{ "id": 2499658, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Stuart Cole, a/k/a Stuart Kol, Defendant-Appellant", "name_abbreviation": "People v. Cole", "decision_date": "1975-06-12", "docket_number": "No. 11111", "first_page": "369", "last_page": "381", "citations": [ { "type": "official", "cite": "29 Ill. App. 3d 369" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "281 N.E.2d 682", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "51 Ill.2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391748 ], "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0271-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 5, "pin_cites": [ { "page": "24" }, { "page": "710-11" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "204 N.E.2d 741", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "743" } ], "opinion_index": 0 }, { "cite": "32 Ill.2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2838755 ], "weight": 2, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0253-01" ] }, { "cite": "220 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "35 Ill.2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378640 ], "weight": 2, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0189-01" ] }, { "cite": "197 N.E.2d 436", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "30 Ill.2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826177 ], "weight": 2, "pin_cites": [ { "page": "367-368" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0359-01" ] }, { "cite": "116 Ill.App.2d 427", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1587094 ], "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/116/0427-01" ] }, { "cite": "166 N.E.2d 80", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "84" } ], "opinion_index": 0 }, { "cite": "19 Ill.2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2742008 ], "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0050-01" ] }, { "cite": "220 N.E.2d 469", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "35 Ill.2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378493 ], "weight": 2, "pin_cites": [ { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0263-01" ] }, { "cite": "252 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "553-54" } ], "opinion_index": 0 }, { "cite": "185 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill.2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5356990 ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0085-01" ] }, { "cite": "108 N.E.2d 596", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "413 Ill. 218", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314188 ], "opinion_index": 0, "case_paths": [ "/ill/413/0218-01" ] }, { "cite": "24 Ill.2d 403", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2802499 ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0403-01" ] }, { "cite": "190 N.E.2d 837", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill.2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363320 ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0065-01" ] }, { "cite": "242 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill.2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853338 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0267-01" ] }, { "cite": "190 N.E.2d 802", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill.2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5364854 ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0100-01" ] }, { "cite": "5 A.2d 705", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "pin_cites": [ { "page": "707" } ], "opinion_index": 0 }, { "cite": "125 Conn. 321", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 1583057 ], "weight": 2, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/conn/125/0321-01" ] }, { "cite": "145 U.S. 285", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3562259 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/145/0285-01" ] }, { "cite": "174 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "806" }, { "page": "807" } ], "opinion_index": 0 }, { "cite": "22 Ill.2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2788568 ], "weight": 2, "pin_cites": [ { "page": "180" }, { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0175-01" ] }, { "cite": "12 Ill.2d 356", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2778490 ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0356-01" ] }, { "cite": "190 N.E.2d 738", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "741" }, { "page": "741" } ], "opinion_index": 0 }, { "cite": "28 Ill.2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363269 ], "weight": 3, "pin_cites": [ { "page": "120-21" }, { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0116-01" ] }, { "cite": "292 N.E.2d 387", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "53 Ill.2d 485", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927114 ], "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0485-01" ] }, { "cite": "11 N.E.2d 965", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "969" } ], "opinion_index": 0 }, { "cite": "367 Ill. 