and affirmed the conviction and sentence on the charge of deviate sexual assault for cunnilingus. See also People v. Tate (1976), 37 Ill. App. 3d 358, 359-61, 346 N.E.2d 79.

We note that the rationale of Cox has been questioned in the recent opinion in People v. Zeiger (1981), 100 Ill. App. 3d 515, 517, 426 N.E.2d 1229. We, however, do not reach this issue because we conclude that the “almost simultaneously” rule expressed in Cox is not applicable to the instant case. (See People v. Armstrong (1979), 77 Ill. App. 3d 916, 921, 396 N.E.2d 845, cert. denied (1980), 447 U.S. 926,65 L. Ed. 2d 1120, 100 S. Ct. 3022.) Here, the first act of cunnilingus and the act of fellatio were separated in time by an act of intercourse, by defendant and complainant getting dressed and holding a conversation, and by a second act of cunnilingus. Thus, Cox is inapposite because the alleged sex acts were not almost simultaneous but were, in fact, separate and distinct. Therefore, we conclude that both convictions for deviate sexual assault were proper.

III

Defendant’s final argument is that he is entitled to the issuance of a corrected mittimus which reflects the sentence announced by the trial court. The transcript of the sentencing hearing shows that defendant received a prison term of 10 years for the conviction of aggravated kidnapping; however, the mittimus indicates that defendant was sentenced to 15 years’ imprisonment for that conviction. The State agrees that defendant is entitled to a corrected mittimus, and both agree that this cause should be remanded to the circuit court for the issuance of a corrected mittimus reflecting a sentence of 10 years for aggravated kidnapping. We concur in this conclusion. See People v. Pittman (1979), 75 Ill. App. 3d 683, 689, 394 N.E.2d 702; People v. Fetters (1977), 48 Ill. App. 3d 623, 626-27, 363 N.E.2d 606; People v. DePratto (1976), 36 Ill. App. 3d 338, 342, 343 N.E.2d 628.

Accordingly, the judgments entered by the circuit court of Cook County for rape, armed violence based upon rape, two counts of deviate sexual assault, aggravated kidnapping and armed violence based upon unlawful restraint are affirmed; the judgment for unlawful restraint is vacated; and the cause is remanded for entry of a sentence on the armed violence based upon unlawful restraint conviction and for the issuance of a corrected mittimus.

Affirmed as modified.

McNAMARA and McGILLICUDDY, JJ., concur.

       In reaching this decision, we are not holding that rape is a lesser included offense of armed violence based upon rape.

      Although no sentence was imposed for unlawful restraint, this court has power to vacate incomplete judgments. People v. Lilly (1974), 56 Ill. 2d 493, 496, 309 N.E.2d 1.


author: JUSTICE LORENZ

text:
    AINSWORTH CORPORATION, Plaintiff-Appellant, v. CENCO, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 81-486
    Opinion filed June 11, 1982.

      Meyer, New, Berlin & Braude, of Chicago (Arthur E. Berlin and Curtis E. Sahakian, of counsel), for appellant.
    James M. Amend and Bruce A. Featherstone, both of Kirkland & Ellis, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Ainsworth Corporation (Ainsworth) appeals from an order of the circuit court of Cook County granting summary judgment in favor of defendants Cenco Corporation and Sherwood Irvin (Cenco).

Plaintiff’s sole contention on appeal is that genuine issues of material fact remain with respect to whether the terms of a general release preclude the institution of a tort action against the defendants for fraud in the inducement of a contract.

Material to our disposition are the following facts.

In June of 1976, plaintiff and defendants entered into an asset purchase agreement whereby plaintiff agreed to purchase, among other assets, all of the inventory and operating assets of the Medical Products Group of Cenco Medical Industries, Inc., a wholly owned subsidiary of Cenco. The Medical Products Group was engaged in the manufacture and sale of medical sutures and related hospital and medical products.

A section of the asset purchase agreement entitled “Representations and Warranties of Sellers and Cenco” contained a provision which stated that the Medical Products Group manufacturing processes and sterility procedures implemented under Cenco were in compliance with State and Federal safety laws, including the U.S. Pure Food and Drug Act. It provided in pertinent part that: “to the best of [Cenco’s] knowledge none of the properties owned, occupied or operated by [Cenco], nor the ownership, occupancy or operation thereof, is, to any extent materially and adversely affecting the business of [Cenco], in violation of any law, ordinance or regulation or * * * federal, state and local safety laws, regulations and ordinances (including ® * e the United States Pure Food and Drug Act, or similar laws and regulations * * *.)”

The consideration for this asset purchase agreement included a small amount of cash at closing, a one-year promissory note for $200,000 and $435,000 of Ainsworth preferred stock. The stock was convertible into a debt instrument in the event of Ainsworth’s failure to pay dividends and made redemptions as specified in the asset purchase agreement schedule.

Shortly after consummation of the purchase, a dispute arose between the parties which persisted for several months. Ainsworth alleged that there were substantial discrepancies in Cenco’s statements concerning the liabilities and assets of the Medical Products Group, particularly relating to inventory assets. Ainsworth subsequently defaulted upon its promissory note payments and stock redemption obligations.

At the request of Ainsworth’s president, Joseph Cvengros, both parties entered into a letter agreement in January of 1977 “in order to resolve the existing dispute between us.”

