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People v. White Brothers Equipment Co.





APPEAL from the Circuit Court of Williamson County; the Hon. WILLIAM A. LEWIS, Judge, presiding.


White Brothers Equipment Company, Inc. (White Brothers), was convicted after a bench trial in the Circuit Court of Williamson County of operating a motor vehicle under a fraudulent permit in violation of section 15-301(i) of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 15-301(i)). The corporation was fined $2,500 plus costs.

On September 10, 1974, an indictment was returned against Frank White, president of White Brothers, charging him with the offense of operating under a fraudulent permit. On August 23, 1976, informations were filed against the corporation charging it with forgery in violation of section 17-3(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 17-3(a)(1)) and operating under a fraudulent permit. Although defendant has not provided us with a copy of the information upon which it was convicted, we assume that it was sufficient to state the offense charged as no question has been raised as to the sufficiency of the information. The permit charge against Frank White and the forgery charge against White Brothers were dismissed the day of trial.

Chapter 15 of the Illinois Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 15-100 et seq.) is concerned with size, weight and load limitations of vehicles moved upon or across Illinois streets and highways. Section 15-301 provides a means whereby a special permit may be obtained authorizing the movement of a vehicle not in conformity with weight or size limitations of the Code. (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 15-301.) Subsection (i) of section 15-301 provides certain criminal penalties and sanctions for movements made under fraudulent permits.

Section 15-301(i) states:

"Whenever any vehicle is operated or movement made under a fraudulent permit the permit shall be void, and the person, firm, or corporation to whom such permit was granted, the driver of such vehicle in addition to the person who issued such permit and any accessory, shall be guilty of fraud and either one or all persons may be prosecuted for such violation. Any person, firm, or corporation committing such violation shall be guilty of a Class 4 felony and the Department shall not issue permits to the person, firm or corporation convicted of such violation for a period of one year after the date of conviction. Penalties for violations of this Section shall be in addition to any penalties imposed for violation of other Sections of this Act." Ill. Rev. Stat. 1975, ch. 95 1/2, par. 15-301(i).

At the preliminary hearing on September 1, 1976, the State's motions in limine to exclude any testimony that Frank White or any officer or agent of the corporation did not know that a fraudulent permit had been issued and any testimony regarding who prepared the permit in question were granted. Also granted was the State's motion to exclude any testimony as to who usually prepares such permits. These motions were granted on the trial court's finding that section 15-301(i) stated an absolute liability offense and consequently that the exercise of due diligence by the managerial agents of the corporation, as provided by section 5-4(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 5-4(b)), was not a defense. Defendant then withdrew its request for a jury trial.

Thereupon, defense counsel made an offer of proof that Frank White would have testified that on the date in question, December 4, 1973, and all times prior thereto, Harold Woolard, an employee of White Brothers, was solely responsible for obtaining these permits through application and payment of the prescribed fee and that Woolard was directed to do so in a lawful manner. Frank White would further have testified that White Brothers used as many as eight or 10 permits a day and that to the best of his knowledge, Woolard, acting through error, negligence, inadvertence, or wilfullness, provided the driver, Greg Goin, the permit upon which this charge is based. Additionally, Frank White would have testified that the corporation used due diligence to monitor the permits by random examination and that when White Brothers discovered that Woolard obtained this permit in a manner other than as directed and in an unauthorized manner, he was discharged.

At trial, on September 1, 1976, the State's first witness was Illinois State Patrolman George Edwards, who at the time of the incident was in charge of the truck scale on Interstate 57 south of Marion, Illinois. He testified that he stopped the White Brothers truck because he could see that it was carrying an over-wide load and thus should have had a permit. Upon inspecting the permit, he thought that it did not appear to be in proper form; so, he contacted the permit section of the Illinois Department of Transportation. The permit was signed "Gaylan Smith" and the initials "E.D." appeared below the signature.

Gaylan Smith, State permit engineer with the Illinois Department of Transportation, testified that he neither signed nor authorized another to sign his name to the permit which the White Brothers driver had given to Edwards. He stated that at the time the permit was issued, the only person working in his section with the initials "E.D." was Evelyn Dunlevy. Smith described in detail the respects in which the subject permit differed from those issued by the Department at that time. He then testified that the official Department records, copies of which were introduced into evidence, showed that a permit bearing the same number as that possessed by White Brothers' driver was issued to Morgan DriveAway.

Defense counsel objected to the admission into evidence of People's Exhibits 3 and 4, the certified copies of Illinois Department of Transportation records, and moved that the witness's testimony be stricken. Defense counsel stated that only at 4 p.m. the day before trial had defendant received the State's amended answer to defendant's discovery motion which stated that these records might be introduced. The court overruled these motions as untimely.

Defendant objected to allowing Evelyn Dunlevy to testify because her name was not listed on the State's initial answer to discovery but appeared only in the August 31, 1976, amended answer to the discovery in the other pending cases, dismissed before this trial, in which Frank White was the defendant. Finding that neither the defendant nor defense counsel could claim actual surprise inasmuch as the same attorney represented both White and White Brothers, the trial court overruled the motion.

Dunlevy, the method and procedure officer for the Department's permit office, testified that she neither signed the name "Gaylan Smith" upon the ...

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