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People v. Carroll

SEPTEMBER 26, 1966.




Appeal from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding. Judgment adverse to defendant affirmed as modified.



Defendant, Edward Carroll, appeals from the order of the Circuit Court of Macon County, wherein the court revoked his probation, and imposed sentence of not less than one, nor more than five years in the penitentiary.

On February 11, 1963, defendant, then 19 years of age, pleaded guilty to the charge of theft from the person (c 38, § 16-1, Ill Rev Stats 1961). On March 1, 1963, defendant was admitted to probation for a period of three years. The order, inter alia, provided that defendant was to serve six months in the Illinois State Farm, and upon his release, was to be at his place of residence between 11:00 p.m. and sunrise, was not to associate with anyone having a known criminal record, use intoxicating liquors, or drive a motor vehicle without permission of the probation officer. On January 24, 1964, the probation officer granted defendant permission to drive an automobile in connection with his employment, and specifically informed him that he was not permitted "to drive a car for pleasure purposes."

On November 15, 1965, the probation officer for the Circuit Court of Macon County filed a "Report of Violation of Probation" in which it is charged that defendant violated the terms and conditions of his probation in that on September 13, 1965, he was in illegal possession of liquor in the car he was driving, *fn1 was outside his residence after 11:00 p.m., drove a motor vehicle for pleasure purposes, and associated with one Joe Burcham, formerly on probation, after his having been convicted along with defendant, of the offense of theft from the person.

A warrant was issued for defendant's arrest, he appeared, was admitted to bail, and the matter was set for hearing on November 30, 1965. The evidence shows that defendant was in his automobile on September 13, 1965, in the company of Joe Burcham and two other men, that there was beer in the car, and that defendant was out later than 11:00 p.m. The testimony as to who was driving the car when it was involved in an accident is in conflict, but it is admitted that defendant drove it at least the distance required to remove it from the bridge on which the accident occurred.

Defendant contends that the evidence does not sustain the trial court's findings that he violated the terms of his probation. A violation of the terms and conditions of probation must be proved by a preponderance of the evidence. People v. Madden, 56 Ill. App.2d 196, 205 N.E.2d 653. The People v. Bolger, 359 Ill. 58, 194 N.E. 225, in reviewing a case in which The People were required to prove guilt beyond a reasonable doubt, the Supreme Court, at page 68 said: "The trial judge who heard the case saw and heard the witnesses testify. He had the opportunity to observe their conduct and demeanor while testifying and was in a better position to weigh their testimony than is a reviewing court. The law has committed to the jury, or to the trial court where a cause is tried by the court, the determination of the credibility of the witnesses and of the weight to be accorded to their testimony, and where the evidence is merely conflicting this court will not substitute its judgment for that of the jury or the trial court." Applying this rule to this case, in which The People bore a lesser burden, we cannot say that the evidence did not prove the violations charged by a preponderance of the evidence.

Defendant contends that the circuit court abused its discretion in revoking probation. The circuit court is authorized to impose reasonable conditions (c 38, § 117-3, Ill Rev Stats 1965) of probation and a revocation based on a finding that defendant had violated four of the conditions fixed by the court, was not an abuse of discretion.

Defendant contends that the sentence imposed is too severe and urges that this court should order it reduced as authorized by the provisions of ch 38, § 121-9(b) (4), Ill Rev Stats 1965.

The determination of the proper penalty to impose upon a convicted offender presents one of the most difficult problems with which the trial bench is confronted. The ideal sentence is one which adequately punishes the offender for his misconduct, safeguards the public from further offenses, and reforms and rehabilitates the offender into a useful member of society. To the end that the trial court be possessed of pertinent information regarding the defendant, the General Assembly enacted ch 38 § 1-7(g), Ill Rev Stats 1965, which provides for a presentence hearing in mitigation and aggravation. Rule 461 of the Tentative Final Draft of Illinois Supreme Court Rules provides, "In all cases in which the defendant may be sentenced to the penitentiary, the trial court is required to hold a hearing in mitigation and aggravation in accordance with the provisions of section 1-7(g) of the Criminal Code of 1961. The trial judge shall advise the defendant of his right to present evidence in mitigation. A stenographic transcript of the judge's advice to the defendant and the defendant's answers, if any, shall be filed and shall be a part of the common law record."

Judges, trial and appellate, are subject to human failings, and many proposals have been made to insure, to the extent possible, that criminal sentences be determined and imposed dispassionately and objectively, after a review of, and reflection upon, the maximum amount of information regarding the defendant. It has been suggested that a panel of judges, who did not participate in the preconviction proceedings, review the record and determine the sentence. It has been recommended that a reasonable period of time elapse between conviction and sentence, in order that the trial judge, in imposing punishment, might not be influenced by some evidence or occurrence which to him, may have been unpleasant or revolting.

The order for probation imposed a number of restrictions on defendant's conduct and required him to report to the probation officer once every two weeks. There is no evidence of any violation for a period of two and one-half years and the four violations from which the revocation arises occurred in one evening. The transcript of the evidence taken at the hearing shows that the trial judge was understandably irate because of the obvious falsity of the testimony of Joe Burcham, one of defendant's witnesses. The testimony of the probation officer is based upon his conversations with the other occupants of defendant's automobile and does not show any admissions or misrepresentations made by the defendant.

The only evidence that defendant drove the car, other than to back it off the bridge where the mishap occurred, is the testimony of a deputy sheriff who testified that defendant told him he was driving at the time. The only evidence to the effect that defendant drank beer is the testimony of the same deputy, who testified that he smelled beer on defendant's breath.

In summing up the evidence, prior to announcing his decision, the trial court said, "I am not about to make a finding that the deputy sheriff who was straightforward and told his version of what happened was lying on the witness stand as against Mr. Burcham was telling the truth. One of them was lying. As a trier of the fact there is no question in my mind whatsoever who the liar is. Mr. Burcham has revealed on the witness stand he was a liar. He admitted he lied to Mr. Hoendorf. I don't think he did at that time. He did today under oath. He also tried to lie to the Court on the witness stand about his conviction. Mr. Burcham, in anybody's language, is a liar. I recall the 1st day of ...

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