This settlement agreement stated that:

“[Cenco has] contended that Ainsworth is in default with respect to certain of its obligations thereunder * * *. The [Asset Purchase] Agreement also contains various representations and warranties by [Cenco] and [Ainsworth] contend[s] that certain of those representations and warranties have been breached. In order to resolve the existing dispute between us, we have all agreed to the following * * *. ”

In the settlement agreement, Cenco agreed to substantial financial concessions as to plaintiff’s payment obligations, including a reduction of interest on the $200,000 note, a 10-month deferral of any payments on the note, a 15-month deferral of stock dividend payment and redemption, and a waiver of past defaults.

The settlement agreement further provided “that the representations and warranties of [Cenco] in the [Asset Purchase] Agreement shall all expire on the date of [the settlement agreement] and Ainsworth and Cvengros waive any breach of any of such representations, warranties or covenants, or any default under the agreement which may have occurred prior to the date of this agreement.” (Emphasis added.)

Approximately four months later, the U.S. Food and Drug Administration investigated the medical products facilities acquired by the plaintiff from Cenco, in order to ascertain its compliance with the Federal Food, Drug and Cosmetic Act.

The investigation revealed that the plaintiff’s manufacturing process of the medical products and sterility procedures, originally instituted by Cenco and continued under Ainsworth, violated Federal regulations.

The sanctions for noncompliance included a forced recall of medical products, which included products sold both by plaintiff and previously by defendants; and the manufacturing facility was rendered nonoperational for approximately six months.

Ainsworth subsequently defaulted on the payment terms embodied in the settlement agreement. Cenco filed suit against plaintiff and obtained a favorable $478,634 judgment by confession on its note on June 2, 1978.

One week later, plaintiff petitioned for injunctive relief and monetary damages, and alleged that defendants had fraudulently induced it to purchase the medical products group by misrepresenting that it was being operated in accordance with government manufacturing and sterility procedures.

Defendants filed a verified answer which asserted several affirmative defenses, including plaintiff’s waiver of any rights arising out of any breach of a warranty or representations in the asset purchase agreement, by virtue of the terms of the settlement agreement. Plaintiff did not file a reply.

Following disposition of plaintiff’s motion for injunctive relief, this cause was transferred to the law division, whereupon defendants moved for summary judgment. On the day of the hearing on the motion, plaintiff filed an affidavit signed by its president, Cvengros, who set forth, inter alia, (1) that during the course of negotiations he asked and received assurances from Cenco that the medical products facilities fully complied with the law, which he relied upon in entering into the asset purchase agreement; (2) that the disputes resolved by the settlement agreement did not involve any question of compliance with FDA regulations, and (3) that both parties were silent with regard to such question in the negotiations leading up to and including the execution of the settlement agreement. Following this hearing, the trial court granted defendants’ motion for summary judgment and this appeal was taken.

Opinion

We preface our discussion by noting that the purpose of a summary judgment proceeding is to determine whether issues of fact exist between the parties; and if the proceeding discloses issues of fact, the motion must be denied. (Morris v. Anderson (1970), 121 Ill. App. 2d 169, 259 N.E.2d 601.) Summary judgment provides the means of disposing of cases with dispatch, but it is a drastic method and should be allowed only when the right of the party to invoke summary judgment is clear and free from doubt. Kolakowski v. Voris (1979), 76 Ill. App. 3d 453, 395 N.E.2d 6.

Since facts, not conclusions, must be presented, the trial court may not draw inferences on a motion for summary judgment. (State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 260 N.E.2d 415.) Moreover, if the issue is debatable the drastic remedy of summary judgment should not be granted where the facts, although not in dispute, are subject to conflicting inferences.and the parties disagree as to what their intention was as shown by the facts. Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 344 N.E.2d 29.

We turn first to consider plaintiff’s argument that genuine issues of material fact remain with respect to whether the settlement agreement release bars a subsequent action against defendants for fraud in the inducement of the asset purchase agreement.

In the case before us, the trial court found that the terms of the settlement agreement between these parties was unambiguous and effectively barred the subsequent tort action, as a matter of law. Although whether any contract is or is not ambiguous is ordinarily a question of law for initial determination by the trial court, we do not agree with the result reached in the present case where the taint of fraud has been alleged.

A careful review of the record does not disclose an unequivocal denial by defendants that fraudulent representations were not in fact made to the plaintiff. Instead, defendants persistently argue that the plain language of the settlement agreement waiving “any breach of any such representations” wholly precludes any interpretation to the contrary.

We are not persuaded by defendants’ argument. Since a release is a contract, its construction is governed by the rules of law that prevail in contract cases (Affiliated Realty & Mortgage Co. v. Jursich (1974), 17 Ill. App. 3d 146, 308 N.E.2d 118), and no form of words, no matter how all encompassing, will foreclose scrutiny of a release (Florkiewicz of Gonzalez (1976), 38 Ill. App. 3d 115, 347 N.E.2d 401) or prevent a reviewing court from inquiring into surrounding circumstances to ascertain whether it was fairly made and accurately reflected the intention of the parties. Willis v. Reum (1978), 64 Ill. App. 3d 146, 381 N.E.2d 46.

Accordingly, we have carefully examined, in toto, the circumstances surrounding the execution of the release which were raised by the pleadings.

For the sake of clarity, we will first address the effect of any fraud in the inducement of the original contract, the asset purchase agreement.

In order to constitute “fraud invalidating a contract” a representation (1) must be one of material fact which has been made for the purpose of inducing the other party to act, (2) must be known to be false by the maker, but reasonably believed to be true by the other party, and (3) must be relied upon by such other party and acted upon to his damage. Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 379 N.E.2d 1307.

Such fraud in the inducement vitiates all contracts (Shanle v. Moll (1974), 25 Ill. App. 3d 113, 323 N.E.2d 148) and renders it voidable at the option of the injured party. Rresler Ice Cream Co. v. Millionaires Club, Inc. (1966), 71 Ill. App. 2d 342, 218 N.E.2d 891.

