*1 (No. 50479. ILLINOIS,
THE OF THE OF PEOPLE STATE Appellant, ROBERTS, R. PEOPLE ARTHUR Appellee. — THE ILLINOIS, OF THE STATE OF Appellant, GRIZZLE, L. CHESTER Appellee.
Opinion Rehearing Feb. denied 1979. March filed 1979. *4 MORAN, dissenting part. part J., concurring General, of Scott, Springfield William Attorney J. Noel, A. and Steven Melbourne Jr., B. Mackay, (Donald General, of Assistant Attorneys counsel), Jay Teplinsky, for the People. Defender, the Office Wilson, Richard Deputy J. A. Defender, (Barbara Springfield
State Appellate Defenders, of Yuhas, Assistant D. Chasnoff and Daniel *5 6 for
counsel), appellees. MR. RYAN delivered the of the opinion JUSTICE court:
These consolidated cases the again present problem instructions we attempted-murder which considered in v. Ill. Harris recently People 72 2d (1978), 16, People Trinkle 198, 68 and 2d Muir (1977), here, 67 Ill. 86. Both defendants R. Arthur Roberts and Grizzle, Chester L. were at convicted trials of jury in murder violation of 8 — 4 section of the attempted 38, Criminal ch. Code of Rev. Stat. (Ill. The court consolidated these par. appellate 4). 8 — on direct from a appeals conviction appeal —Roberts’ court, entered the by circuit Grizzle’s on Logan County from a denial appeal under the petition Post-Conviction Act Stat. Rev. ch. Hearing (Ill. in the court. par. circuit County 122—1et seq.) Jersey court and reversed trial courts remanded appellate for trials, new the trial erred in their holding judges instructions. Both attempted-murder App. and the in our recent majority opinions concurring Harris case court’s of error in appellate support finding the instructions We leave to granted given. court. now reverse the The issue appeal appellate before us is a criminal defendant can whether raise on of a direct or on from the dismissal appeal petition appeal, for a error in post-conviction hearing, alleged jury when error was at trial objected and not in the motions. preserved post-trial
A found Arthur Roberts County Logan guilty trial, murder. witness, At his complaining driver, a truck that he testified had been on the driving interstate near Lincoln on highway night incident. had Late that his truck for night jockeyed for a considerable time with a highway position length Roberts, car driven a car in which Carla Rackers rode as a.m., About the truck came passenger. alongside driver’s side of the in an car pass. Suddenly attempt truck driver heard loud sound extremely crashing truck, door of his and the car then against passenger truck. accelerated from the Both the driver away rapidly of the car and his were seen be the car’s passenger front seat. Moments later at a truck stop, complaining witness found a in the bullet hole truck’s door large in line with his He called the State directly body. police. *6 thereafter, officers arrested patrol Roberts shortly found, his car searched and other a 357 among guns, trial, Colt revolver—a At the Magnum powerful handgun. the prosecution that bullet which truck proved the pierced door’s outer and dented the inner panel, severely panel, had been fired from that revolver. Roberts,
Defendant and his 17-year-old passenger, Rackers, Carla the also testified at trial. admitted Both gun car, was fired from the but both said Carla Rackers fired seat, from the rear where she a had been when nap taking she disturbed was the truck. had not She been charged with that State contended she handed the attempt. to Roberts and thus tried for was gun only conspiracy.
The court’s instructions the to the included on the of offense following mandatory murder: attempted attempt, the State must charge of
“To sustain the prove following propositions: the
First: performed That the defendant an act which step constituted a the substantial toward commission murder; crime so Second: with to That defendant did intent commit crime of murder.
If you your find from consideration all propositions evidence that these has proved each of been doubt, beyond you a reasonable then should find defendant guilty.
