Illinois v. Raby Brief and Argument for Appellee

    NO. 40596

IN THE

S u p re m e  C o u r t  of S lltn o ig

PEOPLE OF THE STATE OF ILLINOIS.

Appellee,

vs.

ALBERT A  RABY,
Appellant.

BRIEF AND ARGUMENT FOR APPELLEE.

WILLIAM G. CLARK,
Attorney General,
State of Illinois,
Supreme Court Building,
Springfield, Illinois,

Attorney for Appellee.
Joins' J. S tamos,

State’s Attorney,
County of Cook,
Room 500 —  Civic Center,
Chicago, Illinois 60602;

F red G. L e a c h ,
Assistant Attorney General;

E l m e r  C . R issane,
J o el  M. F l a u m ,

Assistant State’s Attorneys,

Of Counsel.

Appeal from the 
Circuit Court of 

Cook County, 
Municipal Division.

Honorable 
Maurice Lee,

Magistrate Presiding.

PrlntlUK Company «^St-365



I N  T H E

S u p re m e  C o u r t  of iU tn o to
>

PEOPLE OF THE STATE OF ILLINOIS, Appeal from the
Appellee, Circuit Court of 

Cook County, 
Municipal Division.VS.

r —
ALBERT A. RABY, Honorable

Appellant. Maurice Lee,
Magistrate Presiding.

BRIEF AND ARGUMENT FOR APPELLEE.

Preliminary Statement.

The issue here, is whether . . Mr. Raby, or anyone, no 
matter how laudable his aims or lofty his goals . . . 

(may) . . . break the law with impunity.” (Rec. .943; Abst. 
316)

At trial the defendant did not dispute the fact that he 
sat or lay in the middle of a busy downtown business inter­
section during the afternoon rush hour nor did he dispute 
that upon his arrest he refused to voluntarily accompany 
the arresting officers. Instead he admittedly went limp 
and had to be carried away.

The defendant’s theory at trial was that, for technical 
reasons, either the statutes, complaints, or jury instruc­
tions were faulty. Further, that because of his non-violent



2

actions, good character, and his claimed admirable motiva­
tion he was not guilty of collecting in a crowd, or body, 
for unlawful purposes or of resisting arrest.

The People’s theory at trial was that the defendant 
was guilty of disorderly conduct notwithstanding his non­
violent actions, good character, and claimed admirable 
motivation in that he collected along with other into a 
crowd, or body, and reclined in the middle of a busy inter­
section for the unlawful purpose of disrupting traffic, or 
for the purpose of annoying and disturbing others in an 
unreasonable manner. And further, that he wTas guilty of 
resisting arrest since he refused to voluntarily accompany 
the arresting officer when taken into custody.



3

POINTS AND AUTHORITIES

I .
ON THEIR FACE AND AS APPLIED, THE DISOR­

DERLY CONDUCT STATUTE, ILL. REV. STAT. CH. 
38, § 26 -l(a )(l) (1967), AND RESISTING ARREST 
STATUTE, ILL. REV. STAT. CH. 38, § 31-1 (1967), 
ARE NEITHER SO VAGUE NOR OVERBROAD AS 
TO VIOLATE RIGHTS OF FREE SPEECH AND 
SUBSTANTIVE OR PROCEDURAL DUE PROCESS, 
AS CONTAINED IN THE FIRST AND FOUR­
TEENTH AMENDMENTS TO THE UNITED STATES 
CONSTITUTION AND ARTICLE II, SECTIONS 2 
AND 4 OF THE ILLINOIS CONSTITUTION.

The Defendant, Whose Own “Hard-Core” Conduct Is 
Clearly Prohibited Under Any Construction Of The Con­
tested Statutes, Lacks Standing To Assert Overbreadth 
Because The Statutes Do Not By Their Terms Regulate 
First Amendment Freedoms.

Cox v. Louisiana, 379 U.S. 536, 554-55 (1965); 
Adderly v. Florida, 385 U.S. 39, 47 (1966);
City of Chicago v. Joyce, 38 111. 2d 368, 371 

(1967);
United States v. Raines, 362 U.S. 17, 21-23 (1960); 
Niemotke v. Maryland, 340 U.S. 268, 282 (1950); 
Schneider v. New Jersey, 308 U.S. 147, 160 

(1939);
City of Chicago v. Lambert, 197 N.E. 2d 448, 454 

(111. 1964);
Feiner v. New York, 340 U.S. 315, 326 (1951);



4

City of Chicago v. Gregory, 39 111. 2d 47, 60, 233 
N.E. 2d 422, 429 (1968);

Brown v. Louisiana, 383 U.S. 131, 142, 147-48 
(1966);

Edwards v. South Carolina, 372 U.S. 229 (1963); 
Hague v. C.I.O., 307 U.S. 496, 515-16 (1939); 
Terminiello v. City of Chicago, 337 U.S. 1, 3-4 

(1949);
Winters v. New York, 333 U.S. 507, 509-10 (1948); 
Dowbrowski v. I Mister. 380 U.S. 479, 486-87

(1965) ;
Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); 
Sedler, Standing to Assert Constitutional Jus 

Tertii in the Supreme Court, 71 Yale L. J. 599, 
613 (1962);

Kamin, Residential Picketing and the First 
Amendment, 61 Nw. U. L. R. 177, 208, 223
(1966) ;

Kalven, The Concept of the Public Forum, Sup. 
Ct. Rev. 1, 23-25 (1965);

Kalven, The Negro and the First Amendment, 
140-60 (1965).

The Disorderly Conduct And Resisting Arrest Statutes 
Are Not So Overly Broad As To Violate The Right Of Free 
Speech.

United States v. Woodard, 376 F. 2d 136, 143 (7th 
Cir. 1967);

Landry v. Daley, No. 67 C 1863 (N.D. 111., filed 
March 4, 1968) (pp. 41-42);

Brown v. Louisiana, 383 U.S. 131 (1966);
Zwicker v. Boll, 270 F. Supp. 131 (D. Wise. 1967); 
United States v. Jones, 365 F. 2d 675, 677 fn, 3 

(2nd Cir. 1966);



5

Feiner v. New York, 340 U.S. 315 (1951);
City of Chicago v. Gregory, Nos. 39983-84 (111., 

filed Jan. 19, 1968);
Adderly v. Florida, 385 U.S. 39 (1966);
Cox v. Louisiana, 379 U.S. 559 (1965);
Edwards v. South Carolina, 372 U.S. 229 (1963);
Wright v. Georgia, 373 U.S. 284 (1963);
Garner v. Louisiana, 368 U.S. 157 (1961);
Cox v. Louisiana, 379 U.S. 536 (1965);
Terminiello v. Chicago, 337 U.S. 1, 4 (1949).

The Defendant, Whose Own Hard-Core Conduct Is 
Clearly Prohibited Under Any Construction Of The Dis­
orderly Conduct Statute, Lacks Standing To Assert That 
It Is Void For Vagueness.

United States v. Raines, 362 U.S. 17, 21 (1960);
United States v. Woodard, 376 F. 2d 136, 145 (7th 

Cir. 1967);
United States v. Nat’l Dairy Corp., 372 U.S. 29, 

33 (1963);
Connally v. Gen. Construction Co., 269 U.S. 385, 

391 (1926);
Amsterdam, Void-For-Vagueness Doctrine in the 

Supreme Court, 109 U. Pa. L. Rev. 67, 100-101 
1960);

Sedler, Standing to Assert Constitutional Jus 
Tertii in the Supreme Court, 71 Yale L. J. 599, 
617 (1962).

The Disorderly Conduct and Resisting Arrest Statutes 
Are Not So Vague As To Violate The Right Of Due Pro­
cess Of Law.

United States v. Woodard, 376 F. 2d 136, 141- 
42, 145 (7th Cir. 1967);



6

Landry v. Daley, No. 67 C 1863 (N.D. 111., filed 
‘March 4, 1968) (pp. 40-42);

111. Eev. Stat. ch, 38, § 26-1, Committee Comments 
(Smith-Hurd, 1964);

People v. Harvey, 123 N.E. 2d 81, 83 (N.Y. Ct. of 
App. 1954);

Nash v. United States, 229 U.S. 373, 377 (1913); 
Boyce Motor Lines, Inc. v. United States, 342 U.S. 

337, 340 (1952);
State v. Smith, 218 A. 2d 147, 151 (N.J. 1966), 

cert. den. 385 U.S. 838 (1967);
Cantwell v. Connecticut, 310 U.S. 296, 308 (1940); 
United States v. Petrillo, 332 U.S. 1, 7-8 (1947); 
People v. Turner, 265 N.Y.S. 2d 841, 856 (Sup. Ct, 

1965), aff’d 218 N.E. 2d 316 (1966), cert. den. 
386 U.S. 773 (1967);

Webster’s New Twentieth Century Dictionary 
(“ alarm” ) ;

Webster’s Third New International Dictionary 
(“ disturb” ) ;

Brown v. Louisiana, 383 U.S. 131, 141-42 (1966). 
People v. Knight, 228 N.Y.S. 2d 981, 987-88 (N.Y.

City Magistrates Ct, 1962);
In Re Bacon, 240 Cal. App. 2d 34; 49 Cal. Eptr. 

322 (1966);
People v. Crayton, 284 N.Y.S. 2d 672 (Sup. Ct. 

1967);
People v. Martinez, 43 Misc. 2d 94; 250 N.Y.S. 2d 

28 (N.Y. City Crim. Ct. 1964);
Skolnick, Justice Without Trial 88 (1966); 
People v. Salesi, 324 111. 131; 154 N.E. 715 

(1926);
Edwards v. South Carolina, 372 U.S. 229 (1963);



7

Cox v. Louisiana, 379 U.S. 536 (1965);
Collings, Unconstitutional Uncertainty—An Ap­

praisal, 40 Cornell L. Q. 195, 205 (1955).

Even If The Disorderly Conduct Statute Could Not Be 
Said To Embrace Adequate Due Process Standards On 
Its Face, The Subject Matter Being Regulated Necessarily 
Requires A Scheme Of Law Administration Involving The 
Exercise Of Ad Hoc Judgment By The Police, And Be­
cause Defendant Was Apprised Of The Illegality Of His 
Conduct, Prior To His Arrest, He Thus Received Fair 
Warning That The Conduct Was Prohibited And There­
fore May Not Now Assert A Denial Of The Right To Due 
Process Of Law.

Cox v. Louisiana, 379 U.S. 559, 568-70 (1965); 
Amsterdam, Void-For-Vagueness Doctrine in the 

Supreme Court, 109 U. Pa. L. R. 67, 95 (1960); 
Kamin, Residential Picketing and the First 

Amendment, 61 Nw. U. L. Rev. 177, 220 (1966).

II., V.
THE DISORDERLY CONDUCT AND RESISTING AR­

REST COMPLAINTS AND JURY INSTRUCTIONS 
WERE NOT ERROR SINCE THEY ADEQUATELY 
INSTRUCTED THE DEFENDANT AND THE JURY 
OF THE NATURE AND THE ELEMENTS OF THE 
OFFENSES CHARGED AND IN NO WAY PREJU­
DICED HIS DEFENSE.

THE COMPLAINTS

City of Chicago v. Joyce, 38 111. 2d 368 ; 232 N.E. 
2d 289 (1967);

City of Chicago v. Lambert, 47 111. App. 2d 151; 
197 N.E. 2d 448 (1964);



8

People v. Woodruff, 9 111. 2d 429; 137 N.E, 2d 809 
(1957);

People v. Nastario, 30 111. 2d 51; 195 N.E. 2d 144 
(1963);

Smith v. United States, 360 U.S. 1, 9; 79 S. Ct. 
991, 996 (1959);

38 S.H.A. § 26-1 (a), Committee Comments (1967); 
United States v. Woodard, 376 F. 2d 136 (7th Cir. 

1967);
People v. Brown, 336 111. 257, 258-259; 168 N.E. 

