{
  "id": 2613734,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Otha Charles Malone, Defendant-Appellant",
  "name_abbreviation": "People v. Malone",
  "decision_date": "1974-03-21",
  "docket_number": "No. 72-270",
  "first_page": "397",
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  "analysis": {
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  "last_updated": "2023-07-14T18:19:57.388760+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Otha Charles Malone, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nDefendant appeals from the order revoking his probation and imposing a sentence of not less than 11 or more than 16 years to the Illinois State Penitentiary. Defendant was indicted in December 1967 for aggravated incest and indecent liberties with a child, namely, his stepdaughter, Deborah. As a result of a plea bargain, and because his counsel stated, \u201cthere is a greater penalty on the indecent liberties,\u201d defendant pleaded guilty in January 1968 to aggravated incest. The record discloses that defendant\u2019s incestuous conduct with his step-daughter, as often as two or three times a week for 8 years, had begun when she was 5 years old.\nAt the urging of defendant\u2019s new pastor, Reverend Ervin Benz (defendant having found \u201creligion\u201d) and another clergyman, Reverend Paul Johannaber, the trial judge in April 1968 granted defendant\u2019s application for probation placing him under the supervision of the two ministers, as special probation officers, for 5 years. Some of the conditions of probation were that defendant could not communicate with his children, nor consume alcoholic liquors, nor have firearms in his possession. The children were removed from defendant\u2019s home and later were taken to live with defendant\u2019s parents in Mississippi. In March 1971, upon the recommendation of both special probation officers, the court granted defendant permission to move to Mississippi where his wife was dying of cancer. (She died there a month later.)\nOn October 4, 1971, the State\u2019s Attorney filed a petition to revoke d\u00e9fendant\u2019s probation alleging that, in violation of his probation, he molested his own 11-year-old daughter, Janet, was carrying a concealed weapon, and was drinking alcoholic liquors. Defendant was arrested in Mississippi, broke jail, and escaped to Florida, where he was later arrested and extradited from that state and returned to Kane County. Court-appointed counsel moved for substitution of judges which the court denied.\nAt the probation revocation hearing in February 1972, three witnesses testified: Mr. O. C. Mundwiler, Kane County Probation officer, Mr. Benny Gaines, probation and parole officer for Northern Mississippi, and Reverend Johannaber. Mr. Mundwiler testified that in September 1971 he received a letter from Reverend Benz recommending revocation of defendant\u2019s probation and enclosing a letter which Reverend Benz had received from defendant\u2019s step-daughter, Deborah. Deborah\u2019s letter stated among other things that defendant \u201cgoes to bed with Janet\u201d (his 11-year-old daughter). Mr. Mundwiler further testified that he forwarded this letter to Mr. Gaines with a request to investigate. Mr. Gaines testified, over objection as hearsay, (1) that the defendant\u2019s 70-year-old father stated to him that he found his granddaughter on occasion \u201cin bed\u201d with defendant, that defendant had \u201craped her\u201d and the defendant \u201ccarried a weapon\u201d; (2) that defendant\u2019s employer informed the witness that defendant was carrying a concealed weapon and that he was drinking and selling whiskey; (3) that the witness caused Janet to be examined by a physician, one Dr. Joseph Bruce, who prepared a medical report that was received in evidence over objection. In that report Dr. Bruce stated that Janet told him prior to examination about two occasions when defendant attempted sexual acts. Reverend Johannaber testified that defendant, after being returned to Kane County, admitted to him that he had \u201creturned to his old ways\u201d. Defendant objected to Reverend Johannaber s testimony on the basis of priest-penitent privilege which the witness did not invoke. Defendant neither took the stand himself at the hearing, nor called any witnesses in his behalf. At the conclusion of the hearing the order revoking defendant\u2019s probation and imposing sentence was entered by the trial court.\nOn appeal defendant contends: (1) that the violation of probation was not properly proved by the State, in other words, that defendant did not get a conscientious judicial determination according to accepted and well recognized procedural methods; (2) that arbitrary classification of father-daughter incest as aggravated incest violates defendant\u2019s constitutional rights of equal protection of tire law and to freedom from discrimination on the basis of sex; (3) that the trial court erred in denying defendant\u2019s motion for substitution of judge for cause, and (4) that defendant\u2019s sentence is excessive.\nHere the only proof adduced as to violation of probation was the testimony of Mr. Gaines. Defendant was entitled to a conscientious judicial determination according to accepted and well-recognized procedural methods on the question of whether or not he had violated probation. Mr. Gaines\u2019 testimony as to what defendant\u2019s father and employer told him concerning defendant\u2019s conduct or actions, and a medical report of Dr. Bruce stating what defendant\u2019s daughter told him at the time of the examination are hearsay. Mr. Gaines acknowledged that he had not personally witnessed any actions by the defendant which would constitute violation of his probation, and that his only knowledge is \u201cwhat somebody else told me.\u201d His testimony was, therefore, inadmissible and defendant\u2019s objection should have been sustained. Reverend Johannaber said merely that defendant admitted having \u201creturned to his old ways\u201d. Such testimony, without more, provides no proof that defendant violated his probation. Upon remand the State will have an opportunity to establish by a preponderance of the evidence under orderly, accepted and well recognized procedural methods whether defendant violated the conditions of his probation. People v. Crowell (1973), 53 Ill.2d 447, 451, 292 N.E.2d 721, 723; People v. Pier (1972), 51 Ill.2d 96, 100, 281 N.E.2d 289; People v. Hardnett (1971), 132 Ill.App.2d 843, 846, 270 N.E.2d 864, 865; People v, Collins (1973), 14 Ill.App.3d 446, 302 N.E.2d 709, 711.\nIn view of our holding on this point we need not consider the other questions raised in the briefs and in defendant\u2019s several motions which were taken with the case. We presume that those questions will receive due consideration from the trial court upon remand. Therefore, the judgment revoking defendant\u2019s probation and imposing sentence is reversed, and this case is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nT. MORAN, P. J., and GUILD, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE RECHENMACHER"
      }
    ],
    "attorneys": [
      "Ralph Ruebner, Deputy Defender, of Elgin (Richard Wilson, Assistant Appellate Defender, of counsel), for appellant.",
      "Gerry L. Dondanville, State\u2019s Attorney, of Geneva (Clarence Wittenstrom, Assistant State\u2019s Attorney, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Otha Charles Malone, Defendant-Appellant.\n(No. 72-270;\nSecond District\nMarch 21, 1974.\nRehearing petitions denied April 10 and April 24, 1974.\nRalph Ruebner, Deputy Defender, of Elgin (Richard Wilson, Assistant Appellate Defender, of counsel), for appellant.\nGerry L. Dondanville, State\u2019s Attorney, of Geneva (Clarence Wittenstrom, Assistant State\u2019s Attorney, of counsel), for the People."
  },
  "file_name": "0397-01",
  "first_page_order": 417,
  "last_page_order": 420
}