If, hand, you your on the other find from any of all that of these consideration evidence propositions beyond a proved has not been reasonable doubt, you guilty.” then should find the defendant
The court also instruction gave following murder: defining
“A person commits crime murder who kills if, in performing individual the acts which cause the death, he (1) great bodily intends kill or do harm to individual;
that or he acts create a (2) strong knows such bodily of death probability or harm to that great individual.” Harris,
As we held it was error give murder. Since murder a requires defining attempted murder, intent commit offense of which specific it is obvious that the offense necessarily involves killing, cannot as murder be construed incorporating definitions of in section alternative murder contained the Criminal Code of Rev. Stat. (Ill. (a) 9—1 ch. which state of mind par. incorporates (a)), 9—1 other than v. Harris an intent kill. (People Roberts did not of this giving did not issue his instruction and raise post-trial *7 motion. resulted in Grizzle’s
An incident of also shooting murder Jersey County. conviction of attempted at his trial that Grizzle had Witnesses testified experienced from deal trouble with a car recently a purchased great a witness. On the day shooting complaining men occurred between two heated conversation 10 to car. that shots were Late evening regarding house, of those fired into the witness’ many complaining wife, witness, his and his small shots narrowly missing house safer as around the child moved they seeking locations. in Grizzle’s case were given quite case,
similar to the instructions in Roberts’ given contained the error. trial same Grizzle’s also occurred before this court’s series of decisions. attempted-murder case, As in Roberts’ the defendant did not to the instructions at the trial and did not preserve objection in a direct motion. On from his post-trial appeal conviction, Grizzle did raise the not and his point conviction was affirmed. In a for a subsequent petition Grizzle’s counsel post-conviction did not hearing, again However, raise the issue and relief was denied. on appeal denial, from this new counsel for Grizzle raised the issue of instructions, and the court considered this appellate issue. On this we are not concerned with the appeal, correctness of the court’s action in so. See appellate doing 1977, Rev. Stat. ch. 122 — 3. par.
In this court Goerger (1972), was faced with issue similar to that raised in Grizzle’s In that case the defendant had appeal. objected of an instruction at trial and there had been no giving direct The error in the of the instruction appeal. was giving raised in a under the Post-Conviction petition Act. Hearing This court noted that the error was one that could have been raised on direct and that the defendant’s appeal failure to raise the issue on direct constituted a appeal Also, waiver. the court noted that the aof defective giving did not effect the substantial denial of constitutional under the Post-Conviction rights cognizable Act. This court also held in Hearing Johndrow 40 Ill. failure tendered give instruction did not a denial of a constitute constitutional or which would right present relief under question justify the Post-Conviction Act. Hearing error, that the trial or the
Merely error in the alleging instruction, of an constituted a constitutional giving violation does not elevate these errors to constitutional
10 status, under the Post- them for review qualifying We reserve for discussion Conviction Act. will Hearing to of whether the failure object below question the defendant’s to raise as instruction at trial waived right of the defective instruction. We error on review the giving issue in connection with Grizzle’s need not consider to raise the His failure post-conviction question petition. it in the on direct him from raising appeal prevents on direct The affirmance petition. appeal post-conviction res or that could as to all issues that were raised judicata v. Rose 43 Ill. have raised on been appeal. (People (1969), 402, 408; Ill. v. 273, 279; 34 2d People Ashley (1966), 2d Standards, Remedies sec. 6.1 and ABA Post-Conviction Also, 88-89 at giving Commentary, (1968).) the denial of a constitute did not defective under the Post-Conviction constitutional right cognizable Act. Hearing primary question waiver presents concept fundamental case. A concept
for resolution in Roberts’ at trial is that counsel must object system our adversary that counsel Thus, necessarily errors. we must recognize in later certain errors to raise “waive” may right to those errors failure at proceedings v. 393; Coles 74 Ill. People trial. People 2d (1979), 7, 16-17; v. Pickett Ill. Precup 73 People 2d (1978), Ill. Criminal 54 See (1973), 2d 280. Spritzer, generally, Waiver, Court, Procedural and the U. Burger 126 Default Pa. L. Rev. 473 (1978). failure to
Our cases hold that make at objection trial an error in instructions waives issue for 124, 130, v. Underwood 72 2d (People appeal. (1978), and cases cited therein involved the failure (Underwood v. Mallett define 45 “reasonably believes”); (1970), on evaluation (instruction confession); 36 Ill. on Lyons (instruction context, In this we observe that use justifiable force).) enforced has Court of Seventh Circuit Appeals rigidly Federal Rule rule, even under the broad *9 the waiver Rule corres standard. Procedure 52(b) Criminal 52(b) v. Cir. 615. States to our Rule United (7th ponds Jackson error self- in 1003 569 possible F.2d (waived 1978), v. States United Knippenberg (7th defense instruction); on to error failure 1056 Cir. 502 F.2d 1974), (waived Cir. v. United States Cantu 1972), define (7th “wilfully”); elements error 501 1019 regarding F.2d (waived offense). rule, in of stated many for as reason this waiver