Defendants strenuously argue, however, that while Ainsworth has alleged fraud which would vitiate the asset purchase agreement, the subsequent release was not tainted by fraudulent representations and was freely entered into by both parties. Consequently, defendants contend that no genuine issues of material fact remain with respect to fraud in the inducement of the release. We disagree.

Generally, a party who was fraudulently induced to enter into a contract, for the acquisition of property, but who later receives some substantial concession from, or enters into a new contract with the party guilty of fraud, with knowledge of the prior deception, thereby relinquishes all right to recover damages because of the misrepresentations. However, the question of whether a settlement of a claim for fraud has been effected as a part of a subsequent transaction between the parties is a question of fact. See 37 Am. Jur. 2d Fraud & Deceit sec. 397 (1968).

As the court in Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 94 , 379 N.E.2d 1307, succinctly stated: “It is true that one may waive a defense of fraud by entering a new contract; however, knowledge of the fraud at the time of signing the [second contract] is a prerequisite to such waiver. [Citations.] The representation in this case was of a continuing character, and [the injured party] was entitled to rely upon it until informed otherwise. See 37 Am. Jur. 2d Fraud & Deceit §242 (1968). To hold otherwise in this case would establish a precedent whereby a party, who fraudulently induces one to enter a contract, could eliminate the defense of fraud by merely managing to execute a [second] contract, with some modified terms, without disclosing the original fraud. Such a result would clearly be contrary to the established principle that a party committing fraud should be precluded from benefiting therefrom.” (Emphasis added.)

Since a determination of whether or not fraud has been waived is generally a question of fact, and the significance of silence or inaction after discovery of fraud is also to be determined by the trier of facts in the light of all the circumstances (see 37 Am. Jur. 2d Fraud & Deceit sec. 386 (1968)), we find that genuine issues of material fact remain which were not proper matters for disposition by summary judgment.

We next consider plaintiff’s contention, apparently in the alternative to its theory of fraud, that the settlement agreement release was entered into solely as a limited release of contractual claims which related to a disputed inventory shortfall. In response, Cenco argues that plaintiff intended to bargain away any claims that it might have had in order to gain substantial financial concessions in its payment obligations from Cenco.

We find that this is an additional and independent ground to deny the all-inclusive effect of the release in question. Illinois courts have uniformly held that the scope and extent of a release is controlled by the intent of the parties signing it. (Pate v. City of Sesser (1979), 75 Ill. App. 3d 233, 393 N.E.2d 1146.) Such intent is determined from the language of the release when read in light of all circumstances surrounding the transaction. (Gladinus v. Laughlin (1977), 51 Ill. App. 3d 694, 366 N.E.2d 430.) As the Gladinus court stated: “Under this approach, Illinois courts will restrict the language of a general release to the thing or things intended to be released and refuse to interpret generalities so as to defeat a valid claim not then in the minds of the parties.” 51 Ill. App. 3d 694, 696.

Since we have consistently held that where the parties seek to draw inferences on a question of intent, a summary judgment disposition is particularly inappropriate (State National Bank v. Kewanee National Bank (1973), 16 Ill. App. 3d 272, 305 N.E.2d 732), we find that the facts presented in this case fall precisely within this rule.

Finally, we consider defendants’ argument that the Cvengros counter affidavit, filed by Ainsworth in response to Cenco’s motion for summary judgment on the day of the hearing on the motion, was not timely filed and did not create any contested fact issue to defeat summary judgment.

Although we have previously addressed the latter issue, in order to guide the trial court we note that in accordance with section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57) the opposite party may prior to or at the time of the hearing on the motion for summary judgment file a counteraffidavit.

While we do not advocate plaintiff’s delay in filing, we specifically find that the Cvengros counteraffidavit was timely filed and may be considered by the trial court on remand.

For the foregoing reasons the order of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

SULLIVAN, P. J., and MEJDA, J., concur.


author: JUSTICE JIGANTI

text:
    MARVIN N. BENN & ASSOCIATES, LTD., Plaintiff-Appellant, v. NELSEN STEEL AND WIRE, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-1631
    Opinion filed June 24, 1982.

      George W. Hamman and Wayne H. Michaels, both of Chicago, for appellant.
    Edward S. Silber, John R. F. Baer, and Paul G. Simon, all of Chicago, for appellees.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Marvin N. Benn & Associates, Ltd. (Benn), is a professional service corporation organized to render legal services pursuant to the Professional Service Corporation Act (PSCA) (Ill. Rev. Stat. 1979, ch. 32, par. 415 — 1 et seq.). Benn entered into a contract with Transplex, Inc., an Illinois corporation. Benn alleged that the defendants, Nelsen Steel & Wire, Inc., and Daniel Nelsen, tortiously interfered with its contract with Transplex. The defendants moved to dismiss the complaint pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45 and 48). The trial court dismissed the complaint on the basis that Benn is a corporation to provide legal services and services ancillary to the legal services. Since Benn’s contract with Transplex was primarily a business contract which was not for legal services or services ancillary to any legal services, the trial court concluded that it was against public policy for a court to enforce such a contract. Consequently, it was also against public policy for a court to entertain a cause of action for tortious interference with such a contract.

Benn contends that the contract was for legal services and services ancillary thereto. Furthermore, Benn contends that such a contract, even if beyond the powers of a legal professional service corporation, is not violative of public policy.

