*1 taken two different times do not establish testimony nor but of the witness destroy credibility perjury to the testimony. go weight People Lagios (1968), 298, People Clay (1963), of serial a list
Finally, numbers of the in the was used currency alleged purchase inadmissible While list have hearsay. been may hearsay evidence—introduced to the serial numbers prove recorded were in fact used in those of currency controlled in our purchase, opinion properly admitted Past Recollection Recorded exception rule. v. Harrison 384 Ill. hearsay (1943), Handbook on Cleary, Illinois Evidence ed. (2d sec. 17.32. of the circuit court are reversed and judgments
the cause remanded to the circuit court of Cook County for a new trial.
Reversed and remanded. WARD took no in the considera- part tion or decision of this case.
(No. 42035. ILLINOIS, THE PEOPLE OF THE STATE OF Appellee, COX, v. BOBBY RONALD Appellant.
Opinion November 3 1972.
RYAN, J., part. took dissenting.
UNDERWOOD, C.J., GOTTFRIED, Pro- Defender Illinois A. THEODORE Ottawa, for appellant. ject, General, SCOTT, of Spring- Attorney WILLIAM J. RICHARDSON, Attorney, field, E. and ROBERT IMMEL, Assistant of Ottawa (THOMAS J. YACKLEY, Assistant State’s General, and FRANK X. for the People. Attorney, counsel), GOLDENHERSH delivered of the court:
Petitioner, Cox, from the Ronald Bobby appeals of the circuit court of La Salle County denying relief in his sought
the Post-Conviction Act. ch. Ill.Rev.Stat. Hearing et 122 — 1 par. seq. The shows record that petitioner pleaded guilty information, two counts an both of which charged 1965, “Indecent Liberties with Child.” (Ill.Rev.Stat. In count the misconduct one charged 4(a).) 11 — an an act of intercourse and in the other (par. 4(a)(1)) 11 — act trial of deviate sexual conduct (par. 4(a)(2)). 11 — court, upon acceptance count, the sentences to run concurrent took are that then ly. facts years petitioner, age, of her into bathroom home where eight-year-old girl he an act and then an act of sexual intercourse contact. involving oral-genital either
Petitioner act would although child, constitute offense of indecent with a liberties acts, which occurred almost at the simultaneously, same with child, constituted one offense place performed two of the enumerated ways crime, statute and cannot constitute two defining crimes. He that since there one argues offense the two sentences was imposition error.
Petitioner admits this contention was neither *3 court, to nor presented considered the trial but argues court, this of Rule 615(a), should notice matter as error. In our plain prior to which in (as rehearing allowed), rejecting contention, said, we that on arguendo, “Assuming, from of conviction this appeal were ‘plain error,’ in this it does not the substantial proceeding present denial of constitutional to rights post-conviction requisite relief.”
In his for out rehearing petitioner pointed v. a 46 Ill.2d involved People Whittington, and we in note v. post-conviction proceeding, People Russo, a we 52 Ill.2d also post-conviction appeal, matter of concurrent sentences as treated the improper to of sufficient constitutional substance be cog being nizable in a In view of post-conviction proceeding. notice the here error.
decisions we matter as plain we have Although many times considered the matter sentences, in those questions here. cases differ from the presented significantly question which convictions are based The statute upon petitioner’s provided: a Indecent
“Sec. 11—4. Liberties with Child. years upwards (a) Any person age of the performs any following or acts who submits of 16 commits age with a child under a child: liberties with intercourse; Any or (1) act sexual conduct; Any or (2) act deviate sexual Any fondling of either the (3) touching lewd or person done submitted to
child or the satisfy or to with the intent arouse or the sexual desires of either the child person or both.” Ill.Rev.Stat.
par. 11 — 4. from stemmed The sentences imposed upon petitioner transaction, a two two counts based single in time and acts almost simultaneous involving victim, each of which acts was one proscribed situation, the statute. In contrast present hereafter enumerated the the cases although transaction, instances arose from a some involving victim, in others the same same property, act intercourse with Duszkewycz of more victim, were for violation the sentences imposed conduct Code and the than one section the Criminal v. one offense. People constituted more than charged for armed convictions 13 Ill.2d involved Schlenger, robbery larceny; Squires, grand 27 Ill.2d v. Duszkewycz, burglary larceny People incest; ex rel. Starks forcible Frye, rape in the same reckless homicides two *4 Scott, 135, a collision; v. 43 Ill.2d automobile People to commit unlawful with the intent entry single 463, crimes; 44 v. Ill.2d burglary Johnson, Stewart, 310, Ill.2d attempted v. 45 rape; People 46 v. battery; Whittington, robbery aggravated 105 405, 78, theft and Lerch, v. 52 Ill.2d escape; People Russo, attempted escape aggravated battery; People 425, attempted escape battery. aggravated cited, Counsel has not nor have we found reported decision a factual in situation identical to that involving this case. Some found, however, in Bell guidance States, 905, United 349 U.S. 99 L.Ed. 75 S.Ct. States,
and Castle v. United
368 U.S.
7 L.Ed.2d
S.Ct.
In Bell the
123.
to two
pleaded guilty
counts
violations of the Mann Act
sec.
U.S.C.
charging
(18
ato
different woman. The
referring
transpor-
tation
vehicle,
was effected
on the same trip.