289 (1929);
People y. Collins, 35 111. App. 2d 228; 182 N.E. 

2d 387 (1963);
People v. Peters, 10 111. 2d 577; 414 N.E. 2d 9 

(1957);
People v. Williams, 30 111. 2d 125; 196 N.E. 2d 

483 (1963);
People v. Flynn, 375 111. 366; 31 N.E. 2d 591 

(1941).

THE INSTRUCTIONS

People v. Knight, 35 Misc. 2d 218; 228 N.Y.S. 2d 
981 (N.Y. City Magistrates Ct. 1962);

Landry v. Daley, No. 67 C 1863 (N.D. 111., filed 
March 4, 1968);

People v. Crayton,------Misc, 2 d ------- ; 284 N.Y.S.
2d 672 (Sup. Ct, 1967);

In Re Bacon, 240 Cal. App. 2d 34; 49 Ca, Rptr. 
322 (1966);

People v. Martinez, 43 Misc. 2d 94; 250 N.Y.S. 2d 
28 (N.Y. City Crim. Ct. 1964);

Terminiello v. City of Chicago, 337 U.S. 1; 69 S. 
Ct. 894 (1949); '

People v. Davis, 74 111. App. 2d 450; 221 N.E. 2d 
63 (1966).



9

THE AMENDMENT OF THE COMPLAINT DID NOT 
VIOLATE THE DEFENDANT’S RIGHTS SINCE THE 
STRICKEN PORTION CONSTITUTED A MERE 
FORMAL DEFECT TO AN OTHERWISE CLEAR 
AND UNAMBIGUOUS CHARGE.

Illinois Revised Statutes, Chapter 38, §§ 7-7, 31-1 
and 111-5;

People v. Mamolella, 85 111. App. 2d 240, 229 N.E. 
2d 320 (1967);

Sixth Amendment to the United States Constitu­
tion ;

Fourteenth Amendment to the United States Con­
stitution ;

Article II, §§ 2 and 9 of the Illinois Constitution.

I I I .

I V .
THE ADMISSION OF THE STATE’S AMENDED LIST 

OF WITNESSES DID NOT VIOLATE THE DEFEND­
ANT’S RIGHTS SINCE THE WITNESSES WERE 
PREVIOUSLY UNKNOWN TO THE STATE AND 
SINCE HE HAS NOT SHOWN HOW PRIOR KNOWL­
EDGE OF THEIR IDENTITIES WOULD HAVE BET­
TER ENABLED HIM TO MEET THEIR TESTI­
MONY.

Illinois Revised Statutes, Chapter 38, § 114-9;
People v. O’Hara, 332 111. 436, 447, 466, 163 N.E. 

804 (1928);
People v. Weisberg, 396 111. 412, 421, 71 N.E. 2d 

671 (1947);



10

Pointer v. Texas, 380 U.S. 400 (1965);
Douglas v. Alabama, 380 U.S. 415 (1965);
United States v. Wade, 388 U.S. 218 (1967);
Sixth Amendment to dhe United States Constitu- 

tion;
Fourteenth Amendment to the United States Con­

stitution ;
Article II, 2 and 9 of the Illinois Constitution.

¥ 1 .

DEFENDANT’S CONSTITUTIONAL RIGHT OF DUE 
PROCESS WAS NOT INFRINGED BY THE TRIAL 
COURT’S REFUSAL TO ADVISE THE JURY THAT 
THEY WOULD HAVE TO ASCERTAIN DEFEND­
ANT’S STATE OF MIND BY LOOKING TO HIS CON­
DUCT, OR BY THE COURT’S REFUSAL TO IN­
STRUCT THE JURY AS TO DICTIONARY MEAN­
INGS OF THE RESISTING ARREST STATUTORY 
LANGUAGE “ RESISTS OR OBSTRUCTS”, BECAUSE 
THE SUBJECT MATTER OF BOTH TENDERED IN­
STRUCTIONS WAS EMBRACED IN OTHER GIVEN 
INSTRUCTIONS.

People v. Fernow, 286 111. 627, 630, 122 N.E. 155 
(1919);

People v. Billardello, 319 111. 124, 149 N.E. 781 
(1925);

Landry v. Daley, No. 67 C 1863 (N.D. 111., filed 
March 4, 1968);

111. Rev. Stat., ch. 38, § 115-4(a) (1967);
People v. Bruner, 343 111. 146, 158, 175 N.E. 400 

(1931);
People v. 'Cavaness, 21 111. 2d 46, 171 N.E. 2d 56

(1961);



11

People v. Thompson, 81 111. App. 2d 263, 226 N.E. 
2d 80 (1967);

C.J.S. Criminal Law § 1190(a), at 476-77 (1961);
People v. Lyons, 4 111. 2d 396, 122 N.E. 2d 809 

(1954);
Hall v. Chicago & N. W. Ry., 5 111. 2d 135, 125 

N.E. 2d 77 (1955);
Herndon v. Lowry, 301 U.S. 242, 263 (1937).

V I I .

DEFENDANT’S INSTRUCTION NUMBER 10 WAS 
CORRECTLY EXCLUDED SINCE IT WAS DUPLICI­
TOUS AND ERRONEOUS IN ITS INCLUSION OF A 
REFERENCE TO A WITNESS’S FINANCIAL IN­
TEREST IN THE RESULT OF THE CASE.

Lauder v. People, 104 111. 248 (1882);
People v. Provo, 409 111. 63, 97 N.E. 2d 802, 806, 

807 (1951);
2d 438, 442 (1965).

People v. Laczny, 63 111. App. 2d 324, 211 N.E.

V I I I .

THE TRIAL COURT DID NOT ERR IN ITS INSTRUC­
TIONS RELATIVE TO THE WITNESS’S “IN­
TERESTS” SINCE BOTH MEANINGS OF THAT 
TERM WERE ADEQUATELY CONVEYED TO THE 
JURY WITHOUT PREJUDICE TO THE DEFEND­
ANT.

People v. Corbishly, 327 111. 312, 158 N.E. 732 
(1927);

People v. Solomen, 261 III. App. 585 (1931);



People v. Emerling, 341 111. 424, 173 N.E. 474 
(1930);

People v. Provo, 409 111. 63, 97 N.E. 2d 802 
(1951);

People v. Laezny, 63 111. App. 2d 324, 211 N.E. 2d 
438, 442 (1965).

I X .

THE TRIAL COURT DID NOT PREJUDICIALLY ERR 
IN EXCLUDING THE TESTIMONY OF A DEFENSE 
WITNESS, MR. LETHERER, AFTER THE COURT 
HAD RULED THAT ALL WITNESSES BE SE­
QUESTERED, SINCE MR. LETHERER WAS PRES­
ENT IN THE COURT ROOM DURING THE TESTI­
MONY OF PROSECUTION WITNESSES PRIOR TO 
HIS BEING CHOSEN AS A WITNESS AND SINCE, 
TO THE EXTENT THAT MR. LETHERER’S TESTI­
MONY WAS NOT IMMATERIAL AND IRRELEV­
ANT, IT WAS CUMULATIVE.

6 Wigmore, Evidence, §§ 1837-1839, 1908 (3rd ed. 
1940);

111. Rev. Stat. ch. 38, §' 109-3 (b) (1967);
Annotation, 32 A.L.R. 2d 358.
People v. Dixon, 23 111. 2d 136; 177 N.E. 2d 206 

(1961);
People v. Mack, 25 111. 2d 417; 185 N.E. 2d 154
(1962);
Annotation, 14 A.L.R. 3d 16;
Palmer v. People, 112 111. App. 527 (1903);
Ewing v. Cox, 158 111. App. 25 (1910);
Kota v. People, 136 111. 655; 27 N.E. 53 (1891);
Bnlliner v. People, 95 111. 394 (1880).



13

X .
THE COURT PROPERLY EXERCISED DISCRETION 

IN EXCLUDING THE TESTIMONY OF V/ITNESSES 
REGARDING ALLEGED POLICE BRUTALITY 
SINCE THE SUBJECT WAS OUTSIDE OF THE 
SCOPE OF THE DIRECT EXAMINATION OF MR. 
BECKER AND OFFICER KARCHESKY AND SINCE 
THE SUBJECT WAS IMMATERIAL AND IRRELE­
VANT TO THE ISSUES OF THE CASE.

Veer v. Hagemann, 334 111. 23, 165 N.E. 175 
(1929);

People v. Kirkwood, 17 111. 2d 23, 29; 160 N.E. 
2d 766 (1959);

People v. Simmons, 274 111. 528; 113 N.E. 887 
(1916);

People v. Halteman, 10 111. 2d 74; 139 N.E. 2d 286 
(1957);

3 Wigmore, Evidence §§ 944, 983 (2) (3rd ed. 
1940);

People v. DuLong, 33 111. 2d 140, 144 ; 210 N.E. 
2d 513 (1965);

People v. Matthews, 18 111. 2d 164; 163 N.E. 2d 
469 (1959);

People v. Smith, 413 111. 218; 108 N.E. 2d 596 
(1952);

People v. DelPrete, 364 111. 376, 379-380; 4 N.E. 
2d 484 (1936);

People ex rel. Noren v. Dempsey, 10 111. 2d 288; 
139 N.E. 2d 780 (1957);

People v. Lettrick, 413 111. 172; 108 N.E. 2d 48S 
(1952);

People v. Shines, 394 111. 428; 68 N.E. 2d 911 
(1946).



14

X I .

THE COURT PROPERLY SENTENCED THE DEFEND­
ANT ON BOTH THE DISORDERLY CONDUCT 
CHARGE AND THE RESISTING ARREST CHARGE 
SINCE THEY ARE SEPARATE AND DISTINCT 
CRIMES AND INVOLVED DIFFERENT CONDUCT.

People v. Ritchie, 36 111. 2d 392, 397; 222 N.E. 
2d 479 (1967);

People v. Ritchie, 66 111. App. 2d 302; 213 N.E. 
2d 651 (1966);

111. Rev. Stat. ch. 38, § 1-7 (m) (1967);
People v. Colson, 32 111. 2d 398; 207 N.E. 2d 68 

(1965);
People v. Squires, 27 111. 2d 518; 190 N.E. 2d 361

(1963);
People v. Schlenger, 13 111. 2d 63; 147 N.E. 2d 

316 (1958).

X I I .

THE DEFENDANT’S CLAIM OF UNREASONABLE 
BAIL CANNOT ARISE ON AN APPEAL FOR RE­
VERSAL SINCE THE DEFENDANT HAS FAILED 
TO PURSUE HIS PROPER STATUTORY REMEDY.

Illinois Revised Statutes, Chapter 38, M 110-4, 
110-6 and 110-7;

People v. Lalor, 290 111. 234, 124 N.E. 866 (1920); 
Illinois Supreme Court Rules 361, 606 and 609; 
Eighth Amendment to the United States Constitu­

tion.



15

Fourteenth Amendment to the United States Con­
stitution.

Article II. §§ 2 and 7 of the Illinois Constitution.

X I I I .

THE SENTENCES OF THE TRIAL COURT ARE NOT 
EXCESSIVE NOR OUT OF PROPORTION TO THE 
NATURE OF THE OFFENSES.