The terms of the contract at issue are as follows:

“It is hereby agreed between MARVIN N. BENN & ASSOCIATES, LTD., and Transplex, Inc., * * * that:
Marvin N. Benn & Associates, Ltd., will search for and provide to the parties named contacts for the sale of any and all goods, materials, including other products, and for the organization of joint ventures in and to Tiawan [sic] and or mainland China. Should such efforts by Marvin N. Benn & Associates, Ltd., cause any such products and materials to be traded or ventures to be entered either on Tiawan [sic] or in mainland China, each signatory hereto agrees to pay to Marvin N. Benn and Associates 50% of all monies received, less reasonable expenses as a result of said contacts. * * *
This agreement shall be subject to the laws of Illinois and represents the complete agreement between the parties. Any changes in this agreement must be reduced to a writing and signed by all the parties.” (Emphasis added.)

The contract is typed on stationery entitled “Law Offices, Marvin N. Benn & Associates, Ltd.” Marvin N. Benn signed the contract as representative of Marvin N. Benn & Assoc., Ltd.

Approximately eight months after the filing of the original complaint, but before the court had ruled on the motions to dismiss, Benn filed a supplemental memorandum which included an affidavit from Marvin N. Benn. The affidavit stated:

“1. That sometime in November, 1979, Mr. Way-Sun Liao, an individual and the president of Transplex, Inc. and Robert Chang, an individual, came into my office seeking legal services to help them complete transactions between China and the United States. They were interested in setting up the proper corporate structures for international transactions with the best tax advantage. They were also interested in obtaining contacts with different suppliers of materials and services to be bartered with the government of China.
2. They informed me that they had no money to pay me and asked me if I perform [sic] the services on a contingency basis.
3. A discussion ensued as to what that contingency would be and we agreed that a reasonable fee would be one half of any and all broker’s fees received by them resulting from any contacts that I provided.
4. They also sought legal advice regarding whether or not certain items could be sold to China, and if so, how. I provided contacts and legal services, including negotiations of proposed contracts in China while I was in China with them and further negotiations of contracts in their behalf in the United States.
5. The business contacts that I provided were incidental to the legal services required to bring this whole venture into being.” (Emphasis added.)

When the trial court ruled, it had before it the contract, the affidavit and a copy of the plaintiff’s articles of incorporation which state under the heading of “Purposes for which the corporation is organized” that Marvin N. Benn is a:

“Professional Corporation: to practice the profession of law and rendering that type of professional services and services ancillary thereto.” (Emphasis added.)

The defendants argue on appeal, as they did in the trial court, that Benn cannot support an action for tortious interference with contract based on this agreement because the terms of the contract violate public policy. As support for this argument, the defendant cites section 415 — 6 of the PSCA, which states:

“A professional corporation may be organized under this Act only for the purpose of rendering one specific type of professional service and services ancillary thereto.” (Emphasis added.)

The defendant also cites certain Canons of the Illinois Code of Professional Responsibility adopted by the Supreme Court of Illinois and certain Illinois State Bar Association Ethics Opinions. These sources will be discussed later in this opinion.

The first question on appeal is whether this is a contract for legal services and services ancillary thereto. The plaintiff argues that the trial court abused its discretion in concluding that the primary purpose of the agreement was to provide business services to Transplex rather than legal services because the affidavit and the contract were before the court. The affidavit states that “the business contacts that I provided were incidental to the legal services.” Benn therefore urges us, as it did the trial court, to consider the primary purpose of the contract in the light of the affidavit.

We believe that it was not error for the trial court to conclude that the primary purpose of this contract was to render business services to Transplex even when construed in the light of the affidavit. The affidavit attempts to show that this agreement grew out of an arrangement between the parties in which legal services were primary and this contract was only ancillary to these legal services. However, under the terms of the contract, Benn agrees to “search for and provide to the parties named contacts for the sale of any and all goods, materials, including other products,” and to facilitate “the organization of joint ventures in and to Tiawan [sic] and or mainland China.” Transplex on its part “agrees to pay to Marvin N. Benn & Associates 50% of all monies received, less reasonable expenses” as a result of said contacts. The agreement is silent on the subject of legal services to be rendered. The words “legal services” or the word “legal,” itself, appears nowhere on the face of the document. There is no mention of legal fees, contingent or otherwise, to be paid for such legal services. The contract further states that Benn’s remuneration is to be based upon supplying business “contacts” to Transplex rather than upon the performance of legal services. Specifically, Benn will be reimbursed for introducing business people to Transplex and will be paid a percentage of the amount of money generated by thfese business contacts.

The trial court concluded as a matter of law that this contract was clear according to its terms; that this was a contract to render a business service to Transplex. The business service was to find customers for Transplex. Construction of a contract is a pure question of law and the court must determine this from the document’s clear language. (Kravis v. Smith-Marine, Inc. (1974), 20 III. App. 3d 483, 314 N.E.2d 577.) Therefore, assuming that the facts contained in the affidavit are true as part of a well-pleaded complaint, we still believe that it was reasonable for the trial court to conclude that the primary purpose of this contract was to create a business arrangement, and legal services were only ancillary to this agreement.

Having once decided that the primary purpose of this contract is to render business services and any legal services are to be ancillary thereto, we next reach the question of whether or not it is against public policy for a court to entertain an action based upon tortious interference with such a contract. The plaintiff claims that the trial court erred in holding that it was against public policy to entertain such an action based on this contract because public policy is such an elusive concept.