The to cases, is that timely objections court our appellate to correct the the court instructions defective permit not and do are the instructions before given, defects to the to gain therefore permit party failing his own a reversal based upon of obtaining advantage v. Eaton failure to act. See Co. Asphalt (1976), Finfrock Tavern, 1020; Ill. 3d Dean v. Keith’s & Ralph’s 41 App. 970; Boone Ill. 9 Inc. 3d Baker App. 25 (1975), (1972), Ill. 3d 509. App. Rule
The waiver rule not absolute. Our (58 451(c) that instructions in R. which requires 2d 451(c)), as tendered, and settled in criminal cases be provided given 1977, Act Rev. 67 of the Civil Practice Stat. section (Ill. 110, ch. also par. 67), provides: by failure ut defects are not waived substantial “[B] justice if objections thereto the interests timely
make require.” the rule to substantial
Thus waiver does not apply defects the interests justice require. if has In this this court not broadly exception, applying its In interpreted Joyner (1972), provisions. to instruct on a an error failure regarding because, offense not waived as noted lesser included was the court: by was a case and it was
“This close factually find the for defendants possible jury guilty murder, self-defense, not reason of or by guilty Ill. 2d guilty manslaughter.” The court felt on that not instructing manslaughter to find defendants was option guilty manslaughter court also noted that open jury. defendants’ failure to tender appropriate was not as to the fundamental fairness their important trial as the be instruct requirement jury properly v. Cesarz ed. In 44 Ill. was convicted of murder and was sentenced to 90 No instruction was years prison. given advising the burden was on the State establish doubt. The court
defendants a reasonable beyond guilty on the noted it could refuse to consider question *10 the of the that the defendant waived giving ground it, his to tender but in of the instruction failure view by sentence, the the of seriousness of offense severity People court elected to consider claim. In 61, Ill. the defendant found 69 was 2d (1977), Jenkins murder. The tendered of guilty omitted an essential element which mandatory force, case, that had use of although justifiable tendered an issue. The mandatory been the element use of instruction which included justifiable court that force. This held two contradictory giving instructions, each to find the defend jury mandating ant or not on the based required guilty findings guilty not instruction, stated in each error that was constituted considered under our Rule waived and which could be. there are “such This court stated that where grave 451(c). as to affect that errors so very important consideration, for a relaxa Rule provides 451(c) justice, 61, In waiver tion 2d [the doctrine].” v. Underwood 130, 124, 72 2d (1978), this limited court noted exception “object 13 rule is to ensure that a defendant is not denied the waiver his to a fair and trial.” jury right impartial has also United States Court recently Supreme a reluctance to read waiver expressed exceptions rule context of in the instruc- broadly, particularly jury 145, tions. In Henderson v. 431 U.S. L. Kibbe Ed. court held that 97 S. Ct. it was reversible error when the element of causation was omitted from instructions in a trial for second murder. degree Mr. said: “It the rare case in an Stevens which Justice reversal a criminal instruction will improper justify conviction no has been made in the trial when objection 145, 154, 203, 212, court.” 431 Ed. U.S. L. S. Ct. 1736.
Section Standards, of the ABA Trial 4.6(c) By Jury (1968), provides part: party
“No permitted appeal should be to raise on failure give instruction unless he shall have tendered it, party and no permitted appeal should be to raise on of an he giving objected instruction unless thereto However, justice ***. if the require, interests so substantial defects or omissions should not be deemed waived failure to to or tender an instruction.” The committee to this section states that commentary the existence of the waiver rule the notwithstanding courts, courts, Federal and most State have taken the in criminal cases the trial has a position judge certain to ensure that essential instructions responsibility are given. instructions,
“Certain basic essential to a fair determina- *11 by jury proof, tion of the case of (e.g., burden of offense charged), elements be and given, must concept employed of waiver not be to reversal if will bar a defendant has in the been convicted absence these Standards, Jury, instructions.” Commen- By ABA Trial tary, at (1968). 116 concludes that the last commentary by stating
sentence in section is based our Rule 451. upon 4.6(c)
Thus, where is failure there a to to an instruction, rule, waiver is the and our provision which, Rule an constitutes under exception 451(c) court, decisions of this ais limited prior exception (People v. 124, Underwood Ill. to be used 2d (1978), 129-30), ” v. to correct errors 69 Ill. (People “grave (1977), Jenkins 61, or to be where the case is 2d close 66), applied and fairness fundamental that factually requires jury be instructed Joyner (People properly (1972), 2d 302, 307).