The trial court
consecutive sentences and the
imposed
Court of
affirmed
Appeals
In Castle defendant was convicted on five counts indictment the unlawful of five transportation Circuit, orders. forged money The Court Fifth Appeals, Castle’s rejecting contention that since there was a single the district transportation court erred in imposing multiple sentences, Court, affirmed. F.2d (287 Supreme Bell, reversed citing that there was a ground and a offense. 368 transportation U.S. L.Ed.2d S.Ct. Prior to the enactment of the Criminal Code of the misconduct which now constitutes the offense of indecent liberties with a child was various proscribed by division I the Criminal Code (par. life; 490—statutory rape 141 — crime year —o ne nature — one against to 10 109 — crimes years; par. against children — one to Since the General has 20 years). Assembly seen fit to define an offense which may of three any without further ways definition of what
constitutes a or offense we find apposite States, “When the from Bell v. United following language has the will it has no difficulty expressing Congress will, is, of what desires it—when it has the that defining and, to to make the of more unit particularly, prosecution unit. When make each in a a criminal stick faggot to the task of leaves Judiciary imputing Congress will, the should be an undeclared ambiguity Congress , at of U.S. at 83 99 L.Ed. resolved favor lenity.” (349 a In our in the absence of statutory opinion, here constituted a the the conduct to contrary provision sentence should offense one imposed. the and the sentence of conviction judgment of indictment indecent liberties second count the are of sexual conduct with a in the deviate child nature vacated. accordingly due that he was
Petitioner contends next denied failure, law of the trial court’s of because process him his of to advise of right of his guilty, acceptance to It is noted that petitioner pleaded appeal. 1966. In on May People Covington, contention, this a 2d similar Ill. considering court 108, “On court said page June of a convicted all defendants a rule that adopted requiring Court to of their appeal, be advised felony right (Supreme 110A, ch. which Rule par. 605,) Ill.Rev.Stat. conviction. was thus in effect at the time defendant’s court the However, the allegation a not raise such advice did failed to give from Our rule stems of constitutional dimension. question constitutional rather than dictates practice good been command, has arisen it has where question to court to advise of the of a right held failure a is not denial of due protection. process equal appeal ” his failure to advise Clearly, [Citations.] entered of conviction from right appeal the rule raises no question prior adoption constitutional dimension.
Petitioner contends next that each of the two charges of indecent liberties in a with minor child was made information neither of which was by signed State’s He out that section Attorney. points 3(b) 111— Code Criminal Procedure (Ill.Rev.Stat. to be information 3(b)) requires signed Ill — him or another. He be sworn were null and void and argues *6 convictions and sentences based on these are also charges null and void. were filed
Originally charges against petitioner— liberties with a minor child in the nature of intercourse, sexual indecent liberties with minor child conduct, the nature of deviate sexual Each count rape. was on a form. At the of typed single-page, printed top I”, II”, was “Count “Count and “Count page typed III”, The labeled “Count III” contained respectively. page the and was the rape charge sworn only page signed the State’s by Attorney. was later nolle rape charge after defendant prossed entered pleas guilty of indecent liberties with a minor child. We are of the that the trial treated the three properly judge as three counts of a information pages and that the and verification the third signature count was a following the verification of three-count infor- signature mation.
Petitioner’s final contention is that his plea guilty was induced the defender’s that public representation he would be a sentence of 1 to 10 years, given time record shows that at the probation. on the the defend-
hearing
post-conviction petition,
public
er was deceased. Petitioner
that the trial court
erred in that in
the
were not
finding
guilty
defender,
induced
an unfulfilled
the
promise
public
the
evidence
on the issue. The
only
ignored
presented
had at the time
transcript
was
proceedings
shows
the recommended
II,
sentences
I
10-to-20-year
on count
and count
the
defender
run
concurrently,
public
sentences to
of the sentences
that the minimum
recommended
if he wished
The court then asked
years.
“No,
he
sir.”
replied,
present anything
who heard
post-conviction
The circuit
judge
(cid:127)
in his
concluded
petitioner’s acquiescence
sentence
minimum
recommendation of 5-year
attorney’s
made two years
assertion
militated against
present
later,
had died. He found
and after
attorney
induced,
and since
not
plea
improperly
manifest weight
not contrary
finding
it.
evidence,
will
disturb
Harper,
this court
not
Except II, court of La tence on of the circuit count relief is Salle County denying petitioner post-conviction affirmed. and vacated part part.
Affirmed in the considera- RYAN took part or decision of case. tion UNDERWOOD, dissenting:
MR. CHIEF JUSTICE *7 The concurrent- I would affirm both judgments. court and in the trial was never raised sentences question 1971, ch. here. Stat. not Rev. to be considered (Ill. ought 213, Ill.2d 3; 38 38, v. Clements (1967), par. 122 — if 216; 41 But 528.) Eldredge (1969), is, in considered, my judgment, it is to majority committed. one offense concluding wrong the con- his argument against Defendant predicates inter- the sexual his assertion that sentences on current were “one act”. Since activity course and oral-genital we have to these charges defendant pleaded guilty time interval of elapsing describing testimony precisely however, clear, the acts. It seems between the other from one to (if immediately did not proceed 109 fact acts were makes any difference), constitute, my distinct. They in time separate sen for which offenses judgment, v. Morgan are a tences permissible punishment. (Ebeling 35 S. Ct. L. Ed. 237 U.S. (1915), L. U.S. v. United States Blockburger (1932), from both As is 52 S. Ct. apparent Ed. ( Rev. Stat. 11—4 of section history
language Ill. has our proscribed legislature 11 — of conduct. children, a course not acts (No. 42190 . ILLINOIS,
THE PEOPLE OF THE STATE OF Appellee, BROUHARD, DEAN ROBERT Appellant. Opinion November