We do not believe that public policy in the area of a contract which involves the professional conduct of attorneys is elusive. An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or is at war with the interests of society or is in conflict with the morals of the time. (See Ziegler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180, 91 N.E. 1041.) In the instant cause, we are dealing with a contract signed by Marvin N. Benn, an attorney, as representative of a legal professional corporation organized under the PSCA; written upon the stationery of this legal professional corporation; which has as its primary purpose a business transaction with ancillary legal services. The indicia of public policy regarding lawyers, acting in a dual capacity as lawyers and in some other business or professional capacity, is threefold. The public policy of Illinois on this subject can be found in its statutory law, in the Illinois Code of Professional Responsibility adopted by the Supreme Court of Illinois on July 1, 1980, and in various ethical opinions issued by the Illinois State Bar Association. These are all appropriate sources for defining Illinois public policy. Illinois State Bar Association v. UMW, District 12 (1966), 35 Ill. 2d 112, 219 N.E.2d 503; People v. Buster (1966), 77 Ill. App. 2d 224, 222 N.E.2d 31.

The strongest indicator of public policy is a statute. Where the legislature speaks upon a subject, upon which it has constitutional power to legislate, public policy is what the statute passed by it indicates. (Henderson v. Foster (1974), 59 Ill. 2d 343, 347, 319 N.E.2d 789, 792.) Section 415 — 6 of the PSCA deals specifically with approved functions of lawyers who have incorporated under its aegis. The statute expressly provides that such a corporation may render one specific type of professional service and services ancillary thereto. The specific type of professional service for which Benn & Associates was organized is contained in its articles of incorporation as “the profession of law.” Therefore, public policy as embodied in the legislative mandate under section 415 — 6 of the PSCA can be said to disapprove a contract by a legal professional corporation which renders business brokering services as its primary function and only secondarily legal services.

Supreme Court Rules have the function of law (Harris v. Annunzio (1952), 411 Ill. 124, 103 N.E.2d 477) and thus are another strong indicator of public policy in the area of attorney conduct. The Illinois Code of Professional Responsibility is a Supreme Court Rule. (81 Ill. 2d R. 1 — 101 et seq.) The Illinois Code of Professional Responsibility adopts two disciplinary rules which are relevant to an attorney acting in a dual capacity. Rule 2 — 102(c) states:

“A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.” (Emphasis added.)

Rule 2 — 103(a) states:

“A lawyer shall not by private communication * * * directly or through a representative, recommend or solicit employment of himself, his partner or his associate for pecuniary gain or other benefit and shall not for that purpose initiate contact with a prospective client.” (Emphasis added.)

The Illinois State Bar Association has interpreted Rule 2 — 103(a) and Rule 2 — 102(c) in various “Ethical Opinions.” Professional Ethics Opinion No. 677 (69 Ill. B. J. 386 (1981)) specifically deals with the problem of practicing a business out of the same law office. The opinion states that the conduct of another business in the same office from which the attorney conducts his legal practice is a form of solicitation or recommendation. The opinion concludes that it is the intent of the Code as adopted by the Illinois Supreme Court “to keep the practice of law and other profession or business separate.” The opinion states that this is true even when the lawyer is performing such dual professional services for the same client. The problem is that such conduct “opens the door to an accusation that the attorney is soliciting business.” 69 Ill. B. J. 386 (1981).

The rationale as to why public policy is offended when lawyers engage in in-person solicitation has been stated by the United States Supreme Court. Although the Supreme Court of the United States in Bates v. State Bar of Arizona (1977), 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691, approved advertising for attorneys, the court was careful to draw a distinction between advertising and in-person solicitation of clients. The court stated that any such in-person solicitation “might well pose dangers of overreaching and misrepresentation not encountered in newspaper announcement advertising.” (433 U.S. 350, 366, 53 L. Ed. 2d 810, 825, 97 S. Ct. 2691, 2700.) The Supreme Court again addressed itself to the problem of in-person solicitation by attorneys in Ohralik v. Ohio State Bar Association (1978), 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912. The court stated:

“The substantive evils of solicitation have been stated over the years in sweeping terms: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, under representation, and misrepresentation. The American Bar Association, as amicus curiae, defends the rule against solicitation primarily on three broad grounds: It is said that the prohibitions embodied in DR2 — 103(A) and 2 — 104(A) serve to reduce the likelihood of overreaching and the exertion of undue influence on lay persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s exercise of judgment on behalf of the client will be clouded by his own pecuniary self-interest.” 436 U.S. 447, 461, 56 L. Ed. 2d 444, 457, 98 S. Ct. 1912, 1921.

The Supreme Court of Illinois has cited with approval the rationale against in-person solicitation by lawyers given in Ohralik. (See In re Teichner (1979), 75 Ill. 2d 88, 387 N.E.2d 265.) The Illinois Supreme Court also dealt directly with a situation in which a “Trade Mark Service” owned by an attorney was found to be a “feeder” for the attorney’s law practice and a basis for his in-person solicitation of legal clients. (In re Miller (1955), 7 Ill. 2d 443, 131 N.E.2d 91.) In affirming the disbarment of the attorney, the court responded in the following way to the defendant’s argument that a lawyer may own and operate a business alongside of his law practice if he does not exploit the business with a motive to convert it into a medium of solicitation. The court stated: “The offense of solicitation of business is not one which imports venality, criminality, fraudulent practices or moral turpitude. [Citation.] Nevertheless its practice is inimical to the good reputation of the bar in general, is strictly prohibited and studiously to be avoided.” In re Miller (1955), 7 Ill. 2d 443, 454, 131 N.E.2d 91, 97.