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2577249 ], "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/ill/367/0481-01" ] }, { "cite": "221 N.E.2d 276", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "278" } ], "opinion_index": 0 }, { "cite": "35 Ill.2d 578", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379716 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0578-01" ] }, { "cite": "298 N.E.2d 705", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill.2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2932686 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0401-01" ] }, { "cite": "271 N.E.2d 385", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill.App.2d 1041", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2530993 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/1041-01" ] }, { "cite": "113 A.L.R. 268", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1938, "opinion_index": 1 }, { "cite": "300 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "13 Ill.App.3d 296", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344394 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/13/0296-01" ] } ], "analysis": { "cardinality": 1096, "char_count": 27212, "ocr_confidence": 0.733, "pagerank": { "raw": 1.9916428075822883e-07, "percentile": 0.741842864197874 }, "sha256": "f1dcbc0552f297ad476784fb7e186de73402e89bfe88648a7f5890cbe6cb3a89", "simhash": "1:da1673307727ede4", "word_count": 4502 }, "last_updated": "2023-07-14T17:27:57.823802+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Stuart Cole, a/k/a Stuart Kol, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE SCHOLZ\ndelivered the opinion of the court:\nUpon an original appeal in this case, this court reversed and remanded this case for a new trial. (People v. Cole, 132 Ill.App.2d 1041, 271 N.E.2d 385.) The Illinois Supreme Court granted leave to appeal, reversed the judgment of this court, and remanded the case to us for consideration of' issues not disposed of on the original appeal. (See People v. Cole, 54 Ill.2d 401, 298 N.E.2d 705.) The issues for our consideration now are: (1) Were there irregularities in the jury selection that violated the defendant\u2019s constitutional rights; (2) was the defendant\u2019s right to cross-examine witnesses and develop a defense improperly restricted; (3) was the defendant\u2019s right to cross-examination and confrontation violated by rulings of the trial court; (4) was prejudicial error committed by the trial court in its rulings on the admissibility of evidence because of the failure of the State to establish continuity of possession or chain of custody; and (5) were improper instructions given or proper instructions not given but submitted which resulted in prejudice to the defendant.\nUnder the mandate of the supreme court, we are without authority to consider the contention now made with reference to the granting of the petition for leave to appeal. Thus, we turn to a consideration of the issues properly before us.\nThe appellant sets forth numerous irregularities in regard to the jury selection. There is no showing that any of these irregularities resulted in prejudice to the appellant.\nIn People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276, the supreme court in reviewing this question, said:\n\u201cThe parties are agreed that the provisions of the Jury Commissioners Act have been held to be directory \u2014 not mandatory, so far as they relate to the selection of grand jurors, (citation) and the concluding section of the act itself provides that no objection shall be allowed because of any failure to comply with the act or rules promulgated pursuant thereto, \u2018unless the party urging the same shall show to the court that actual and substantial injustice has resulted or will result to him, because of the error or defect charged.\u2019 (Ill. Rev. Stat. 1963, ch. 78, par. 35.) In People v. Mack, 367 Ill. 481, 488, 11 N.E.2d 965, 969, however, this court held that: \u2018The rule that mere irregularities in the selection of a jury will not constitute reversible error is applicable only where there has been an attempt to follow the law and there has been some irregularity in doing so.\u2019, and that: \u2018When the substantial parts of provisions for the selection of jurors are violated such violations are those of subtance and not merely of form amounting only to irregularities.\u2019\u201d 35 Il1.2d 578, 581, 221 N.E.2d 276, 278.\nThere is nothing in the record that indicates that the rules adopted by the circuit provided for period jury lists. Absent such a rule, there is no foundation of substance that there have been irregularities.\nThe third question involves the cross-examination of the witness, Pickett, and the direct examination of the witness, Siragusa. Defense counsel attempted to elicit as responses from Pickett information which was completely unrelated to the direct testimony of that witness. \"The scope of cross-examination is a matter resting within the sound discretion of the trial court, and its ruling will not be disturbed in the absence of any showing of abuse of discretion.\u201d People ex rel. Walker v. Pate, 53 Ill.2d 485, 502, 292 N.E.2d 387, 397.\nIn regard to the direct evidence of Mr. Siragusa, an evidentiary hearing was held in chambers outside the presence of the jury. That examination determined no other evidence to be offered by the defense except the testimony of Mr. Siragusa. This evidence would have required the jury to speculate or conject and was clearly irrelevant. The trial judge properly ruled in regard to the direct evidence. In regard to the evidence on cross-examination, we find no clear abuse of discretion.