People v. Taylor, 33 111. 2d 417, 424, 211 N.E. 2d 
673, 677 (1965);

People v. Smith, 14 111. 2d 95, 97, 150 N.E. 2d 815, 
817 (1958);

Helperin, Appellate Review of Sentence in Illi­
nois—Reality or Illusion?, 55 111. B. J. 300, 301 
fn. 6 (1966).



16

A R G U M E N T

I.

ON THEIR FACE AND AS APPLIED, THE DISOR­
DERLY CONDUCT STATUTE, ILL. REY. STAT. CH. 
38, $ 26-1 (a)(1) (1967), AND RESISTING ARREST 
STATUTE, ILL. REV. STAT. CH. 38, § 31-1 (1967), 
ARE NEITHER SO VAGUE NOR OVERBROAD AS 
TO VIOLATE RIGHTS OF FREE SPEECH AND 
SUBSTANTIVE OR PROCEDURAL DUE PROCESS, 
AS CONTAINED IN THE FIRST AND FOUR­
TEENTH AMENDMENTS TO THE UNITED STATES 
CONSTITUTION AND ARTICLE II, SECTIONS 2 
AND 4 OF THE ILLINOIS CONSTITUTION.

The Defendant, Whose Own “ Hard-Core” Conduct Is 
Clearly Prohibited Under Any Construction Of The Con­
tested Statutes, Lacks Standing To Assert Overbreadth 
Because The Statutes Do Not By Their Terms Regulate 
First Amendment Freedoms.

There is surely very little dissent with the general 
proposition that individuals are privileged by the First 
Amendment to use the medium of peaceful demonstrations 
for the purpose of voicing their protest, merited or other­
wise, against claimed social or governmental injustices. 
And if in the process of exercising that right, spectators 
become disturbed or alarmed, the demonstration will 
nevertheless continue to be protected for the reason that 
free speech has as one of its high purposes just such a re­
sult. Termini ello v. City of Chicago, 337 U.S. 1, 4 (1949). 
The theoretical postulate for the right of free speech is 
to promote the placement of varying views before the



17

public in the marketplace of ideas, so that the majority 
may be persuaded as to the error in their thinking or the 
minority shown the faults in their dissent, with the end 
result that some particular policy judgment will more 
closely reflect the thought-out wisdom generated by the 
democratic process, thereby encouraging the peacefulness 
of change and the responsiveness of government to gov­
erned. But where the record divulges evidence of more 
than mere alarm or disagreement among the spectators, 
so that there exists an imminent threat of violence, to 
still unhesitatingly uphold the demonstrators’ conduct as 
free speech, pure and simple, is to ignore its other face: 
incitement to riot. Even here, however, the law requires 
more. The police must make all reasonable effort to pro­
tect the protestors from the angry crowd because it is their 
duty to maintain order, Hague v. CIO, 307 U.S. 496, 516 
(1939), Feiner v. New York, 340 TT.S. 315, 326 (1951) (dis­
senting opinion of Mr. Justice Black), but if the circum­
stances warrant the belief that, in spite of the officers’ at­
tempts, a breach of the peace will likely ensue, it is in­
cumbent upon the police to demand that the demonstrators 
end their protest, accompany that demand with an explana­
tion if time permits, and arrest those unwilling to desist. 
City of Chicago v. Gregory, 39 111. 2d 47, 60, 233 N.E. 2d 
422, 429 (1968). This resolution of the problem has, 
as already stated, been termed the “Heckler’s Veto”, 
by Professor Kalven of the University of Chicago. 
Kalven, The Negro and the First Amendment 140-60 
(1965). Call it what you will, the law does not contem­
plate standing by until a riot occurs, City of Chicago v. 
Lambert, 197 N.E. 2d 448, 454 (111. 1964), and in most 
street-riots it is not feasible to attempt arrest of the heck­
lers either because of the highly incendiary emotions of 
the crowd or because of inadequate police personnel on



18

the scene. Kamin, Residential Picketing and the First 
Amendment, 61 Nw. U. L. Rev. 177, 223 (1966). “ There 
are circumstances when the requirements of community or­
der may necessitate the arrest of the speakers or the 
marchers, rather than of the members of the crowd who 
would do them violence for otherwise protected and privi­
leged conduct.” Id. at 220.

All these various conditions which must be satisfied 
prior to an arrest for disorderly conduct if it is to pass 
constitutional muster, are cited here merely to emphasize 
and contrast the position in which the defendant finds 
himself. As a pre-condition, some form of constitutionally 
protected conduct is presumed, and on this point the de­
fendant does not begin to qualify. There is no right to 
stand or sit in the middle of a rush-hour street intersection 
in a major city regardless of how lofty the demonstrators’ 
claimed motives may be. Freedom of speech is not so per­
missive as to allow every opinionated individual to address 
a group in any public place at any time. While the content 
of speech undoubtedly may not be tampered with, the 
“when’s” , “where’s”, and “how’s” of free speech are subject 
to a limited degree of regulation. Adderly v. Florida, 385 
U.S. 39, 47 (1966). The procedures of free speech, unlike 
the substance, are not absolute. Mr. Justice Goldberg em- 
phosized this distinction nearly three years ago:

The right of free speech and assembly, while funda­
mental in our democratic society, still do not mean 
that everyone with opinions or beliefs to express may 
address a group at any public place and at any time. 
The constitutional guarantee of liberty implies the 
existence of an organized society maintaining public 
order, without which liberty itself would be lost in 
the excesses of anarchy. . . . One would not be justi­
fied in ignoring the familiar red light because this



19

was thought to be a means of social protest. Nor 
could one, contrary to traffic regulations, insist upon 
a street meeting in the middle of Times Square at the 
rush hour as a form of speech or assembly. Cox v. 
Louisiana, 379 U.S. 536, 554-55 (1965) (Emphasis 
supplied).

One writer has analogyzed the demonstrator’s rights to an 
individual wanting to speak at a meeting conducted under 
Robert’s Rules of Order. In this vernacular, defendant 
is “ out of order” . Kalven, The Concept of the Public 
Forum, Sup. Ct. Rev. 1, 23-25 (1965). Another author puts 
it this way: “ It is my position that the constitutional 
status of a grievance does not give first amendment pro­
tection to every form utilized to air it. Sitting down in 
Times Square or at the intersection of State and Madison, 
however lofty the objectives of the demonstrators may 
be, cannot be supported by constitutional privilege.”  Ka- 
min, Residential Picketing and the First Amendment, 61 
Nw. U. L. Rev. 177, 208 (1966). Granted that the streets 
do represent an invaluable public forum for “purposes of 
assembly, communicating thoughts between citizens, and 
discussing public questions . . . ,”  Hague v. C.I.O., 307 
U.S. 496, 515 (1939), and that a blanket, uniform, and 
nondiscriminatory prohibition against all parades and 
meetings upon all streets would likely be unconstitutional, 
Cox v. Louisiana, 379 U.S. 536, 555 fn. 13 (1965), surely 
even the most avowed critic of governmental regulation 
will acknowledge that the traveling public has as much a 
claim to the use of the streets in a transportation function, 
especially a major thorough-fare or busy intersection, as 
would the demonstrator in a forum function. Indeed, to 
deny the transport function would be a breach of the 
public trust. Niemotko v. Maryland, 340 U.S. 268, 282 
(1950); Schneider v. New Jersey, 308 U.S. 147,160 (1939).



20

The United States Supreme Court, at least, does not 
consider the defendant’s conduct to be constitutionally pro­
tected. Cox v. Louisiana, 379 U.S. 536, 554-55 (1965). 
And this court’s recent decision in City of Chicago v. 
Joyce, 38 111. 2d 368, 371 (1967), illustrates an identical 
attitude. This Court there decided that when the defend­
ant sat down on the sidewalk in front of Chicago’s City 
Hall, thereby obstructing pedestrian traffic as well as 
the entrance to the building, she could not be heard to 
sanction the conduct as an exercise of free speech. “ These 
rights do not mean that everybody wanting to express 
an opinion may plant themselves in any public place at 
any time and engage in exhortations and protest without 
regard to the inconvenience and harm it causes the pub­
lic.” Whether one immobilizes city hall or city traffic, 
that conduct can not be clothed with constitutional garb.

What is left, then, of the defendant’s free speech claim? 
His own conduct being indefensible, lie must resort to the 
evasion that the Disorderly Conduct and Resisting Ar­
rest statutes are overly broad, not as to him of course, 
but as to other individuals. The overbreadth doctrine, if 
successfully employed, states that any statute . . in 
form, and as interpreted, [which permits] within the scope 
of its language the punishment of incidents fairly within 
the protection of the guarantee of free speech is void, on 
its face, as contrary to the Fourteenth Amendment.” Win­
ters v. New York, 333 U.S. 507, 509-10 (1948). The over­
breadth may stem from deliberate and quite precise word­
ing in the statute, or it may arise out o f vagueness of 
some or all of the statutory terms. It is a first amendment- 
substantive due process doctrine created to provide an ex­
ception to the general rule of “ standing” that one may 
not constitutionally challenge a statute, valid as to the 
challenger, on the theory that it violates the rights of a



21

third party. United States v. Baines, 362 U.S. 17, 21-23 
(1960). The rationale for the “ standing” requirement lies 
in the broad constitutional mandate to decide only cases 
or controversies, and in the more narrow common-sense 
guide that the courts should never anticipate a question 
of constitutional law in advance of the grave necessity for 
deciding it or attempt to formulate a rule broader than 
required by the precise facts to which it is to be ap­
plied. Id. at 21. The logic for the exception to the gen­
eral rule, in free expression cases, is that the challenger 
must be given standing in order to enable the court to 
vindicate the in terrorem or chilling effect which the 
statute may have on third persons who are not otherwise 
represented in court and who avoid the advocacy of all 
forms of free speech that might arguably be prohibited 
by the unconstitutional statute, by itself or as construed, 
in order to preclude their being prosecuted subsequently. 
See Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940); 
Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965). Where 
a criminal statute regulating expression is challenged 
as overlybroad, the policy reasons basic to the whole con­
cept of free speech outweigh those policies which inhere 
in the general rules of standing.

