Appeal from the Second Judicial Circuit of Hamilton County;
the Hon. RANDALL S. QUINDRY, Judge, presiding. The order of the
Circuit Court of Hamilton County is affirmed.
EBERSPACHER, P.J. This is an appeal taken pursuant to Chapter 38, Section 121-9(b)(4), Ill Rev Stats 1963, which permits a reviewing court to reduce punishment imposed by a trial court.
The record discloses that appellant was indicted by the grand jury of Hamilton County for the crimes of rape and taking indecent liberties with a fifteen-year-old girl. He plead not guilty, and waived a trial by jury. At the conclusion of the trial, the court adjudged him guilty of the crime of taking indecent liberties, and sentenced him to the penitentiary. The record did not disclose that following the judgment of guilty, there was a hearing in the trial court in aggravation or mitigation. This court affirmed the judgment of guilty, but remanded the cause with directions to the trial court to "hear and receive evidence as to defendant's moral character, life, family, occupation and criminal record, and thereupon impose punishment not inconsistent with this opinion." (People v. Evrard, 55 Ill. App.2d 270, 204 N.E.2d 777).
Upon reinstatement of the cause in the circuit court and at the inception of the hearing the trial court stated: "Let the record show this cause comes on for hearing pursuant to the notice, for the sole purpose of presenting evidence in mitigation and aggravation, and to determine the proper sentence for this defendant." The court then inquired of counsel for defendant if that was his understanding, and being assured that it was, counsel for defendant called the defendant as a witness in his own behalf and he was examined by his counsel and cross-examined by the State's Attorney.
The defendant testified that at the time of the hearing, on April 8, 1965, he was 31 years of age; that he had attended high school for three years, dropping out when he was 16 years of age, and for two years thereafter he worked at Pontiac, Michigan, married and entered the military service. He received an honorable discharge from the Army in 1955, and was thereafter divorced, and his wife was granted the custody of their two children. Subsequently the defendant remarried, and at the time of the hearing was living with and supporting his wife and two children by this marriage, and was also contributing to the support of his children by the previous marriage. Appellant further testified that he had worked for various construction companies and at the time of the hearing was employed by the Freeman Coal Company at Logan, Illinois, and had been for about two years, and that his weekly wage was between $120 and $135 per week. He further testified that in 1962 he was in a tavern where the barmaid shot his brother, and in connection with this affair, he was convicted of disorderly conduct and fined $32. He concluded his testimony by stating that he was devoted to his family, and was deeply sorry and ashamed of the offense for which he was convicted, and if the court would consider a different sentence, he would abide by whatever conditions were imposed.
The wife of the defendant was then called as a witness, and she testified that her husband did not indulge in the use of intoxicating liquor and corroborated the testimony of her husband in that he was steadily employed and supported his family. The defendant and his wife were the only witnesses called by appellant. The Chief of Police of the City of Marion and the radio operator for the Sheriff of Williamson County were called by the State's Attorney, but the evidence of these officers shed little, if any, light on the moral character, life, family, occupation or criminal record of the defendant.
At the conclusion of this hearing, which was before the same judge who heard the case originally, the trial court recounted some of the facts and stated that he was unable to conceive of a defendant who was guilty of such a "serious and vicious crime" having the "audacity of coming in and asking the court to place him on probation." The court then stated that he should take into account the previous good record of the defendant, and under all the circumstances he would grant the application for probation, and entered an order admitting the defendant to probation for a period of five years.
One of the conditions of the probation order was that defendant should spend the first six months of his probation at the Illinois State Farm. This provision of the order was not acceptable to the defendant, and his counsel stated to the court that the purpose of punishment is to rehabilitate the defendant; that "if the defendant goes to Vandalia for six months, that degree of punishment would not be appropriate to defendant's rehabilitation," and requested the court to reconsider the imposition of this condition. The trial court refused and this appeal followed, which seeks only a reversal of that portion of the probation order which directed that defendant spend the first six months of his probation at the Illinois State Farm.
Upon oral argument in this court, counsel for appellant, in answer to a question by the court, stated that the defendant did not complain of any of the conditions embraced in the order admitting defendant to probation except that portion which directed that he spend the first six months of his probation at the Illinois State Farm.