In to the rule as waiver it relates discussing exceptions to the court, failure to raise an issue in the trial this court v. Burson stated in 11 Ill. that 2d (1957), the rule “will not an accused of his operate deprive constitutional due The court also stated process.” rights as a matter it may, take notice of errors grace, the record which the accused deprived appearing upon substantial means a trial. enjoying impartial fair Pickett In 370-71.) 54 Ill. 280, 283, this court noted that error plain exception to the waiver rule will also be in criminal cases in applied evidence which the balanced. closely In Roberts’ case the instruction murder was defining erroneous when considered in the context of the crime of murder. The instruction was bad that it told commit crime of murder may person he kill, when has not the intent but also only when he has certain mental states other than intent kill. However, the inclusion of these other mental states in the nonmandatory definitional does not constitute cited, error” the cases which have “grave contemplated the limited rule applied waiver exception provision of our Rule In this case it is not “as 451(c). necessary matter of this limited to assure apply grace” exception trial, a substantial means of a fair enjoying *12 the in this is not balanced.” and evidence case “closely Also, does the this erroneous instruction giving tests, strict constitute a denial of due of law. These process and this court which are by previously applied recognized Standards, the ABA demonstrate that the by exception is the waiver rule limited is and serious applicable only errors which threaten the fairness fundamental severely the trial. defendant’s The error in the giving instruction in case the this does not fall within purview the limited as heretofore this exception recognized court. sense,
In a error in of an instruction every giving trial. of a to a fair For this impinges upon right party reason, when the instruction to and the error objected attention, called to the an court’s erroneous giving over will warrant the reversal aof objection However, conviction and the aof new trial. in the granting of such an absence the defects are waived unless objection are they “substantial” “interests of justice the court to in require” consider them. v. Nothing People Harris mandates different (1978), conclusion. in this court Harris discussed instruc Although tional error in context of Rule we 451(c), granted leave to in that case to resolve the appeal attempted- murder our from decisions in v. problem People resulting Trinkle, Muir and and not to deal with the People Harris, fact, of waiver. in at trial to the question objected instruction but failed to his raise question post-trial motion Ill. 2d 20).
Roberts’ raises final one Both Roberts appeal point. and the invite decide whether us to reckless conduct is a lesser included murder. offense We decline the invitation. have examined We carefully record in Roberts’ trial and find that neither nor Roberts evidence that would lead to a any presented of reckless is the conduct. It well-established rule finding be evidence to in this State that there must support 340 Ill. for an instruction. Cox request (People exists here. In addition to lack No such evidence evidence, asked that the trial Roberts’ we note judge cases on the there any counsel several times whether were when none were included-offense produced, point; have been cases on refused the instruction. No point judge *13 case, circumstances of this cited to us either. Under the we error occurred. feel that no are conclusion, these defendants
In we hold rule of waiver from barred by procedural-default defendant can the issue of instruction error. Neither raising Rule As of the exception. meet 451(c) requirements 7, 16, in Precup we People emphasized error, our Rule in the context of exceptions plain nature of a do in the waiver rule not operate general all for review errors clause affecting preserving saving or have been whether not they substantial brought rights in court. That observation attention of the trial to the error in to claimed with validity Precup applies equal barrier, the waiver in addition to instructions. Finally, of trial error such demonstrated has not Grizzle standards that constitutional require grant magnitude Act. under the Post-Conviction a new trial Hearing ing states: “Other court The complaints opinion appellate involved circum Roberts cited defendant of error by trial for in a to arise subsequent that are not likely stances them.” App. not discuss We need the same offense. nor have we been not state does The opinion However, are. it of error these other claims informed what there have may from quoted language appears court that were raised in the issues appellate been determined. Grizzle, the
Therefore, case of in the and the reversed court is appellate judgment is affirmed. County the circuit court Jersey judgment Roberts, of the case of defendant In the judgment reversed and the cause is remanded to court is appellate have of other issues that been that court for consideration that court in the cause from raised but not considered by was taken. which appeal reversed; court court circuit