\nThe fourth issue presents greater difficulty in resolution and the briefs submitted are not particularly helpful. In People v. Carpenter, 28 Ill.2d 116, 190 N.E.2d 738, the supreme court in an opinion by Mr. Justice Underwood, makes an extensive examination of the hearsay rule and says:\n\u201cThe only basis assigned by counsel in his objection to this testimony on the trial was that the conversation occurred \u2018outside the presence of defendant\u2019. Seemingly, this type of objection, frequently appearing in the trial records before this court, arises from a misconception of the rules of evidence, and a belief that any statement or conversation occurring in the absence of the defendant is inadmissible. Such is not the law.\nWhile we are not clear as to the origin of this notion, it apparently is connected in some way with the hearsay rule. An examination of the basis for this rule will clarify the situation. \u2018Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted herein, and thus resting for its value upon the credibility of the out-of-court asserter.\u2019 (McCormick, Law of Evidence, sec. 225; see also, Cleary, Handbook of Illinois Evidence, sec. 31.1 et seq.) The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered. While the administration of an oath and the right of confrontation are also spoken of as necessary elements, the essential feature, without which testimonial offerings must be rejected, is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the act asserted. (Wigmore on Evidence, 3rd ed. sec. 1361, et seq.; People v. Smuk, 12 Ill.2d 356.) If this requirement is met, with the exception of instances such as those where the silence of the defendant is claimed to constitute an implied admission, the presence or absence of the defendant is immaterial.\u201d 28 Ill.2d 116, 120-21, 190 N.E.2d 738, 741.\nIn the instant case, if the testimony of Hurrelbrink and his daughter was offered to merely prove that the statement was made, it is not hearsay. If, however, it was offered to prove that Homstein intended to go to the block house or did in fact go there, it was hearsay and in order to be admissible must come within one of the exceptions to the hearsay rule.\nThe fact that the statement was made has no relevancy nor probative value. Their testimony was offered to prove the truth of the matter asserted and for no other reason.\nIt is suggested that this testimony was admissible as an exception to the hearsay rule on the basis of \u201cres gestae.\u201d In People v. Poland, 22 Ill.2d 175, 180, 174 N.E.2d 804, 806, the supreme court laid this term to rest by stating:\n\u201cWe see no useful purpose to be served in dealing with the problem by using the term \u2018res gestae.\u2019 That amorphous concept has been applied indiscriminately to a multitude of situations, some of which contain no element of hearsay at all, while others involve true exceptions to the hearsay rule. As applied to the situation involved here, we think that the term \u2018res gestae\u2019 not only fails to contribute to an understanding of the problem but may actually inhibit any reasonable analysis.\u201d\nWe must then examine the recognized exceptions to the hearsay rule. There are only two applicable \u2014 the first of which is characterized as \u201cspontaneous declarations\u201d or \u201cexcited utterances\u201d and the second, which is referred to as \u201cstatement of intention.\u201d\nThe testimony objected to herein could not, through the definitions of Poland, be characterized as \u201cspontaneous declarations\u201d or \u201cexcited utterances.\u201d\nIn Poland, the supreme court explored this exception and quoted from the Supreme Court of California in defining it by stating:\n\u201c \u2018When a declaration is made under the immediate influence of the occurrence to which it relates and so near in time as to negative any probability of fabrication, said declaration is admissible.\u2019\u201d\nThe court went on to say:\n\u201cThree factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.\u201d 22 Ill.2d 175, 181, 174 N.E.2d 804, 807.\nObviously this exception to the hearsay rule does not apply.\nAnother exception to the rule is that of declaration of mental state or statement of intention. This is developed and is called the \u201cHillmon Rule\u201d from Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 36 L.Ed. 706, 12 S.Ct. 909, and is predicated on the proposition that one does not speak of intent to do an act unless it is on his mind and his thus established state of mind is a circumstance which renders more probable his doing of the particular act declared.\nWe find no applicable cases in Illinois. In Connecticut in their Supreme Court of Errors, in State v. Perelli (1939), 125 Conn. 321, 5 A.2d 705, the court made an extensive examination of statements of intention and, quoting from another Connecticut case said:\n\u201c \u2018A declaration indicating a present intention to do a particular act in the immediate future, made in apparent good faith and not for self-serving purposes, is admissible to prove that the act was in fact performed. It is admissible, not as a part of the res gestae, but as a fact relevant to a fact in issue.\u2019 This is in accordance with the more modern and better reasoned doctrine. [Citations.] The rule itself is more important than the theory on which it is founded. [Citations.] The underlying, essential characteristic of all the numerous cases admitting such evidence [citation] is that the statement must refer to the intention, design or state of mind of the declarant.\u201d 125 Conn. 321, 325, 5 A.2d 705, 707.