When the contract at issue here is scrutinized in the light of a public policy rationale against “feeder” businesses and in-person solicitation by lawyers, we agree with the trial court that it offends public policy. The terms of the contract provide a situation in which a business transaction may ultimately be used as a “feeder” for legal services or a contractual scheme in which business contacts may be used as a basis for soliciting legal employment. Although we recognize that such a conclusion may only be speculative, anything which might tend to debase the learned professions is at war with the public interest and is therefore contrary to public policy. (In re Miller (1955), 7 Ill. 2d 443, 131 N.E.2d 91.) Also any contract which might have the effect of facilitating in-person solicitation by lawyers has a tendency to injure the public and is inconsistent with sound policy and good morals. Ziegler v. Illinois Trust & Savings Bank (1910), 245 Ill. 180, 91 N.E. 1041.

A contract which has as its subject something which has a tendency to be injurious to the public or against the public good will not be enforced by an Illinois court. (People v. Herrin (1918), 284 Ill. 368, 120 N.E. 274; In re Estate of Johnson (1949), 339 Ill. App. 110, 88 N.E.2d 886; Martin v. City of Greenville (1977), 54 Ill. App. 3d 42, 369 N.E.2d 543.) In the instant cause, the plaintiff filed a complaint against the defendant for tortious interference with a contract that an Illinois court will not enforce because it is against public policy.

Therefore, we believe that the trial court was correct in dismissing the complaint.

Affirmed.

JOHNSON, P. J., and LINN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER GRAVES, Defendant-Appellant.
    First District (5th Division)
    No. 80-1230
    Opinion filed June 18, 1982.
    Rehearing allowed May 26, 1982 and opinion filed March 26, 1982 vacated.

      Ralph Ruebner and Eva Field, both of State Appellate Defender’s Office, of Chicago, for-appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Richard T. Sikes, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Defendant was charged by a three-count information with attempt murder, aggravated battery based on great bodily harm and aggravated battery based on the use of a deadly weapon.

Following a jury trial, he was acquitted of the first two counts and convicted of count III, aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)), and was sentenced to a term of four years imprisonment.

On appeal, he contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the information upon which he was convicted is fatally defective because it fails to sufficiently set forth the nature and elements of the offense of aggravated battery; (3) legally inconsistent verdicts were improperly rendered; and (4) his sentence was excessive.

The following pertinent evidence was adduced at trial.

On August 11,1977, defendant was one of the employees working the midnight shift at a gauze mill plant in Bedford Park, Illinois, under the supervision of complainant Michael Lopez. At approximately 6 a.m. a meeting was held concerning defendant’s recurrent tardiness to work, following which Lopez suspended him for three days. Defendant did not exhibit any anger towards Lopez at this time.

Toni Suchovsky, a gauze pad operator, testified for the State that at about 6:40 a.m. she was waiting for a mechanic to fix her machine when she happened to look up and see defendant and Michael Lopez standing face-to-face about. 25 yards away. Although she heard no conversation between them, within a matter of seconds she saw defendant strike Lopez on the head, who then fell onto the floor, bleeding and shaking.

Jo Ann Brake operated machines numbered 45 and 46 about 22 yards from Toni Suchovsky’s location. Although she ordinarily faced her in her normal working position, she had turned in the opposite direction to work at her packing table and saw Lopez stop to speak to another employee, Frank Zankl, before he approached defendant. They were approximately 12 feet from her location, but due to the machinery noise she could not hear their conversation until defendant began talking loudly and telling Lopez, “to get away from [me], I told you to stay away from me, leave me alone,” or words to that effect.

Neither man was touching each other and neither man was holding a weapon when she turned her back to them. About one minute later she heard a thud behind her and turned around in time to see Lopez fall and raise his hands to his head, which had begun to bleed. She saw that defendant was holding a metal bar in his hand (later identified as People’s Exhibit No. 1), which he tossed into the wastebasket behind her machine before looking at her and walking away.

She further testified that People’s Exhibit No. 1 was a metal bar which, to her knowledge, was always positioned within brackets on the back of her machine, number 45. Since she was not facing it while working in her normal position, she did not see if defendant had removed it from the brackets.

Anna Marie Baraban, also a gauze pad operator, worked about 15 feet diagonally from Jo Ann Brake. She was talking to another employee, Frank Zankl, when she looked up and saw defendant strike Lopez with a rod which he held in both of his hands. He then turned around and put the rod in a wastebasket behind Jo Ann Brake’s desk.

She further testified that People’s Exhibit No. 1 was the rod with which defendant struck Lopez, describing it as a “rod for holding cotton on the back of the machine.”

Frank Zankl, a material handler, was conversing with Anna Marie Baraban when Lopez, his supervisor, approached him to tell him about an upcoming meeting and then asked where defendant was. Lopez walked about 25 feet away to where the defendant was loading cotton into a bin, and began talking to him. Zankl testified that he could not hear their conversation until defendant said in a loud voice, “Get the f_away,” and Lopez, who had nothing in his hands, began to turn and walk away.

Zankl further stated that defendant then reached over to a machine which was located “a ways away” and grabbed a metal bar, or an object identical to People’s Exhibit No. 1, from its location on the number 45 machine and struck Lopez on the forehead above the left eye. He fell down and was “bleeding real bad and kicking * * * nervous kicking, moving his arms all over.”

Frank Zankl further testified that defendant had previously complained to Zankl about Lopez placing his hands on him and had also called for a meeting with the union steward regarding this same complaint.

All of these witnesses testified to the effect that defendant was a pleasant person to work with, that neither defendant nor Lopez had ever struck each other in the past, and that Lopez had never struck any employee.