As pointed out, however, by Professor Robert A. Sedler 
of St. Louis University in 71 Yale L. J. 599, 613 (1962) 
(“ Standing to Assert Constitutional Jus Tertii in the 
Supreme Court” ), the Supreme Court has ignored the 
particular conduct of the challenger only when the statute 
by its terms regulated the exercise of expression. He dis­
tinguishes that situation from one where a statute not 
prohibiting expression as such can arguably be related 
or applied to the exercise of expression, and concludes 
that in the latter context the Court proceeds from tradi­



22

tional rules of standing, because here the in terrorem ef­
fect on expression is so much diminished as to knock out 
the basis for ignoring the time-honored rules on stand­
ing. Supreme Court cases bear out this analysis. For 
example, in Edwards v. South Carolina, 372 U.S. 229 
(1963), the Court invalidated the state’s common law 
crime of breach of the peace, directed at disorderly con­
duct rather than protected speech, but only after it had 
concluded that the particular conduct sought to be pro­
hibited was constitutionally protected. In Thornhill v. 
Alabama, 310 U.S. 88 (1940), however, the Court looked 
only to the words of the statute without considering Thorn­
hill’s conduct, and found it unconstitutional in as much 
as it sought to prohibit all peaceful picketing. Thornhill, 
unlike Edwards, involved a statute which by its terms 
regulated First Amendment freedoms. In Terminiello v. 
Chicago, 337 U.S. 1, 3-4 (1949), the Court invalidated a 
breach of the peace ordinance construed by the trial court 
as punishing speech which “ stirs the public to anger, 
invites dispute, brings about a condition of unrest, or cre­
ates a disturbance,” even though the defendant’s own 
conduct apparently amounted to “ fighting words”, which 
are not constitutionally protected. Because the Court 
noted that one of the functions of free speech is to create 
dispute, a conviction on any of the grounds designated 
would have violated the First Amendment, and therefore 
the case obviously falls into the “by its terms” (here, the 
trial court’s construction) category. Cox v. Louisiana, 379 
U.S. 536 (1965), involved the very same statute which the 
Court had passed upon in Edwards, and again the Court 
first looked to the conduct involved to determine whether 
it could be constitutionally punished before invalidating 
the convictions. At the end of the opinion relating to the 
breach of the peace prosecution, 379 U.S. 536, 551 (1965),



the Cox Court appended an overbreadth discussion as an 
additional factor in disposing of the case as it did. Be­
cause the Louisiana Supreme Court had defined “breach 
of the peace” as “to agitate, to arouse from a state of 
repose, to molest, to interrupt, to hinder, to disquiet,” and 
because that same court had permitted the statute’s ap­
plication to the defendants in that case, the United States 
Supreme Court saw the statute as being akin to the Ter- 
miniello offense, one which “by its terms” regulated free 
expression. That explains the Cox Court’s invocation of 
the overbreadth doctrine. It is still significant, however, 
that the Cox Court felt constrained to devote the vast 
majority of its opinion to a factually-laden discussion of 
the defendants’ conduct. In Brown v. Louisiana, 383 U.S. 
131, 142 (1966), the Court was again confronted with a 
breach of the peace statute (the term was, as in Illinois, 
not defined in the statute, the latter making it unlawful 
to congregate in a public place “ with intent to provoke 
a breach of the peace” ) and again, because it did not by 
its terms regulate expression, looked first to the special 
facts of the case before overturning the convictions on 
the alternative grounds that no violation was shown by 
the evidence, and that the “ statute can not constitutionally 
be applied to punish petitioners’ actions in the circum­
stances of this case.” Ibid. Mr. Justice Brennan, concur­
ring, was the only member to broach the overbreadth doc­
trine, his reason being that “ [It] suffices that petitioners’ 
conduct, was arguably constitutionally protected and was 
‘not the sort of hard core conduct that would obviously 
be prohibited under any construction’, Dombrowski v. 
Pfister, 380 U.S. at 491-92, of § 14:103.1.” Id. at 147-48. 
If one assumes that Mr. Justice Brennan eschews the 
by its terms analysis, even under his interpretation of



24

the overbreadth doctrine, defendant here could not suc­
cessfully argue overbreadth because his is the sort of hard­
core conduct which Justice Brennan tells us deprives him 
of the privilege to argue rights of third parties.

What the State’s argument then boils down to is simply 
that the Disorderly Conduct and Besisting Arrest statutes 
do not by their terms attempt to regulate first amend­
ment freedoms, and that therefore the overbreadth doc­
trine may not be invoked unless the statutes have been 
unconstitutionally applied. Defendant’s own conduct not 
being privileged as free speech, traditional “ standing” 
theory forbids his evasiveness in arguing rights of third 
parties. Defendant may not be heard, therefore, to as­
sert that the challenged statutes stand in violation of the 
First Amendment.

The Disorderly Conduct And Resisting Arrest Statutes 
Are Not So Overly Broad As To Violate The Right Of Free 
Speech.

But assume arguendo he is heard. In that event, the 
court must be made cognizant of a number of factors, one 
of which is that the plaintiff is not urging an interpreta­
tion of the statutes which would result in a proscription of 
first amendment freedoms. Nor is it thought that this Court 
will construe the statutes to have that effect, reliance 
being placed on the recent decision of City of Chicago 
v. Gregory, 39 111. 2d 47, 60, 233 N.E. 2d 422, 429 (1968), 
where this court’s extreme caution in applying Chicago’s 
Disorderly Conduct ordinance in such a way as to avoid all 
constitutional friction, evidences a recognition of the 
court’s responsibility to limit the statutes involved in the 
instant case to constitutionally proscribable conduct. The 
Federal District Court for the Northern District of Illi­
nois (E.D. in Landry v. Daley, No. 67 C 1963 (N.D. 111.,



25

filed March 4, 1968), has sustained the constitutional va­
lidity of the Illinois Desisting Arrest statute, when chal­
lenged as overlybroad, by giving it a “ reasonable and na­
tural construction” and concluding that “ this statute is 
not directed at peaceful assembly” , (pp. 41-42 of opinion). 
In United States v. Woodard, 376 F. 2d 136, 143 (7th Cir. 
1967), the Seventh Circuit specifically upheld the Illinois 
Disorderly Conduct statute as constitutional when attacked 
for overbreadth, by reasoning that there was no cause to 
assume that the Illinois Courts would apply the statute to 
protected activities, and observing that the District Court 
had narrowly applied the statute to conduct which could, 
not be construed as priviliged under a free speech cloak:

The defendants, citing decisions such as Brown v. 
State of Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 
L. Ed. 2d 637 (1966); Cox v. State of Louisiana, 
supra; Edwards v. South Carolina, 372 U.S. 229, 83 
S. Ct. 680, 9 L. Ed. 2d 697 (1963); Garner v. State 
of Louisiana, 368 U.S. 157, 82 S. Ct. 248, 7 L. Ed. 
2d 207 (1961); and Terminiello v. City of Chicago, 
337 U.S. 1, 69 S. Ct. 894, 93 L. Ed.‘ 1131 (1949), 
point to the threat to first amendment freedom occa­
sioned by the discriminatory application of broadly 
worded statutes designed to maintain public order. 
In the cases cited, statutes and ordinances were struck 
down insofar as the facts disclosed that the laws had 
been applied or construed to allow conviction for the 
exercise of first amendment rights. The situation here 
is entirely different. The defendants’ conduct was 
not constitutionally protected and the statute was 
properly and narrowly applied. It cannot be contend­
ed that the Illinois statute is constitutionally infirm 
for the reason that it may possibly be misapplied to 
include protected activity. We have no warrant to 
assume that the Illinois courts will construe the 
statute improperly or that they will not interpret 
the statute as we have done. The state courts are



26

as firmly bound by the Constitution as the federal 
courts.

With these various factors at hand, and noting that the 
Illinois Disorderly Conduct and Resisting Arrest statutes 
have not been applied by the trial court in this case to 
conduct which might be privileged under a First Amend­
ment gloss, we fail to see how the defendant can truth­
fully assert that they are overbroad because they have 
been, are being, or will be applied to proscribe constitu- 
tiionally protected activities, or that they exert an in 
terrorem and chilling effect on the exercise of free speech. 
Defendant might present a stronger case if the Disorderly 
Conduct statute proscribed merely those acts which “ alarm 
or disturb another”, without more, for Terminiello v. 
Chicago, 337 U.S. 1, 4 (1949), would then apply so as to 
void the statute. But the language is qualified. The acts 
must also be unreasonable and must be such as to pro­
voke a breach of the peace. When all these circumstances 
are present, and the requirements of City of Chicago v. 
Gregory, are satisfied where applicable, no constitutional 
infirmity exists in punishing the actor. Brown v. Louisiana, 
383 U.S. 131 (1966); Feiner v. New York, 340-TJ.S. 315 
(1951); (see first sub-point of this section). A three-judge 
court in Zwicker v. Boll, 270 F. Supp. 131 (D. Wise. 1967) 
took the very same tact as used in Woodard, namely that 
the Wisconsin Disorderly Conduct Statute (punishing those 
who engage in “violent, abusive, indecent, profane, bois­
terous, unreasonably loud, or otherwise disorderly conduct 
under circumstances in which such conduct tends to cause 
or provoke a disturbance” ) had not been, nor was there 
cause to believe it would be, construed by the Wisconsin 
courts as regulating protected expression, and that the 
state statute could properly be used, to punish the de­
fendants for interfering with DOW Chemical Company’s



27

interviews at the University of Wisconsin. The Second 
Circuit in United States v. Jones, 365 F. 2d 675, 677 fn. 
3 (2d Cir. 1966), disposed of an overbreadth challenge 
made to New York’s Disorderly Conduct statute by simply 
denying defendant standing to make that attack, where 
his own conduct was not protected and the New York 
Court of Appeals had restricted the application of the 
statute (defining “breach of the peace” as performing 
acts “ in such a manner as to annoy, disturb, interfere 
with, obstruct, or be offensive to others . . .” ) to conduct 
lying outside the protection of the First Amendment.

Finally, most of the first amendment eases cited by the 
defendant as buttressing authority for his overbreadth 
challenge, involved peaceful and legitimate protests against 
various injustices, not the least of which was racial dis­
crimination in public areas or places of service. They in­
volved statutes purporting to regulate or prohibit certain 
conduct, but factually applied in the case itself in such a 
manner as to interfere with what the United States Su­
preme Court found to be privileged expression. By way 
of illustration, Garner v. Louisiana, 368 U.S. 157 (1961); 
Edwards v. South Carolina, 372 US. 229 (1963); Wright 
v. Georgia, 373 U.S. 284 (1963); and Cox v. Louisiana, 
379 U.S. 536 (1965), all involved first amendment conduct 
which the states attempted to prohibit under one guise or 
another. Where, on the other hand, the statutes were nar­
rowly applied to activity falling outside the protections of 
the first amendment, as is also true in the instant case, 
the Court upheld their validity: Feiner v. New York, 340 
U.S. 315 (1951); Cox v. Louisiana, 379 U.S. 559 (1965) 
(picketing “near” a courthouse prosecution); and Adderly 
v. Florida, 385 U.S. 39 (1966) (prosecution for “ trespass 
upon the property of another with a malicious and mischie­



vous intent” ; defendants had demonstrated on a jailhouse’s 
private delivery entrance).

The Defendant, Whose Own Hard-Core Conduct Is 
Clearly Prohibited Under Any Construction Of The Dis­
orderly Conduct Statute, Lacks Standing To Assert That 
It Is Void For Vagueness.

Regarding defendant’s procedural due process argu­
ment that the Illinois Disorderly Conduct statute is un­
constitutionally vague, everyone will agree with him that 
“ a statute which either forbids or requires the doing of 
an act in terms so vague that men of common intelli­
gence must necessarily guess at its meaning and differ 
as to its application, violates the first essential of due 
process. . . .” Connally v. General Construction Co., 269 
U.S. 385, 391 (1926). “When a statute is attacked on 
vagueness grounds under the due process clause of the 
first or fourteenth amendments, the theory of the attack 
is that the party against whom the statute is to be ap­
plied did not receive fair warning that his conduct was 
prohibited.” Sedler, Standing to Assert Constitutional Jus 
Tertii in the Supreme Court, 71 Yale L.J. 599, 617 (1962).