\nIn all exceptions to the rule against the admission of hearsay evidence, something is being provided as a substitute for the truth seeking tests. As stated in Carpenter:\n\u201cThe fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered.\u201d 28 Ill.2d 116, 121, 190 N.E.2d 738, 741.\nWe find no basis for establishing in a criminal case \u201cthe declaration of mental state\u201d or \u201ca statement of intention\u201d as an exception to the hearsay rule in derogation of the defendant\u2019s rights of confrontation and cross-examination as assured by the constitution.\nThe statements by tire Hurrelbrinks were hearsay, do not come under one of the exceptions to the hearsay rule, and therefore were inadmissible, but their admission does not result in reversal of this cause for the reasons hereinafter stated.\nAn analysis of the questions raised on the objections to certain items of evidence introduced in the face of a contention that the continuity of possession or chain of custody was not established, requires a brief statement of fact.\nThe appellant objects to the admission of certain exhibits, namely, five cans of lye, a small metal cap and five .45-caliber bullets. He also objects to all items received in evidence from the El Camino truck.\nThe five cans of lye were not received into evidence. They were offered. Objections were made. The objections were sustained and the cans of lye were not admitted. Hiere were over 130 exhibits, some of which included more than one item. There is nothing in the record that indicates the five cans of lye were singled out, unduly exposed to the jury nor that their presence before the jury was unduly prejudicial. In the absence of a showing of prejudice and on the basis that the cans of lye were not admitted into evidence, no possible error could occur.\nAll items to which objection is made are items which we can call real evidence \u2014 an item which is relevant to the controversy. In the case of real evidence, the object or objects introduced must be relevant, authenticated and the evidence must establish that there is no change in condition.\n\u201cIt will be readily apparent that when real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further that the condition of the object is substantially unchanged. If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition. On the other hand, if the offered evidence is of such a nature as not to be readily identifiable, or to be susceptible to alteration by tampering or contamination, sound exercise of the trial court\u2019s discretion may require a substantially more elaborate foundation. A foundation of the latter sort will commonly entail testimonially tracing the \u2018chain of custody\u2019 of the item with sufficient completeness to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.\u201d McCormick\u2019s Handbook of the Law of Evidence \u00a7 212, at 527-28 (Cleary 2d ed. 1972).\nThis statement is consistent with the law in Illinois. (See People v. Pittman, 28 Ill.2d 100, 190 N.E.2d 802; People v. Tribbett, 41 Ill.2d 267, 242 N.E.2d 249; People v. Anthony, 28 Ill.2d 65, 190 N.E.2d 837; People v. Norman, 24 Ill.2d 403, 182 M.E.2d 188; People v. Smith, 413 Ill. 218, 108 N.E.2d 596.) It is obvious that an item which we call real evidence does not in fact become evidence at all until the investigation focuses on it and it becomes apparent that it should be considered as possible evidence in a particular case. Then, the obligation to preserve such an item against the possibility of substitution, alteration or tampering accrues and the chain of custody or possession begins. See People v. Harper, 26 Ill.2d 85, 185 N.E.2d 865; Norman.\nAn examination of the record in this cause indicates that the exhibits in question were relevant in the controversy, had a proper foundation laid for their admission and their condition was neither changed nor-altered. The fact that the El Camino truck was not recovered immediately after the crime and that the investigation did not focus immediately on it and therefore the protective techniques were not employed until some time had passed goes to the weight or the credibility of the evidence in contrast to its admissibility.\nThe defendant further objects to the giving of People\u2019s Instruction No. 8, 11 and 14 and the denial of the Defendant\u2019s Instructions Nos. 59 through 67 and 68.\nA basic premise of our system of justice, too well known for citation, is that a jury is obligated to follow the instructions in tofo and not to consider them singly or to single out certain instructions and disregard others. It is incumbent upon the reviewing court to follow the same fundamental rudiments in considering a case on review and particularly in considering objections made to the specific instructions.\nThe record discloses that this basic premise was followed by the trial judge conscientiously, patiently and courteously in the face of a long and difficult trial and numerous and lengthy instructions. Considered \u201cas a whole,\u201d the instructions properly and adequately state the law applicable to this case.\nThis case was tried and the instructions prepared and given prior to the availability of Illinois Pattern Jury Instructions. Viewed in light of IPI \u2014 Criminal, the instructions given in this cause were in some instances excessive in length, confusing and incomplete, particularly in that no specific instruction as to the \u201cissues\u201d in the cause was given. While IPI Instructions are \u201cmuch to be preferred,\u201d their unavailability at the time of trial of this cause, in addition to a consideration of all of the instructions, does not warrant reversal in this cause. See People v. Knox, 116. Ill.App.2d 427, 252 N.E.2d 549.