The victim, Michael Lopez, testified that sometime after the 6 a.m. meeting where he had suspended defendant for tardiness, he went out onto the floor to tell Frank Zankl and defendant about an upcoming meeting, and as he approached, defendant was picking up waste but had nothing else in his hands. When Lopez told him that the meeting was for operators only, defendant responded with profane language. After a short conversation Lopez could recall nothing further until he regained consciousness in the hospital five days later. He testified that his memory was somewhat faulty due to his injury.

Dr. George Bryar, a neurological surgeon, testified for the State that X rays taken of Lopez’ head revealed a depressed skull fracture with in-driven bone fragments, requiring two operations and the insertion of an acrylic plate to correct the skull damage. He stated that a severe head injury is sometimes accompanied by a memory loss called retrograde amnesia whereby a patient cannot recall events prior to the time of an injury.

Lopez was later moved to Colorado for therapy and returned to work five months after the incident. He was still receiving outpatient therapy and had problems with speech at the time of trial.

Defendant testified on his own behalf that he had known Lopez for four months prior to the incident, and for most of that time Lopez would approach him daily from behind to startle him, touch him in an insulting manner and pat him on the buttocks “as if he were a woman.” When asked to stop these actions, Lopez would not respond verbally but would simply stand and smile.

At one point, defendant requested a meeting with the union steward and Lopez to complain about these actions; however, this behavior continued after this meeting and despite repeated objections to Lopez.

Defendant stated that he was not angry with Lopez for suspending him, and although he had attempted to leave the premises following his suspension to conform with company policy, Lopez ordered him to complete his shift. Shortly thereafter, when Lopez threatened to terminate him, pounding a 12-inch pipe in his hands, defendant asked him to keep his distance and walked away.

A short while later, defendant testified that he was picking up some gauze and a bar from machine 45 from off of the floor when Lopez approached him for the third time from the rear, and grabbed his arm. He testified that he lost control and struck him, being in a “sort of dazed” condition at the time. He subsequently telephoned the company nurse and Christ Hospital, and became aware of the extent of the injuries sustained by Lopez. Upon learning of a warrant out for his arrest, he surrendered himself to the police.

Following defendant’s conviction, the trial court heard and denied defense motions in arrest of judgment and for a new trial. The motion in arrest of judgment was based upon the insufficiency of the information upon which defendant was convicted.

Opinion

Defendant first contends that he was not proven guilty beyond a reasonable doubt.

Defendant argues that the State failed to establish the statutory elements of intent and lack of legal justification in the proof of the offense of battery presented at trial.

It is well settled that the requisite intent with which an act is done may be inferred from the act itself, as well as by the surrounding circumstances which legitimately permit such an inference. (People v. Jack son (1976), 42 Ill. App. 3d 322, 355 N.E.2d 653.) Although defendant testified that he was “sort of dazed” when he struck Lopez, the trial court, as trier of fact, was not required to accept his testimony. People v. Fender (1980), 91 Ill. App. 3d 844, 415 N.E.2d 22.

Since a person is presumed to intend the natural and probable consequences of his deliberate acts (People v. Hartzol (1976), 43 Ill. App. 3d 924, 357 N.E.2d 729), the jury in the present case was warranted in finding that defendant intended to hit Lopez with a metal bar, based on the evidence presented.

Defendant’s next contention that the State must establish a lack of legal justification is equally without merit. Although the defendant argued that he struck Lopez because he continuously touched him, he did not articulate a theory of self-defense in either his own testimony or in counsel’s arguments to the court or jury.

Since a defense of legal justification, such as self-defense, is an affirmative defense (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 14), an unfocused general reference to legal justification in the instructions would only serve to confuse the jurors when legal justification is not in issue. People v. Worsham (1975), 26 Ill. App. 3d 767, 326 N.E.2d 134.

Furthermore, a failure to suggest self-defense or some other defense of justification to the trier of fact constitutes a waiver of the issue. People v. Pulley (1973), 11 Ill. App. 3d 292, 296 N.E.2d 373, rev’d on other grounds (1974), 58 Ill. 2d 171, 317 N.E.2d 570.

. Defendant also claims that the metal bar was improperly admitted into evidence since the State had failed to establish a chain of possession. The Illinois rule is that a proper foundation of the admission of an item into evidence may be laid either (1) through its identification by a witness, or (2) through establishment of a chain of possession (People v. Pagliara (1977), 47 Ill. App. 3d 708, 365 N.E.2d 72), and it is not necessary to require both methods. People v. Hagen (1978), 63 Ill. App. 3d 944, 380 N.E.2d 954.

In the present case, three eyewitnesses positively identified the metal bar as the weapon. We find that a complete foundation was laid by the State for the introduction of this evidence and additional proof of a chain of possession was unnecessary.

Since a court of review may review all of the evidence to determine whether it shows the guilt of the defendant beyond a reasonable doubt (People v. Lewellen (1969), 43 Ill. 2d 74, 250 N.E.2d 651), we may not substitute our judgment for that of the trier of fact on questions involving the weight of the evidence and the credibility of witnesses. People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.

In the present case there was no evidence presented to support a finding that defendant acted in self-defense. There was ample evidence presented, however, including defendant’s own testimony, to support a finding of guilt beyond a reasonable doubt.

We turn now to defendant’s contention that count III is fatally defective because it failed to charge the necessary elements of the offense of aggravated battery as required by section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1979, ch. 38, par. Ill — 3(a).

The purpose of section 111 — 3(a) of the Criminal Code is to make certain that the accused will be adequately informed of the nature and elements of the offense charged against him so that he may be able to prepare his defense and protect himself from double jeopardy by subsequent prosecutions for the same offense. People v. Tucker (1973), 15 Ill. App. 3d 1003, 305 N.E.2d 676.