If nothing else, at the very least, the Disorderly Con­
duct statute surely prohibits an individual’s sitting down 
in the middle of Randolph and La Salle streets during a 
typical rush hour. It may be vague as to a thousand other 
acts but not as to that singular feat of defiance for which 
the defendant was convicted in the lower court. A  reason­
able man simply could not doubt that act was pro­
hibited. Such being the case, how then does defendant 
complain of a lack of notice? His own conduct being 
clearly illegal, his argument lowers itself to the proposi­
tion that the vagueness does exist for other acts by other 
persons. Under typical rules of standing, however, he



may not assert the rights of third persons. United States 
v. Raines, 362 U.S. 17, 21 (1960). If the vagueness in­
quiry necessarily changes the “ standing” rules, it does not 
altogether dispense with their propriety. The vagueness 
analysis simply shifts “the standing question from 'are 
you within the scope of constitutional immunity’ to ‘are 
you within the scope of statutory indefiniteness?’ To chal­
lenge a statute as vague or overreaching, a litigant must 
still be one as to whom it is vague or whom it may over­
reach.” Amsterdam, Void-For-Vagueness Doctrine in the 
Supreme Court, 109 U. Pa. L.R. 67, 100-101 (1960); see 
also United States v. National Dairy Corporation, 372 
U.S. 29, 33 (1963), where the Court ignored a vagueness 
attack upon § 3 of the Robinson-Patman Act, making it a 
crime to sell goods at “unreasonably low prices for the 
purpose of destroying competition” , because the defend­
ant’s selling at below-cost prices was the sort of hard­
core conduct which at the very least was intended to be 
proscribed. As to the defendant Raby, then, no vagueness 
existed and he may not, therefore, claim immunity from 
prosecution on the ground that he did not receive fair 
warning that his conduct was prohibited. “Because of the 
‘hard-core’ nature of these violations, it is clear that de­
fendants had notice that their activities were within the 
ambit of the Illinois statute and therefore cannot success­
fully assail its purported vagueness.” United States v. 
Woodard, 376 F. 2d 136, 145 (7th Cir., 1967) (concur­
ring opinion).

The Disorderly Conduct and Resisting Arrest Statutes 
Are Not So Vague As To Violate The Right Of Due Pro­
cess Of Law.

Defendant’s vagueness attack on the Disorderly Con­
duct statute centers upon the following italicized language:



30

“A  person commits disorderly conduct when he know­
ingly does any act in such unreasonable manner as to 
alarm or disturb another and to provoke a breach of the 
peace.”  111. Rev. Stat. ch. 38, § 26-l(a )(l) (1967). His 
challenge to the Resisting Arrest -statute is concerned with 
the term “ resists or obstructs” : “A person who
knowingly resists or obstructs the performance by one 
known to the person to be a peace officer of any au­
thorized act within his official capacity shall be fined not 
to exceed $500 or imprisoned in a penal institution other 
than the penitentiary not to exceed one year, or both.” 
111. Rev. Stat. ch. 38, § 31-1 (1967). The broad defect com­
mon to both laws, it is suggested by the defendant (p. 23 
of defendant’s brief), is that they vest the officer with 
unbridled discretion to act out his prejudices upon mi­
nority and disadvantaged peoples.

The latter argument has already been answered in the 
State’s reply to the overbreadth challenge. (See second sub- 
point of this section). As for the asserted indefiniteness of 
the use of “unreasonable” in the Disorderly Conduct pro­
vision, the term could just as ŵ ell have been deleted and 
the law would have implied its presence: “ Common sense 
. . . dictates that . . . conduct is to be adjudged to be dis­
orderly, not merely because it offends some -supersensitive 
hypercritical individual, but because it is, by its nature, 
of a sort that is a substantial interference -with (our old 
friend) the reasonable man.” People v. Harvey, 123 N.E. 
2d 81, 83 (N.Y. Ct. of App. 1954). To attempt a defini­
tion would be to attempt the impossible. There is no singu­
lar across-the-board interpretation which could be devised 
to cover the infinite number of factual situations to which 
the term is intended to have relation. As used in the 
statute, “unreasonable” inherently assumes a prospective 
specific setting or circumstance which is to be correlated



31

to some particular norm involved. Whether the defend­
ant’s conduct measures up to this norm, is a question to 
be decided in each individual case through the fact-finding 
process. This method of determining culpability has 
never met with dissent and has been affirmed by no less a 
Justinian than Mr. Justice Holmes: “ [T]he law is full of 
instances where a man’s fate depends on his estimating 
rightly, that is, as the jury subsequently estimates it, 
some matter of degree.” Nash v. United States, 229 U.S. 
373, 377 (1913); see also Codings, Unconstitutional Un­
certainty—An Appraisal, 40 Cornell L. Q. 195, 205 (1955).

The drafters to the Illinois Criminal Code were fully 
aware of the foppery in suggesting that the term be given 
meaning:

§ 26-1 (a) is a general provision intended to encom­
pass all of the usual types of “disorderly conduct” 
and “ disturbing the peace” . Activity of this sort is so 
varied and contingent upon surrounding circumstances 
as to almost defy definition. Some of the general 
classes of conduct which have traditionally been re­
garded as disorderly are here listed as examples: 
the creation or maintenance of loud and raucous 
noises of all sorts; unseemly, boisterous, or foolish 
behavior induced by drunkenness; threatening damage 
to property or indirectly threatened bodily harm 
(which may not amount to assault); carelessly or 
recklessly displaying firearms or other dangerous in­
struments; preparation for engaging in violence or 
fighting; and fighting of all sorts. In addition, the task 
of defining disorderly conduct is further complicated 
by the fact that the type of conduct alone is not de­
terminative, but rather culpability is equally depend­
ent upon the surrounding circumstances. * * * These 
considerations have led the Committee to abandon 
any attempt to enumerate “ types” of disorderly con­
duct. * * * What is reasonable must always depend



upon the particular case and therefore must be left 
to determination on the facts and circumstances of 
each situation as it arises. 111. Stat. Ann. ch. 38, 
§ 26-1, Committee Comments (Smith-Hurd, 1964).

The entire business of the criminal process is concerned 
with an after-the-fact analysis of allegedly “unreasonable” 
conduct. If it were possible to define the term, one statute 
would either clearly prohibit or clearly permit every con­
ceivable course of conduct, trials would be a thing of the 
past, and the criminal code system an anachronism of the 
times.

With respect to use of the term “ alarm” in the Disorder­
ly Conduct statute, its natural meaning is revealed in the 
synonymns “ fright, terror, consternation, apprehension, 
affright, dread, fear, panic” . Webster’s New Twentieth 
Century Dictionary. To “disturb” is “to throw into dis­
order; to interfere with; agitate; trouble” . Webster’s 
Third New International Dictionary. “Breach of the 
peace” “ embraces a great variety of conduct destroying or 
menacing public order and tranquility. It includes not 
only violent acts but acts and words likely to produce 
violence in others”. Cantwell v. State of Connecticut, 310 
U.S. 296, 308 (1940). While Edwards v. South Carolina, 
372 U.S. 229 (1963), and Cox v. Louisiana, 379 U.S. 536
(1965) , both involved the invalidation of common-law 
breach of the peace offenses, they are distinguishable be­
cause there the Supreme Court was vitiating the effect 
of statutes aimed and employed for the purpose of 
punishing peaceful expression of unpopular views. People 
v. Turner, 265 N.Y.S. 2d 841, 856 (Sup. Ct. 1965), affm’d 
17 N.Y. 2d 829, 218 N.E. 2d 316 (1966), cert. den. 386 
U.S. 773 (1967). Brown v. Louisiana, 383 U.S. 131
(1966) substantiates this distinction, in that while the 
Louisiana “breach of the peace” provision, like Illinois’



use of that term in its Disorderly Conduct statute, was 
not given statutory meaning, nevertheless the Court would 
have affirmed the conviction but for the fact that it con­
sidered the defendants’ “ silent and reproachful presence” 
in a segregated library to be first amendment conduct; 
at no time did the Brown majority indulge in a “vague­
ness” discussion. Id. at 141-42. The situation in Edwards 
and Cox, therefore, does not portend the invalidation of 
all statutes which employ the term “breach of the peace” . 
Those cases embraced a factual lay-out which is too far 
afield from the facts in the instant case, where a precisely- 
drafted provision was applied by the trial court to con­
duct that is clearly outside the protections of the first 
amendment. “ The present construction of the Illinois dis­
orderly conduct statute is to be contrasted with the fatally 
broad construction accorded by the Louisiana Supreme 
Court to that State’s breach of the peace statute in Cox 
v. Louisiana. . . .” United States v. Woodard, 376 F. 2d 
136, 145 (7th Cir. 1967) (concurring opinion).

All words are docile to a certain extent: “ But few words 
possess the precision of mathematical symbols, most stat­
utes must deal with untold and unforseen variations in 
factual situations, and the practical necessities of dis­
charging the business of government inevitably limit the 
specificity with which legislators can spell out prohibi­
tions.” Boyce Motor Lines, Inc. v. United States, 342 
U.S. 337, 340 (1952). The Constitution does not ask the 
impossible. United States v. Petrillo, 332 U.S. 1, 7-8 
(1947). The Seventh Circuit, in United States v. Wood­
ard, 376 F. 2d 136, 141-42 (7th Cir. 1967), found 
no vagueness in the statutory language of the Dis­
orderly Conduct provision: “ In short, we think the Illi­
nois statute, ‘when measured by common understanding 
and practices’, United States v. Petrillo, supra, provided



84

the defendants with adequate warning that their conduct 
was prohibited.” The Woodard court also noted that the 
terms “alarm or disturb” actually qualify the broader 
meaning of “breach of the peace.” Ibid. In sustaining, as 
against a vagueness challenge, New Jersey’s Disorderly 
Persons Act, which provides that a disorderly person is 
“ any person who by noisy or disorderly conduct disturbs 
or interferes with the quiet or good order of any place 
of assembly, public or private, including schools, churches, 
libraries and reading rooms . . .”, the State’s Supreme 
Court stated:

[The] defendant says the statute is void for vague­
ness because it does not spell out the degree of 
noise or the details of a disorder which will offend. 
Of course, the statute does not do so in specific terms, 
and it may be doubted that the ingenuity of man 
could meet that demand if the Constitution made it. 
But the Constitution does not insist upon the impos­
sible. It asks only what the subject will reasonably 
permit, and hence if there is a public interest in need 
of protection, due process does not stand in the way 
merely because the subject defies minute prescription. 
State v. Smith, 46 N.J. 510, 518, 218 A. 2d 147, 151 
(1966), cert. den. 385 U.S. 838 (1967).

Regarding defendant’s vagueness challenge to the “ re­
sists or obstructs” language found in the Illinois Resisting 
Arrest statute, the use of those terms has been specifically 
upheld in Landry v. Daley, No. 67 C 1863 (N.D. 111., filed 
March 4, 1968). Nothing need be added to what was said 
there:

This statute is designed to deter a person from re­
sisting or interfering with the acts of law enforce­
ment officials, simply on the basis of the person’s own 
conclusion as to the impropriety of the act. It thus 
furthers the legitimate state interest in protecting 
peace officers, preventing frustration of the valid en­



35

forcement of the law, and promoting orderly and 
peaceful resolution of disputes. * * * “Resisting” or 
“ resistance” means “withstanding the force or effect 
of” or the “ exertion of one self to counteract or de­
feat” . “ Obstruct” means “ to be or come in the way 
of” . These terms are alike in that they imply some 
physical act or exertion. Given a reasonable and 
natural construction, these terms do not proscribe 
mere argument with a policeman about the validity 
of an arrest or other police action, but proscribe only 
some physical act which imposes an obstacle which 
may impede, hinder, interrupt, prevent or delay the 
performance of the officers’ duties, such as going limp, 
forcefully resisting arrest or physically aiding a third 
party to avoid arrest, (pp. 40-42 of opinion. Emphasis 
supplied).