\nIn the instant case, the court gave People\u2019s Instruction No. 8, which states: \u201cMotive is that which prompts a person to act. The State is not required to prove the motive for the commission of the crime charged,\u201d and the Defendant\u2019s Instruction No. 69, which states: \u201cThe Court instructs the jury that although the State is not required to prove a motive to convict one- accused of murder, nevertheless, it is still a circumstance in determining the guilt of the defendant, where the evidence is entirely circumstantial.\u201d\nThe defendant objects on the basis that People\u2019s Instruction No. 8 does not state the law in Illinois and Defendant\u2019s Instruction No. 69 does.\nThe case of People v. Hobbs, 35 Ill.2d 263, 220 N.E.2d 469, is dispositive of this question. The court stated:\n\u201cWhere a deliberate criminal act is proved the State is not required to prove a motive for it, as motive is not an essential element of the crime of murder. [Citation.] And an instruction that is calculated to mislead the jury to understand that the law requires evidence of motive is properly refused. [Citation.] Defendant cites cases from other jurisdictions holding that if an instruction is given that motive is not essential to be proved, the converse of such proposition must likewise be given, that failure to prove motive is a circumstance to be considered in defendant\u2019s favor. However, these cases and others we have examined appear to involve circumstantial evidence cases or cases where there is some doubt as to who committed the offense. It can be readily seen in such cases where failure to prove motive might have some bearing upon the guilt or innocence of the accused.\u201d 35 Ill.2d, 263, 269, 220 N.E.2d 469, 472.\nIn the instant case, the evidence was circumstantial, the court correctly stated the law, and in so doing, complied with Hobbs in instructing the jury.\nThe defendant objects to People\u2019s Instruction No. 14 on tire basis that it omits in the instruction that portion of IPI Instruction 3.02:\n\u201cYou should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.\u201d\nAgain, the jury was instructed prior to the availability of Illinois Pattern Jury Instructions in criminal cases, and we must consider the instructions as a whole. The court gave Defendant\u2019s Instruction No. 8, which stated:\n\u201cThe Court further instructs the jury that if you can reconcile the evidence in this case upon any other reasonable theory or hypothesis than that of this defendant\u2019s guilt, it is your duty to do so and to find the defendant not guilty.\u201d\nPeople\u2019s Instruction No. 14 and Defendant\u2019s Instruction No. 8, when considered together, correctly state the law in the case in which all evidence is circumstantial.\nThe defendant also asserts that Defendant\u2019s Instruction No. 68 should have been given. It is substantially the same as People\u2019s Instruction No. 14 and Defendant\u2019s Instruction No. 8, considered together, both of which were given, but comparison of Defendant\u2019s Instruction No. 68 with the combination of People\u2019s Instruction No. 14 and Defendant\u2019s Instruction No. 8 indicates that the combination of the two instructions correctly and adequately sets forth the law and Defendant\u2019s Instruction No. 68 does not.\nThe defendant objects to People\u2019s Instruction No. 11, which he contends does not correctly and adequately state the law applicable and further asserts that Defendant\u2019s Instructions Nos. 59 through 67 should have been given.\nPeople\u2019s Instruction No. 11 states:\n\u201cThe Court instructs the jury that in the crime of murder, intent or knowledge is a material element of the crime and must be proved beyond a reasonable doubt. The Court further instructs the jury, as a matter of law, that if you believe from the evidence, beyond a reasonable doubt, that the defendant committed the crime as alleged in the indictment, and that the defendant acted with knowledge or intent, the knowledge or intent requisite to make out the case shall be proved.\u201d\nThis instruction must be considered in conjunction with People\u2019s Instruction No. 17, which states:\n\u201cThe Court instructs the jury, in the language of the statute, that a person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death, he either intends to kill or to do great bodily harm to that individual, or knows that such acts will cause death to the individual, or he knows that such acts create a strong probability of death or great bodily harm to that individual.\u201d\nIn People v. Benson, 19 Ill.2d 50, 58, 166 N.E.2d 80, 84, the court stated:\n\u201cWhen one is charged with murder the elements which must be established are proof of death and proof of a criminal agency causing death, both of which must be established by the evidence beyond a reasonable doubt. [Citation.]\u201d\nAs stated in Knox:\n\u201cIt is true that the determination of questions of law is the province of the court, and that instructions, which leave to the jury the determination of what are the material issues in a criminal case, are erroneous, [Citations.] However, it is for the jury to determine facts of the case, and where the instructions, as a whole, inform the jury of the facts which are essential to the proof of the commission of a specific crime, any error in giving an instruction * * * will not be considered so prejudicial as to warrant a reversal.