As the court in People v. Patrick (1967), 38 Ill. 2d 255, 258, 230 N.E.2d 843, 845, observed: “An indictment which charges an offense in the language of the statute is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.”

Count III of the information, on which defendant was convicted, charged that he “committed the offense of aggravated battery in that he, in committing a battery on Michael R. Lopez, by striking him on the head with a metal object, used a deadly weapon in violation of ch. 38, section 12 — 4(b)(1), Ill. Rev. Stat. 1979.”

Defendant argues that count III fails to allege that the underlying battery was committed: (1) “without legal justification,” (2) “intentionally or knowingly” and (3) “caused bodily harm or made physical contact of an insulting or provoking nature.”

The relevant statutes in pertinent part provides:

“§ 12 — 3. Battery (a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a).

“§ 12 — 4. Aggravated Battery

* * *

(b) A person who, in committing a battery, commits aggravated battery if he either:

(1) uses a deadly weapon;

* * *."

Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4.

With respect to defendant’s first contention we note that since the statute defining the underlying battery already contains all of the elements necessary to constitute this offense, including a lack of legal justification (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3), an indictment is not fatally defective if it fails to allege that the battery was “without legal justification.” People v. Harvey (1973), 53 Ill. 2d 585, 294 N.E.2d 269.

Similarly, while the information in issue did not explicitly allege that defendant acted intentionally or knowingly in the commission of a battery, use of the technical term “battery” implicitly fulfilled the required element that defendant acted knowingly. People v. Tucker (1973), 15 Ill. App. 3d 1003, 305 N.E.2d 676.

Citing as authority People v. Abrams (1971), 48 Ill. 2d 446, 271 N.E.2d 37, and relying principally upon People v. Lutz (1978), 73 Ill. 2d 204, 383 N.E.2d 171, defendant contends that because the information fails to charge either that the physical contact was of an insulting or provoking nature, or caused bodily harm, it was subject to dismissal. However, we are of the opinion that the facts of the instant case are clearly distinguishable from the Abrams and Lutz decisions.

A review of the facts involved in these two decisions is helpful in ascertaining the inappositeness of these cases as authority.

In Abrams, the offense stemmed from the defendant’s attempt to retrieve a cup containing an alcoholic beverage from a police officer’s hand, whereby, in her efforts to take it, she struck him several times. The defective complaint merely alleged that the defendant committed the offense of battery against the officer in that she “ ‘knowingly and intentionally and without legal justification made physical contact with complainant herein without the consent of said complainant.’ ” (Emphasis added.) 48 Ill. 2d 446, 460.

We agree, and defer, to the supreme court’s analysis that the emphasized language in the Abrams complaint was ambiguous, thereby violating the rule that the words alleging an offense must so far particularize the offense so that by their use alone an accused is informed with reasonable certainty of the precise offense with which he is charged. People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697.

Similarly, in Lutz, the indictment charged that the defendant: “committed the offense of AGGRAVATED BATTERY, in that he did knowingly and without legal justification in committing a battery on Dan Wilson use a deadly weapon, to wit: a firearm, * * (Emphasis added.) 73 Ill. 2d 204, 208.

Although the exact nature of the underlying offense in Lutz was not set forth in the body of the opinion, we agree with the supreme court’s determination that the complaint involved did not make sufficiently clear which one of the alternative methods of committing the offense was being alleged.

In contrast, the situation presented here is clearly distinguishable. Illinois courts have held that it is sufficient to allege an offense by specifically alleging all the facts which constitute the crime. People v. Abrams (1971), 48 Ill. 2d 446, 271 N.E.2d 37.

While neither the comparable language in Abrams (“made physical contact"), nor in Lutz (“use a deadly weapon, to wit: a firearm”), sets forth the facts constituting the crime, we find that this requirement is satisfied by the key language in the present case, which alleges commission of the offense of battery “by striking him on the head with a metal object, used a deadly weapon.”

Furthermore, as the court in People v. Bowman (1971), 132 Ill. App. 2d 744, 746, 270 N.E.2d 285, 287, wisely enunciated in its well-reasoned opinion: “It is not necessary that a complaint contain the precise language of the statute defining the offense if it describes the offense in language sufficiently explicit for the defendant to understand the nature and elements of the charge against him. [Citations.]” The complaints stated the offense alleged to have been committed, cited the criminal statute which the defendants were accused of violating, and charged that the statute was violated due to the defendants striking the complainant about the head and body. The variance between the language of the complaints and that of the statute is inconsequential. Striking the complainant “about the head and body,” described with specificity the “physical contact of an insulting or provoking nature” prohibited by the statute. The complaints informed the defendants with reasonable certainty of the charge against them and were sufficient to charge the offense of battery.

Applying the foregoing principles to the present case, the language which sets forth a “striking him on the head with a metal object,” in conjunction with “used a deadly weapon,” both in addition to citation to the applicable statute, “Ch. 38, section 12 — 4(b)(1),” clearly indicates the commission of a battery which has caused bodily harm to an individual.

Moreover, the defendant in the instant case was informed of the severity of Lopez’ injury in his conversations with the company nurse and the hospital spokesman, before he turned himself in to the police. In fair conscience, it can hardly be said that a question as to which alternative had been alleged would remain. Consequently, we are not persuaded by the defendant’s persistent argument that he was not apprised with reasonable certainty of the precise offense with which he was charged.

We note that Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)) provides: “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” We find that the variance in the information in the present case did not affect defendant’s substantial rights because the totality of the information apprised him of the charge against him.

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

Affirmed.

MEJDA and WILSON, JJ., concur.