During the trial of this cause below, defendant asserted 
that the Resisting Arrest statute, as well as § 7-7 of the 
Criminal Code (“A person is not authorized to use force 
to resist an arrest which he knows is being made either 
by a peace officer or by a private person summoned and 
directed by a peace officer to make the arrest, even if he 
believes that the arrest is unlawful and the arrest in fact 
is unlawful.” ), were not intended to prohibit passive re­
sistance (Rec. 557-58; Abst. 1.54-55), because they had been 
drafted solely to overrule People v. Scalesi, 324 111. 131, 
154 N.E. 715 (1926), a case involving active resistance 
which the court there held permissible when the arrest was 
illegal. Defendant toys with words. If, as stated by Judge 
Will in the Landry case, one of the purposes of the Resist­
ing Arrest statute is to prevent frustration of the valid 
enforcement of the law, the potential for frustration is as 
much aided by one’s going limp as by unsuccessful affirm­
ative defiance. In both instances, more police officers, 
more time, and more exertion are required to effectuate 
the arrests, as contrasted to the typical situation where the



36

arrestee voluntarily surrenders his person to station-house 
custody. The hazard of violence is equally present in the 
one as in the other: “ For the policeman, this form of con­
duct [going limp] generates physical labor, hard and, in 
his view, unnecessary. When a citizen makes a policeman 
sweat to take him into custody, he has created the situa­
tion most apt to lead to police indignation and, anger,” 
Skolniek, Justice Without Trial 88 (1966). In sustaining Il­
linois’ Resisting Arrest statute, the Federal District Court 
in Landry did not hesitate to say it embraced “going limp” . 
P. 42 of opinion. The court in People v. Knight, 228 N.Y.S. 
2d 981, 987-88 (N.Y. City Magistrates Ct. 1962), reached 
the same conclusion, because the “arrested party has a 
duty to submit to a lawful and proper arrest.”  In Re Ba­
con, 240 Cal. App. 2d 34 (1966), and People v. Crayton, 
284 N.Y.S. 2d 672 (Supreme Ct. 1967) similarly consider 
“going limp” to be proscribed under a general “ resisting” 
category.

Even If The Disorderly Conduct Statute Could Not Be 
Said To Embrace Adequate Due Process Standards On 
Its Face, The Subject Matter Being Regulated Necessarily 
Requires A Scheme Of Law Administration Involving The 
Exercise Of Ad Hoc Judgment By The Police, And Be­
cause Defendant Was Apprised Of The Illegality Of His 
Conduct, Prior To His Arrest, He Thus Received Fair 
Warning That The Conduct Was Prohibited And There­
fore May Not Now Assert A Denial Of The Right To Due 
Process Of Law.

Even if the defendant were correct in his asserted vague­
ness attack upon the Disorderly Conduct provision, a good 
argument can be made that the subject matter of the 
statute, being so broad and diverse as it is, necessarily 
anticipates a certain degree of on-the-spot judgment by



police officers. Therefore, because the record (Bee. 288, 
337, 357, 414, and 459-60; Abst. 43, 53, 70, 101-103, and 
120) shows without rebuttal the testimony of five prosecu­
tion witnesses that the defendant was warned of an 
impending arrest if he persisted in sitting in the street 
intersection, defendant was given an authoritative and 
official construction of the statute by the police such that 
he was put on notice, before arrest, that his conduct 
was illegal. The United States Supreme Court indirectly 
endorsed this ad hoc judgment approach in Cox v. Loui­
siana, 379 U.S. 559, 568-70 (1965) where it noted that 
use of the language “near” in the Louisiana State statute 
prohibiting demonstrations “near” a courthouse, axio- 
matically foresaw a degree of on-the-spot administrative 
interpretation. As additional authority, Professor An­
thony G. Amsterdam has concluded from his research 
of United States Supreme Court cases that “ where the 
subject matter of regulation is such as to make unfeas­
ible modes of law administration other than those which 
involve ad hoc judgments, considerable pressures are 
created in favor of permitting an ad hoc judgment 
scheme.” Amsterdam, Void-For-Vagueness Doctrine in the 
Supreme Court, 109 U. Pa. L. B. 67, 95 (1960) Professor 
Alfred Kamin of Loyola University has posited the argu­
ment in necessity terms: “ Granting that the first amend­
ment may limit the exercise of municipal discretion in 
banning beforehand public gatherings . . ., some room must 
be left for administrative discretion of police on the scene 
of an active meeting or demonstration.” Kamin, Besi- 
dential Picketing and the First Amendment, 61 Nw. U. L. 
B. 177, 220 (1966).



38

II., V-

THE DISORDERLY CONDUCT AND RESISTING AR­
REST COMPLAINTS AND JURY INSTRUCTIONS 
WERE NOT ERROR SINCE THEY ADEQUATELY 
INSTRUCTED THE DEFENDANT AND THE JURY 
OF THE NATURE AND THE ELEMENTS OF THE 
OFFENSES CHARGED AND IN NO WAY PREJU­
DICED PUS DEFENSE,

As was discussed in the above arguments, neither the 
disorderly conduct nor the resisting arrest statute are 
so vague that a reasonable man of ordinary intelligence 
cannot know whether a particular act, in the context of the 
situation, is prohibited. Neither are the statutes over­
broad in the sense that they have allowed a pattern of en­
forcement or, in the absence of a pattern of enforcement, 
that the natural and reasonable construction of the lan­
guage of the statutes would allow punishment for the 
exercise of constitutionally protected rights.

THE COMPLAINTS

Since the words of these statutes are not vague and 
reasonably put one on notice of what is unlawful, it is 
axiomatic that complaints phrased in the words of these 
statutes along with the name of the offense charged, the 
citation to the applicable statute, the date and place of the 
alleged offense, and the name of the accused sufficiently 
specify the offenses charged. This conforms to the statu­
tory standard:

A charge shall be in Avriting and allege the com­
mission of an offense by :
(1) Stating the name of the offense;



39

(2) Citing the statutory provision alleged to have 
been violated;

(3) Setting forth the nature and elements of the of­
fense charged;

(4) Stating the time and place of the offense as defi­
nitely as can be done; and

(5) Stating the name of the accused, if known, and 
if not known, designate the accused by any name 
or description by which he can be identified with 
reasonable certainty. 111. Rev. Stat. eh. 38, § 111- 
3 (a), (1967).

Since criminal procedure is not a game to be played 
between the accused and the state, the accused who feels 
inadequately informed of the offense charged may move 
the court to order a bill of particulars to be provided:

When . . .  [a] complaint charges an offense in ac­
cordance with the provisions of Section 11-3 of this 
code but fails to specify the particulars of the offense 
sufficiently to enable the defendant to prepare his 
defense the court may, on written motion of the de­
fendant, require the State’s Attorney to furnish the 
defendant with a Bill of Particulars containing such 
particulars as may be necessary for the preparation 
of the defense. At the trial of the cause the State’s 
evidence shall be confined to the particulars of the 
bill. 111. Rev. Stat, ch. 38, § 111-6, (1967)

The defendant objected to the sufficiency of the com­
plaint on its specificity, the People suggested that the 
defendant’s remedy was a bill of particulars and the court 
so ruled. (Rec. 228, 231, 234; Abst, 25-28, 30) The defend­
ant rejected this because, since he assumed the complaint 
to be insufficient on its face, he did not wish to lend the 
complaint any sufficiency. (Rec. 235; Abst. 30)

Only last fall, this court was presented with a similar 
argument upon remarkably similar facts. In City of Chi­



40

cago v. Joyce, 38 ILL 2d 368; 232 N.E. 2d 289, (1967), 
the defendant was engaged in a civil rights protest at Chi­
cago’s City Hall. To protest the alleged arrest of some of 
her fellow demonstrators, the defendant sat down in the 
middle of the sidewalk (only a few yards from the inter­
section where Mr. Baby sat or lay) interlocked her arms 
and legs with some of her fellow demonstrators and 
began to sing loudly. She and the other demonstrators 
were warned to cease their loud singing and blocking the 
sidewalk or they would be arrested. After not complying 
with the orders of the police, the demonstrators were ar­
rested, and Miss Joyce went limp whereupon she had to be 
carried to a police van. 38 111. 2d at 370-371.

After her conviction, Miss Joyce appealed to this court 
alleging “ that she was deprived of her right of free 
speech, that the applicable ordinance is void for vague­
ness, that the complaints were not sufficiently specific . . .” 
Id. at 369. The Court rejected all of her contentions in 
affirming the conviction:

[T]he defendant’s conduct in sitting on the side­
walk, blocking the entrance to the city hall and ob­
structing pedestrian traffic has no connection with 
the constitutional protections [free speech] she seeks 
to invoke.

Defendant next insists that the ordinances she was 
found to have violated are unconstitutionally vague. 
It does not appear that the objection was raised or 
passed upon in the trial court, and there is thus no 
ruling on review, [citing cases] We have neverthe­
less considered defendant’s argument and find it to be 
without merit.

The contention that the complaints are not suffi­
ciently specific must also be rejected. The one alleges, 
inter alia, that defendant committed disorderly conduct 
by making or aiding in making an improper noise or



41

disturbance, and the other charges that she willfully 
and unnecessarily hindered, obstructed and delayed 
persons lawfully traveling along the sidewalk. The 
date and place are specified in each. The appellant 
nowhere explains how she was misled or inadequately 
informed of the charges against her, and it is plain 
that both she and her counsel were well aware of the 
particular conduct which brought about the arrest. The 
complaints adequately advised the defendant of the 
nature of the offenses and were sufficient to enable her 
to prepare a defense. I f defendant felt that a more 
detailed statement was necessary a motion to that 
effect could have been made. This she did not do. 
Under such circumstances there is no basis for claim­
ing on review that the complaint is not specific enough. 
Id. at 371-372; emphasis added.

Here, as in Joyce, the complaints are sufficient on their 
face. (See Appendix A) -Here, the defendant was invited 
to request a bill of particulars but did not do so. Con­
trary to the situation in Joyce, defense counsel has made 
a good record of his objections regarding the defendant’s 
supposed lack of knowledge of the charges against him 
but this is mere pretense. The record is rife with testi­
mony, and even admissions by the defendant (e.g., Bee. 
825, 837, 849, 850; Abst, 258-259, 261-262), that he did, in 
fact, sit down in the intersection and upon arrest went 
limp and was carried away. A cursory reading of the 
record will demonstrate that, rather than cast doubt upon 
the guilt of the defendant, defense strategy was to confuse 
the jury with testimony regarding alleged racial segrega­
tion in Chicago schools, alleged police brutality, and the 
defendant’s good reputation. Nowhere was it contended 
that the defendant did not commit or did not intend to 
commit the offenses for which he was being prosecuted.

The defendant argues that he does not even now know 
whether he was convicted of disorderly conduct for making



42

the speech that he made shortly before (and one half block 
away from where) he sat down in the intersection, al­
though the complaint clearly states that the situs of the 
offense was the intersection. The record demonstrates 
that this is pure sophistry.

The defendant complains that he might be subjected to 
double jeopardy for the offenses for which he is here 
convicted. What the defendant is doing here is admitting 
that he committed other offenses of disorderly conduct 
and resisting arrest at Randolph and La Salle Streets 
on June 28, 1965, and then attempting to foreclose other 
prosecutions (or this prosecution) by his failure to secure 
a bill of particulars. Surely this court will not allow the 
defendant to overturn his convictions for two offenses by 
admitting that he committed other unnamed offenses at the 
time and place for which he may be prosecuted.

The court in City of Chicago v. Lambert, 47 111. App. 
2d 151; 197 N.E. 2d 448 (1964), was faced with similar 
arguments regarding the sufficiency of complaints charging 
criminal defamation under the State statute and disorderly 
conduct under Chicago ordinance. The court said:

[W]e believe the entire record before us would pre­
vent any subsequent prosecution of these defendants 
for the same offenses. We believe that defendants’ 
rights to a fair trial have not been violated. In Smith 
v. United States, 360 U.S. 1, at page 9, 79 S. Ct. 
991, at page 996, 3 L. Ed. 2d 1041 the court said: ‘ [The 
Supreme Court of the United States] has, in recent 
years, upheld many convictions in the face of ques­
tions concerning the sufficiency of the charging papers. 
Convictions are no longer reversed because of minor 
and technical deficiencies which did not prejudice the 
accused. * * * This has been a salutary development 
in the criminal law.’ Niceties and strictness of plead­
ings are supported only when defendants would be



43

otherwise surprised on trial or unable to meet the 
charges or prepare their defenses. People v. Wood­
ruff, 9 111. 2d. 429, 137 N.E. 2d 809 (1957); People 
v. Nastario, 30 111. 2d 51, 195 N.E. 2d 144 (1963).