\" 116 Ill.App.2d 427, 434, 252 N.E.2d 549, 553-54.\nIn considering the objections to instructions, the supreme courts decision in People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436, is particularly appropriate. In that case the court said:\n\u201c[A] conviction may be sustained upon circumstantial evidence as well as direct evidence, [Citation] it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. [Citations.] The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused\u2019s guilt. [Citations.] We do not see how the jury here could have reached any other conclusion than it did. * * *\n* * * Neither circumstance, when laid beside the other evidence in the case, gives rise to a hypothesis of innocence.\u201d 30 Ill.2d 359, 367-368, 197 N.E.2d 436, 441.\nTwo decisions of our supreme court that are apropos in regard to instructions and the inadmissible evidence attendant to the Hurrelbrink testimony are the cases of People v. Truelock, 35 Ill.2d 189, 220 N.E.2d 187, and People v. Ward, 32 Ill.2d 253, 204 N.E.2d 741.\nIn Truelock, the supreme court said:\n\u201c[W]e do not think that the error in this case requires reversal. \u2018Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant\u2019s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.\u2019 [Citation.]\u201d 35 Ill.2d 189, 192, 220 N.E.2d 187, 190.\nThe language of the supreme court in Ward is more extensive, and therefore its expansion herein supplies authority for our position. The court said:\n\u201cHe complains generally that other incompetent and inflammatory evidence was admitted, that several given instructions are erroneous, and that the whole set is insufficient to \u2018define the various issues,\u2019 None of the evidence complained of is specified, nor is any one of the instructions objected to set forth in the brief. We have nevertheless examined both the evidence and the instructions and find nothing therein that could reasonably have affected the result of the trial. A reading of the evidence does not leave the slightest doubt of guilt, and the trial, which consumed nine days, was conducted in a fair and impartial manner. Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant\u2019s guilt is so clear and convincing that the jury could not reasonably have found him not guilty. [Citation.]\u201d 32 Ill.2d 253, 256, 204 N.E.2d 741, 743.\nIn Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, the Supreme Court of the United States said:\n\u201c\u2018[T]hat before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.\u201d 386 U.S. 18, 24, 17 L.Ed.2d 705, 710-11.\nIn People v. Brown, 51 Ill.2d 271, 273, 281 N.E.2d 682, 683, our supreme court said:\n\u201cConstitutional error can be harmless when it is established \u201cbeyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.\u2019 [Citation.]\u201d\nAny error occurring in the trial of the cause considered under this opinion was harmless error beyond a reasonable doubt. The testimony of the Hurrelbrinks was merely cumulative and objective consideration of the evidence clearly proves the defendant\u2019s guilt beyond a reasonable doubt without reference to the Hurrelbrink testimony.\nThe instructions, as given, while not models of perfection, adequately instructed the jury. Such errors, if any, did not warrant reversal.\nThere was no reasonable theory or hypothesis which would give rise to a finding of the defendant\u2019s innocence. Evidence of the defendant\u2019s guilt in this case is so clear and convincing that the jury could not reasonably have found him not guilty.\nJudgment affirmed.\nCRAVEN, J., concurs.", "type": "majority", "author": "Mr. JUSTICE SCHOLZ" }, { "text": "Mr. PRESIDING JUSTICE TRAPP,\nspecially concurring:\nWhile concurring in the affirmance, I cannot agree with the conclusion that the testimony of Hurrelbrink regarding decedent\u2019s stated intention to go to the \u201cblockhouse\u201d was inadmissible hearsay.\nNotwithstanding the statement in the opinion, such testimony was held to be properly admitted in People v. Reddock, 13 Ill.App.3d 296, 300 N.E.2d 31, which discusses such statements of intention as an exception to the hearsay rule in the light of the unavailability of the declarant and the reasonable probability of trustworthiness of such statement where there was no apparent reason for fabrication by declarant. See also the cases collected in Annot., 113 A.L.R. 268 (1938).\nAgain, such testimony would appear to be admissible under Rule 803(3) of the Federal Rules of Evidence, effective July 1, 1975.", "type": "concurrence", "author": "Mr. PRESIDING JUSTICE TRAPP," } ], "attorneys": [ "John F. McNichols and J. Daniel Stewart, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "C. Joseph Cavanagh, State\u2019s Attorney, of Springfield (James W. Jerz and Edward N. Morris, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Stuart Cole, a/k/a Stuart Kol, Defendant-Appellant.\n(No. 11111;\nFourth District\nJune 12, 1975.\nRehearing denied July 11, 1975.\nTRAPP, P. J., specially concurring.\nJohn F. McNichols and J. Daniel Stewart, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nC. Joseph Cavanagh, State\u2019s Attorney, of Springfield (James W. Jerz and Edward N. Morris, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0369-01", "first_page_order": 393, "last_page_order": 405 }