It is suggested by counsel for appellee that the sentence originally imposed by the trial court which committed defendant to the Illinois State Penitentiary for an indeterminate sentence and fixed the maximum duration of his imprisonment at three years, and the minimum duration of his imprisonment at one year, has not been reversed, vacated or set aside, and that it is therefore in full force and effect. Upon our former review of the record in this case, the judgment of guilty of the offense charged was not reversed but was affirmed. The cause, however, was remanded to the trial court with directions to that court to "hear and receive evidence as to defendant's moral character, life, family, occupation and criminal record, and thereupon to impose punishment not inconsistent with this opinion." The effect of this was to vacate the sentence imposed and the trial court, the defendant and his counsel, and the State's Attorney correctly so construed our holding and proceeded accordingly. There is no merit in this contention of counsel for appellee.
The Code of Criminal Procedure, effective January 1, 1964, repealed the provisions of the former Act and provided that any person found guilty of any offense, except a capital offense, the sale of narcotics or rape, may be admitted to probation, and authorized the admission of this defendant to probation if it appeared to the trial court that: (1) The defendant was not likely to commit another offense; (2) the public interest did not require that the defendant receive the penalty provided by law; and (3) the rehabilitation of the defendant does not require that he receive the penalty provided for the offense. The Code further provides that the term of probation shall be not less than six months, and not to exceed five years, and that the party admitted to probation shall remain subject to the jurisdiction of the court. (Ill Rev Stats 1963, c 38, § 117-1.) It enumerated the mandatory and discretionary conditions of probation. The first discretionary one provides for imprisonment in a place of confinement other than a penitentiary for a period not to exceed one year, and in no event to exceed the maximum penalty provided for the offense. (Ill Rev Stats 1963, c 38, § 117-2.)
In his brief and argument filed in this court, counsel for appellant says that upon this hearing the trial court was piqued and irritated because the court had remanded the cause for sentence. Counsel argue that the trial court, in committing defendant to the Illinois State Farm as one of the conditions of his probation, disregarded the manifest intention of this court, and insists that incarceration of defendant is too severe and would cause defendant to lose his employment and earnings and visit extreme hardship on his wife and children, and calls to our attention the language used in our former opinion, where we said: "A careful review of defendant's testimony indicates remorse and contrition, and the record reflects a statement by the court to the effect that the crime was unfortunate, but not wilful or premeditated. If this defendant is of prior good record, it may well be that probation would be adequate punishment and would best effect his rehabilitation. Sections 117-1 and 117-2 (Ill Rev Stats 1963, c 38, §§ 117-1, 117-2) provide for probation in proper cases, and the basic rules of conduct to which a probationer must conform. Unless this defendant is incorrigible or has recidivistic tendencies not demonstrated in the record, a carefully supervised period of probation is more likely to result in rehabilitation than is a term in the penitentiary." (People v. Evrard, 55 Ill. App.2d 270-276, 204 N.E.2d 777.)
In support of this argument and appellant's contention, counsel cites Yates v. United States, 356 U.S. 363, 2 L Ed2d 837; United States v. Wiley, 267 F.2d 453; United States v. Wiley, 278 F.2d 500; and United States v. Wiley, 184 F. Supp. 679.
In the Yates case, supra, it appeared that the defendant was convicted of contempt of court for refusing to answer eleven questions relating to whether persons, other than herself, were members of the Communist Party. The United States District Court imposed eleven concurrent sentences, which the Ninth Circuit Court of Appeals affirmed. The Supreme Court of the United States stated that the finding of a separate contempt for refusal to answer each question constituted an improper multiplication of contempts, and held that only one contempt was committed, affirmed the conviction as to one specification, and remanded the cause for resentencing.
In United States v. Wiley, 267 F.2d 453, the trial court refused probation and imposed a three-year sentence on the defendant. The Circuit Court of Appeals held, that in entertaining an application for probation, a District Court could consider the fact that the defendant had entered a not guilty plea when he had only a frivolous defense, but that the trial court could not deny probation solely because the defendant had elected not to enter a guilty plea. The Appeals Court affirmed the judgment of guilty, but remanded the cause to the District Court for consideration of ...