The cases cited by the defendant in support of his 
proposition that the complaints are not sufficiently specific 
state the past Illinois law applicable to the facts of those 
cases but all are distinguishable from the instant case. 
It is quite likely, for instance, that the statute under which 
the defendant in People v. Brown, 336 111. 257, 168 N.E. 
289 (1929), was convicted would today be found void for 
vagueness. In that case the court said that:

The general rule is that it is sufficient to state the 
offense in the language of the statute, but this rule ap­
plies only where the statute sufficiently defines the 
crime. Where the statute creating the offense does 
not describe the act or acts which compose it, they 
must be specifically averred in the indictment or in­
formation. [citing cases] 336 111. at 258-259.

None of these cases deal with violations of the disor­
derly conduct or resisting arrest statutes. People v. Col­
lins, 35 111. App. 2d 228; 182 N.E. 2d 387 (1962), was a 
proposecution for the performance of lewd and indecent 
acts and the complaint failed to allege an essential portion 
of the statute in its language. People v. Brown, supra, 
was a prosecution for practicing medicine without a li­
cense. People v. Peters, 10 111. 2d 577; 414 N.E. 2d 9 
(1957), was a prosecution for the unauthorized and fraud­
ulent practice of law. People v. Williams, 30 111. 2d 125; 
196 N.E. 2d 483 (1963), was a prosecution for an at­
tempted burglary in which the complaint failed to dis­
close the address of the place which the accused allegedly 
attempted to burglarize. People v. Flynn, 375 111. 366;



44

31 N.E. 2d 591 (1941), was the prosecution of the Mayor 
of Champaign for non-feasance in office.

As the first argument in this brief has demonstrated, 
the Disorderly Conduct statute is worded in such a way as 
to proscribe only actions which tend to disturb others and 
provoke disruptions of public order when such actions are 
unreasonable in the context of the particular situation. 
See 38 S.H.A. § 26-l(a), Committee Comments (1967). At 
least one higher court has found this purpose and method 
of legislation to pass the constitutional prohibitions against 
vague legislation. United States v. Woodard, 376 F. 2d 
136 (7th Cir. 1967) Because of the subject matter of the 
offense of disorderly conduct, law governing the specifi­
city of complaints charging other offenses should not ipso 
facto determine the specificity essential to a disorderly 
conduct complaint.

THE INSTRUCTIONS

The defendant, at page 43 of his brief, states the propo­
sition that “ [i]f the complaints in the instant case are 
defective and constitutionally void, in that they wholly 
fail to inform the defendant of the nature and elements 
of the charge(s) against him a fortiori the instructions 
given to the jury are equally defective and constitution­
ally void,” because the instructions are worded in the 
language of the complaints. This is true and so is the 
corollary that if the complaints adequately informed the 
defendant of the nature and the elements of the offenses 
charged a fortiori the instructions given to the jury are 
equally adequate. Since the above argument on the suf­
ficiency of the complaints demonstrates their adequacy, the 
instructions are equally adequate. It need hardly be men­
tioned that, since the complaints and, in turn, the instruc­
tions were worded in the language of the statutes, the



45

statutes must first pass constitutional muster in order to 
validate the instructions, c.f. Terminiello v. City of Chi­
cago, 337 U.S. 1; 69 S. Ct. 894 (1949).

The defendant argues that the instructions here were 
inadequate and therefore warrant reversal on the case 
of People v. Davis [74 111. App. 2d 450; 221 N.E. 2d 63 
(1966)]. The People have no dispute with the holding of 
Davis but find it wholly inapposite to the instant case. 
Davis was a prosecution for the offense of attempt to com­
mit robbery. 111. Rev. Stat. ch. 38, §§ 8-4, 18-1, (1967). 
The complaint or indictment was evidently sound but the 
jury was instructed:

The jury are instructed that a person commits an 
attempt when, with intent to commit a specific offense, 
he does any act which constitutes a substantial step 
toward the commission of that offense. 74 111. App. 
2d at 452; court’s emphasis.

Nowhere in any of the jury instructions was the word 
robbery mentioned or in any way was the jury instructed 
as to what the accused had allegedly attempted. This case 
has no application to the instant ease where the complaints 
are adequate and the instructions are in the language 
of the statutes and the complaints.

In giving the State’s instruction number 17, the court 
adopted the rule of People v. Knight, 35 Misc. 2d 218; 
228 N.Y.S. 2d 981 (N.Y. City Magistrates Court (1962), 
to the effect that “going limp” upon arrest and forcing 
the police to physically carry the arrestee into custody is, 
as a matter of law, resisting arrest. The court instructed 
the jury:

The Court instructs the jury, as a matter of law, 
that resisting a peace officer in the performance of his 
duty may be passive as well as active. To interfere



46

and obstruct does not require active resistance and 
force. (Supp. Rec. 20; Abst. 339-340)

This interpretation that “going limp” constitutes resisting 
arrest was not error (see argument I, this brief) and re­
flects the trend in the law of resisting arrest. See Lan­
dry v. Daley, No. 67 C 1863 (N.D. 111., filed March 4, 1968) 
p. 42; In Re Bacon, 240 Cal. App. 2d 34; 49 Cal. Rptr. 
322 (1966); People v. Crayton, 284 N.T.S. 2d 672 (Sup. 
Ct. 1967); People v. Knight, supra; People v. Martinez, 
43 Misc. 2d 94; 250 N.Y.S. 2d 28 (N.Y. City Crim. Ct. 
1964).

The allegation of the defendant (pp. 47-50, defendant’s 
brief) to the effect that State’s Given Instruction 17 would 
allow the jury to convict the defendant of Obstructing or 
Resisting arrest (State’s Given Instruction 16; Supp. Rec. 
19; Abst. 339) under any set of facts is absurd. The term 
“passive resistance” is in common parlance and this re­
viewing court cannot assume that the jury did not under­
stand its meaning, especially in light of the facts brought 
out by the testimony.

I I I .

THE AMENDMENT OF THE COMPLAINT DID NOT 
VIOLATE THE DEFENDANT’S RIGHTS SINCE THE 
STRICKEN PORTION CONSTITUTED A MERE 
FORMAL DEFECT TO AN OTHERWISE CLEAR 
AND UNAMBIGUOUS CHARGE.

On September 13, 1966, after the selection of the jury, 
the State sought leave to amend the complaint against 
the defendant charging him with resisting arrest. (See 
Appendix A). The motion was granted. (Rec. 238-244; 
Abst. 33-36). The complaint contained two allegations re­
garding defendant’s actions at the time of arrest. The



47

first charged that the defendant “ refused to voluntarily 
accompany [the] arresting officer and had to be physically 
carried away.” This charge was repeated in the second 
part of the complaint and then followed by the allegation 
that the defendant struggled to escape custody. (Rec. 33; 
Abst. 4). Although two separate classes of activities 
were alleged, only one charge was made, viz. Resisting 
or Obstructing a Peace Officer in Violation of Chapter 38, 
Section 31-1 of the Criminal Code. 111. Rev. Stat., eh. 
38, $ 31-1 (1967).

At trial the defendant observed that the second allega­
tion could be construed as a separate offense under Sec­
tion 7-7 of the Criminal Code referring to a Private Per­
son’s Use of Force in Resisting Arrest. (Rec. 236-238; 
Abst. 31-32). Even though no such charge was made, the 
defendant complained that he could not prepare a defense 
because he could not be sure whether he was charged under 
both Sections, i.e., 31-1 and 7-7.

Since the State did not charge the defendant with an 
Article 7 violation and, a fortiori, did not seek to offer 
proof of such an offense, the charges made in the second 
part of the complaint constituted surplusage. Recognizing 
this fact, the State moved to amend the complaint by 
striking the portion which alleged that the defendant had 
attempted to escape custody. This motion was consistent 
with Section 111-5(d) of the Criminal Code which per­
mits the State’s Attorney to amend a complaint at any 
time in order to correct a formal defect. Among those 
defects which are considered “ formal” is the presence of 
any unnecessary allegation.

The defendant asserts that such an unnecessary allega­
tion constitutes a substantive defect. This assumes the 
validity of his own construction of the second part of the



48
complaint. He was charged with the sole violation of re­
sisting arrest. Any inferences drawn in reference to Ar­
ticle 7 of the Code are the products of his own interpre­
tation. They do not conflict with the singular references 
to Section 31-1 appearing in the complaint. All necessary 
elements of the crime of resisting arrest are enumerated 
in the complaint. Extraneous verbiage which is unrelated 
to any charged offense cannot create a substantive defect 
in a complaint which competently alleges a single offense.

The State has searched the Record and is unable to 
detect any amendment to the Disorderly Conduct complaint 
as mentioned on page 33 of the defendant’s brief. At 
page 33 the defendant refers the reader to Section II of 
his brief for elaboration on this point. Again no reference 
to the alleged amendment can be found. Defendant then 
suggests that the reader examine State’s Given Instruction 
Number 17 which he asserts can be found on page 338 
of the Abstract. At page 338 the reader will find State’s 
Given Instructions 13 and 14 which refer to the elements 
of disorderly conduct as contained in the original com­
plaint. No reference is made to any subsequent amend­
ment thereto. State’s Given Instruction Number 17 ap­
pears at page 339 of the Abstract and is in reference to the 
Resisting Arrest complaint. Having offered no source 
for his contention that the Disorderly Conduct complaint 
was, in fact, amended, the defendant nevertheless ad­
vances the argument that, “ This amendment was clearly 
erroneous and requires reversal.”

It is the State’s position that the Disorderly Conduct 
complaint was not amended and further, that there was no 
need for same. The complaint contained all of the ele­
ments of the State Statute and stated the nature of the 
defendant’s alleged violation, viz., collecting in a crowd 
or body for unlawful purposes to the annoyance or dis­



49

turbance of other persons. Having been informed of both 
the elements of the offenses and the specific conduct relied 
upon by the State, the defendant was sufficiently apprised 
of the nature of the charge. He was aware that the bur­
den of proof was on the State to prove the allegations con­
tained in the complaint and that the evidence presented 
would go to the specific conduct mentioned in the com­
plaint. If the defendant required greater clarity it was 
his duty to request a Bill of Particulars under Section III 
6 of the Code of Criminal Procedure.

The form employed by the State in its complaint was 
within tradition and custom used in Illinois. The same 
defense of ignorance put forth by the defendant in this 
case was asserted in People v. Mamolella, 85 111. App. 2d 
240, 229 N.E. 2d 320 (1967). In that case a complaint 
charging the accused with wagering was held sufficient 
on the bases of stating the name of the offense, citing the 
statutory provision, setting forth the elements of the 
crime, the time and place of occurrence and the name of 
the suspect. This case is typical of a long line of prece­
dent upholding the quantum of specificity necessary to 
support a complaint. The defendant cannot rely on his own 
views as to the requirements of a complaint when he has 
ignored precedent and accepted custom. Nor can be plead 
confusion as to the content of the complaint after failing 
to pursue the statutory relief provided.