Appellate cause Jersey County affirmed; in with remanded directions. part, MORAN, MR. in concurring JUSTICE Grizzle and v. Roberts: dissenting sua relies on the majority, sponte, rule procedural of waiver to reverse the court and reinstate appellate for defendant Roberts’ conviction murder. This was done rule despite well-established that an issue not raised in the court of review deemed waived. Nowhere in its brief, for leave to its or petition its appeal, brief reply does the State contend that Roberts waived error any his failure to instructions in giving question. Neither considers waiver to party be an issue here, reason, and with waiver, for the good question *14 the context of such murder, instructions on was attempted and argued this court in disposed v. People Harris Ill. 16. 72 (1978), 2d
Harris was the consolidation of cases two appealed by State, the defendants Harris and Shields. Each being involved murder and instruc- charges attempted jury tions similar to those involved in the instant trial, case. At Harris objected giving questioned jury instructions but the was overruled. He failed objection to raise the same in his Shields, motion. objection post-trial on the hand, other failed to of such giving instructions at both the trial his and The post-trial hearing. briefs in both case, cases here, disclosed that in Harris’ as the State did issue, not raise the waiver but did so in Shields’ both, case. In this court determined that
18 that the waiver errors so “substantial” instructional were on the merits. v. rule should not bar consideration People 16, Harris Ill. 72 2d 28. (1978), Harris on the The attempts majority distinguish leave in that case that “we to appeal granted ground result resolve the problem attempted-murder [Harris] v. Muir and from our decisions in People People ing of wavier.” Trinkle, with question not to deal and unfounded, for since reasons is This at statement Ill. 15.) 2d unrecorded. for leave to are appeal allowing petition rule in Harris evidences that we the waiver applied opinion on the elements of the offense of because the instructions that, in murder so defective were substantially attempted allowed to raise the the interests of defendant was justice, issue on To now defendant Roberts same deny appeal. his decided on the have case especially right merits— —to so, not us to do is only State has when urged on the defendant but casts doubt unfair patently the errors which recent to correct of our efforts sincerity in this area of criminal law. heretofore prevailed 68 Ill. v. Trinkle in both 2d At issue (1977), 16, Ill. were Harris 2d (1978), when the offense to be given jury proper Trinkle, In we held that a conviction murder. attempted cannot stand if the could was instructed it find murder “sans intent attempted specific guilty In to kill.” v. Trinkle 201.) (1977), (People Harris, both Harris and the convictions of we upset resolved, Shields, must “An instruction and affirmatively murder it clear that to convict for make nothing kill must shown.” less than a criminal intent to be (People The instructional v. Harris Trinkle, and Shields was defect in the cases of Harris case. The same as the defect in the present precisely instructions was of such improper prejudicial impact *15 and Harris. in Trinkle holding acknowledged offenses, criminal every absolute-Hability Other than states. Rev. Stat. mental one of four (Ill. offense requires Under sections 1973, 38, ch. 4 — 3 pars. through 4 — of 1961 of the Criminal Code and (a)(1) (a)(2) 9—1 9—1 38, 1973, and ch. pars. Rev. (a)(1) Stat. (Ill. 9—1 either of two of murder offense requires (a)(2)), 9—1 hand, other On the or mental states—intent knowledge. for the offense suffice one state will mental only 38, 1973, Also see ch. Ill. Rev. Stat. par. (a). attempt. 8—4 W. LaFave & Ill. Rev. Stat. ch. par. (b), 4—3 Scott, sec. at A. Criminal Law 428-29 (1972). case in the at bar As noted by jury majority, that, was instructed to convict defendant of attempted murder, defendant have acted must with intent to commit the crime of murder. The then was jury given foHowing murder: defining “A person commits crime of murder kills who if,
individual in performing the acts which cause the death, (1) he intends kill or great bodily do harm to individual; or
(2) he knows that such acts create a strong proba- bility of bodily death or great harm to that individual.” instruction, Under this could convict defend- jury ant of murder if it found that defendant attempted harm, intended to do knew that his acts bodily great death, created a or knew that his acts probability strong a created harm. strong probability bodily great (As noted, hereafter defendant was not in the charged verbiage Harris, Under Trinkle and (1) instruction.) instruction was erroneous that it permitted jury convict the that he had a mental upon finding state other than a intent to kill. specific
An indictment and make it must clear that intent is a kill specific prerequisite conviction for Mr. murder. Ryan’s Justice dissent in Harris commences “Considerable by stating, *16 in
amount of seems courts and uncertainty prevail of the as to what members bar language among or in murder permissible impermissible charging attempted at and in the on this offense.” instructing (72 I the the To the believe of body uncertainty, 29.) rectify at the indictment and necessary regarding murder should contain the tempted following:
INDICTMENT of______at the____day On about or within________ Illinois,________ County, MURDER, in offense committed the of ATTEMPT 4(a) of of 1961 violation of section the Criminal Code 8— 19__, section chapter Statutes (Illinois Revised did, the intent to commit 4(a)) 8— in that with [she] [he] of____[victim]_________ the of murder offense the commission of said step take a substantial toward offense, did, justifica- without in that lawful [he] [she] tion, ______________________________ kill_____[victim]_______ the with intent of of the Criminal Code 1(a)(1) violation of section 9— 19__, section (Illinois chapter Statutes Revised 9—1(a)(1)). MURDER INSTRUCTIONS FOR ATTEMPTED
JURY kills individual without lawful person A who if, perform- justification commits crime of murder death, ing he intends to kill that the acts which cause individual. if, attempted person of murder A commits crime murder, any he does of
with intent to commit crime step a toward act which constitutes substantial of the crime commission murder. have committed. attempted need not been
The crime murder, the State charge To sustain following prove propositions: must an act which performed First: That defendant the commission toward step constituted a substantial murder; and the crime of did so with the intent the defendant
Second: That kill_______[victim.]_________ If you find your from consideration all the evidence that each of these propositions has proved been beyond doubt, you a reasonable then should find the guilty. If, hand, on other you your find from considera- any tion of all evidence that propositions these has proved beyond doubt, not been a reasonable you then should find the defendant guilty. we need not
According “as matter majority, consider the defect, instructional sub grace” judice, assure the defendant fair trial. at The ma bases assertion on its conclusion that “the evi jority *17 ” dence in this case is not balanced.’ ‘closely at that, conclusion, Iam convinced the 14-15.) reaching considered whether the defendant committed the majority but intent acts failed to consider the was which aEeged, the of the instructional error. The should subject inquiry have the been directed to defendant’s mental state: Did a into truck fire shot the with adjacent specific to intent kill the driver? The facts to this pertinent leave considerable doubt as to whether certainly question defendant Roberts had the intent to kill. The specific action taken the this statement. by grand supports jury The indictment the presented jury grand charged with Roberts two counts of murder. Count I stated:
“*** defendant, the the the with intent commit offense 1(a)(1) of Murder in violation of Section 9— perform step Criminal Code of did a substantial did, toward offense in that he the commission that bodily with the intent to kill or do harm to great Bemie Larson, gun L. aimed a shoot at gun and said Bemie [«c] L. Larson ***.” stated, Count II
“*** defendant, with intent commit offense of Murder in violation of Section 1(a)(2) of 9— Code Criminal perform did step substantial he
toward the of that offense that aimed commission truck gun passenger compartment and fired a at the of a Larson, L. knowing that occupied driven Bernie such acts great or strong probability death created bodily harm to L. ***.” Bernie Larson I defendant with the intent to Count specific charged count, or harm. On this kill do bodily grand jury great returned a the defendant with no bill. Count II charged that his acts created a strong probability knowledge harm, this count a true bill death or and on bodily great returned under which the defendant was subsequently was Therefore, that the it concluded convicted. can be only cause that found a lack of probable specifically grand to kill. Roberts had acted intent with case, in this identical is no the error There doubt that Harris, the error in “substantial” —the determina- was This, with tion also reached in Harris. coupled grand I, one on me to but conclusion: count leads jury’s finding defendant Roberts’ interest of justice requires for a remanded new be reversed and cause conviction would, therefore, I affirm portion trial. reversed the conviction of court which appellate judgment Roberts.
(No. 50788. al., v. CONTI et B. STUART Appellants, ELIZABETH AND BANK NATIONAL NENTAL ILLINOIS al., et CHICAGO COMPANY OF Appellees. TRUST denied Opinion March 1979. Rehearing Jan. filed 1979.