50

I V .
THE ADMISSION OF THE STATE’S AMENDED LIST 

OF WITNESSES DID NOT VIOLATE THE DEFEND­
ANT’S RIGHTS SINGE THE WITNESSES WERE 
PREVIOUSLY UNKNOWN TO THE STATE AND 
SINCE HE HAS NOT SHOWN HOW PRIOR KNOWL­
EDGE OF THEIR IDENTITIES WOULD HAVE BET­
TER ENABLED HIM TO MEET THEIR TESTI­
MONY.

On September 13, 1966, after the jury had been im­
paneled and immediately before the trial began, the State 
presented defense counsel with an amended list of wit­
nesses. The list contained the names of four police officers 
of the Chicago Police Force who had been present at the 
scene of the defendant’s arrest. (Ree. 90, 249; Abst. 8, 
39-40). The testimony of these officers was supplementary 
and largely cumulative to that of Mr. Becker who was the 
original arresting officer and whose name had been given 
to defense counsel on January 20, 1966. The defendant 
objected to the admission of the amended list on ground 
that he was unprepared to meet their testimony. (Rec. 249; 
Abst. 39-40). The trial court overruled the defendant’s 
objection on this occasion and on each subsequent occasion 
that the objection was renewed, i.e., prior to the testimony 
of each witness named in the amended list.

According to Chapter 38, Section 114-9(b) of the Illi­
nois Criminal Code, a trial court may permit witnesses 
not previously named to testify when their names were not 
known and could not have been obtained through the ex­
ercise of due diligence prior to trial. Mr. Karton, counsel 
for the State, informed the court that he did not know of 
the supplementary witnesses until the day before trial



51

began. He stated further that the defendant was sup­
plied with the amended list as soon as he (counsel for the 
State) found out about them. (Eec. 402-403; Abst. 97). 
The trial Judge, in the exercise of his discretion, found 
that the State acted in conformity with the statute. (Eec. 
405; Abs. 98-99).

The defendant has asserted that the actions of the State 
disadvantaged him in the preparation of his case. As­
suming hypothetically that there were no applicable stat­
ute, the State would still be unable to accept the defend­
ant’s argument. Mere knowledge of the identities of the 
prosecution’s witnesses does not enable the accused to 
prepare a more adequate defense. The defendant did not 
have a right to pre-trial discovery of State’s witnesses’ 
testimony. Nor was there any authority vested in the de­
fendant to take depositions from such witnesses. The 
additional witnesses who testified against the accused 
could not have prejudiced his case merely because 
they were named after the trial commenced. All 
of the State’s supplementary witnesses were police 
officers who stand in virtually the same relation­
ship with the defendant as did the previously named of­
ficer.

As the defendant has noted in his brief at page 36, the 
statutory authority of the State to amend its list of wit­
nesses is governed by the broad discretion of the trial 
judge. The defendant correctly points out that only once 
during this century has an Illinois reviewing court re­
versed a decision on the basis of prejudicial additions to 
the State’s list of witnesses. People v. O’Hara, 332 111. 
436, 163 N.E. 804 (1928). In that case the additional wit­
nesses produced by the prosecution consisted of accomp­
lices in a bank robbery and convicted felons. Their testi­



52

mony was uncorroborated and of doubtful character. 
Moreover, the evidence was “ extremely close.” O’Hara, at 
page 466. Although the conviction was reversed, the Su­
preme Court noted that it is the general rule that “ [A 
trial court,] in the exercise of a sound discretion and hav­
ing a strict and impartial regard for the rights of the com­
munity and the prisoner, may permit such other witnesses 
to be examined as the justice of the case may seem to 
require.” O’Hara, page 447.

The broad discretion placed with the trial judge has a 
broad foundation in the principles of the judicial process. 
As the Court observed in affirming a murder conviction in 
People v. Weisberg, 396 111. 412, 421, 71 N.E. 2d 671 
(1947):

[T]o deprive the judge of this discretion might re­
sult in great injustice to the People, as, in the event 
of an adverse verdict, they cannot obtain a new trial, 
while, on the other hand, the defendant may not only 
obtain a new trial, but may have his case reviewed 
upon writ of error.

The defendant’s brief contains several accusations that 
the State actively concealed the identities of the four ad­
ditional police officers who testified on behalf of the Peo­
ple. This was denied by the State. The defendant has of­
fered no evidence to refute this denial and has not ad­
vanced any theory as to a possible motive for delaying the 
announcement of such witnesses. He has not shown how 
prior knowledge of their identities would have better en­
abled him to meet their testimony.

The defendant next moves to the constitutional argu­
ment that the submission of the amended list of witnesses 
during trial denied his right to confront the witnesses 
against him. The defendant implies the concealment of



53

witnesses without making an express accusation. In the 
absence of such a contention, the defendant is left with 
the anomalous argument that he was denied the right to 
confront the witnesses against him by being informed of 
same.

In advancing his argument that the admission of the 
supplementary testimony violated his right to confront 
the witnesses against him, the defendant urges that his 
case falls within the combined scope of three recent Su­
preme Court cases involving the opportunity of cross- 
examination. Pointer v. Texas, 380 U.S. 400 (1965); Doug­
las v. Alabama, 380 U.S. 415 (1965); and United States 
v. Wade, 388 U.S. 218 (1967). It is the State’s position 
that the present case is well beyond the reach of those 
decisions.

In Pointer v. Texas, the defendants were convicted of 
robbery largely on the basis of testimony elicited from 
a witness at a preliminary hearing at which they were not 
represented by counsel. The witness was not available at 
the time of trial. The court admitted a transcript of his 
testimony into evidence. The Supreme Court reversed on 
grounds that the defendants were denied their rights of 
cross-examination since they were not represented by 
counsel at the preliminary hearing and because it would 
be impossible to cross-examine the transcript.

In Douglas v. Alabama, the defendant was convicted 
of assault with intent to murder. The confession of his 
previously (and separately) convicted accomplice was read 
into the record since the accomplice refused to testify on 
ground of self-incrimination. The confession recited the 
events surrounding the crime and named the defendant 
as the person who fired the fatal shotgun blast. As in the 
Pointer case, the defendant could not cross-examine the



54

written confession. Further, the prosecuting attorney could 
not be cross-examined because he was not a witness. Sim­
ilarly, the accomplice could not be cross-examined on a 
statement imputed to, but not admitted by him. The Su­
preme Court reversed the conviction holding that the de­
fendant was denied his rights under the Sixth Amendment 
since the inferences of guilt drawn from the accomplice’s 
confession could not be tested by cross-examination.

In United States v. Wade, the accused was identified 
in open court as a perpetrator of a bank robbery. The 
defendant, however, had been exhibited to the witnesses 
before trial at a post-indictment lineup conducted for 
identification purposes without notice to and in the absence 
of the accused’s appointed counsel. The Supreme Court 
reversed Wade’s conviction adopting the theory that the 
assistance of counsel at the lineup was indispensable to 
the protection of his right to a fair trial at which the wit­
nesses against him might be meaningfully cross-examined.

Each of these cases turn on the necessity of having the 
presence of counsel at “ critical” stages of the criminal 
process. The benefit of such counsel is two-fold: First, it 
protects the suspect’s privilege against self-incrimination 
whenever challenged, and second, it assures him his Sixth 
Amendment right “ . . . to have the Assistance of Counsel 
for his defense.” In the case at hand neither of these 
benefits were denied the defendant. There was no challenge 
of his privilege against self-incrimination and he was rep­
resented by able counsel for his defense. He was in no way 
barred from conducting an effective cross-examination 
of the supplementary witnesses and has suggested no 
basis for impeaching their testimony. There were no pre­
trial occurrences which would nullify cross-examination 
(Pointer and Douglas), there were no absent or silent wit­
nesses (Pointer and Douglas), nor were there any docu­



55

ments which would not permit cross-examination (Pointer 
and Douglas). The fact that the defendant theorized that 
he might, have been able to prepare a better defense does 
not permit a reversal under a. constitutional guarantee 
based on the test of whether the accused was unable to con­
duct a sufficient defense.

The defendant’s only remaining argument is that his 
chances of acquittal were destroyed by the corroborative 
testimony of the four supplementary witnesses. The 
State entertains no doubt that the eye-witness testimony 
of four veteran policemen who participated in the arrest 
of the defendant in the presence of several hundred on­
lookers would be damaging to his case. The State cannot 
agree, however, that the weight of this testimony provides 
ground for reversal. The defendant has not attempted to 
show how he might have countered the officers’ testimony. 
In the absence of such a showing there can be no basis 
for reversible error.

V I .
DEFENDANT’S CONSTITUTIONAL EIGHT OF DUE 

PROCESS WAS NOT INFRINGED BY THE TRIAL 
COURT’S REFUSAL TO ADVISE THE JURY THAT 
THEY WOULD HAVE TO ASCERTAIN DEFEND­
ANT’S STATE OF MIND BY LOOKING TO HIS CON­
DUCT, OR BY THE COURT’S REFUSAL TO IN­
STRUCT THE JURY AS TO DICTIONARY MEAN­
INGS OF THE RESISTING ARREST STATUTORY 
LANGUAGE “ RESISTS OR OBSTRUCTS”, BECAUSE 
THE SUBJECT MATTER OF BOTH TENDERED IN­
STRUCTIONS WAS EMBRACED IN OTHER GIVEN 
INSTRUCTIONS.

Defendant’s refused instruction no. 1 (Supp. Ree. 32; 
Abst. 343) would have informed the jury that no offense



56

can be committed without an intent, and in determining 
the state of mind of the defendant at the time of the alleged 
acts which gave rise to the Disorderly Conduct and Re­
sisting Arrest charges (111. Rev. Stat. ch. 38, $§ 26-1(a)- 
(1), 31-1 (1967)), they would necessarily have to look at 
the facts and circumstances of his conduct because “ it is 
not possible to look into a man’s mind . . Initially, 
one fault with this instruction is that it suffers from bad 
law. There are some crimes which impose absolute liabil­
ity (defined in 111. Rev. Stat. ch. 38, § 4-9 (1967). This 
Court long ago recognized the validity of the guilt without 
intent concept:

Where a specific intent is not an element of the 
crime it is not always necessary that a criminal intent 
should exist. In the exercise of the police power for 
the protection of the public the performance of a speci­
fic act may constitute the crime regardless of either 
knowledge or intent, both of which are immaterial on 
the question of guilt. People v. Fernow, 286 111. 627, 
630, 122 N.E. 155 (1919). See also People v. Billar- 
dello, 319 111. 124, 149 N.E. 781 (1925); 111. Rev. Stat. 
ch. 38, § 4-9, Committee Comments (1964, Smith- 
Hurd).

Instructions which were given, relating to the subject 
matter of defendant’s refused instruction no. 1, are State’s 
instructions nos. 13-16 and defendant’s given instruction 
no. 11 (Supp. Rec. 16-19, 27; Abst. 338-39, 341). The 
State’s instructions informed the jury that defendant was 
charged with violating the Disorderly Conduct and Re­
sisting Arrest statutes, and substantially duplicated the 
language of those two offenses, including their require­
ment that the illegal act be done “knowingly”. Defendant’s 
given instruction no. 11 then noted that the jury could not 
convict until the State had proven every material fact 
necessary to constitute the offenses charged, and in effect



thereby enlightened the jury on its duty regarding the 
mental element of both crimes.

The fact that the trial court carried out its mandatory 
duty to the jury of defining and explaining the crimes for 
which defendant was on trial, by duplicating the exact 
words of the statutes involved, was not at all unfair or 
improper where no extraneous statutory matter was in­
cluded which might have misled the jury. People v. Lyons, 
4 111. 2d 396, 122 N.E. 2d 809 (1954). And because it will 
not be presumed that a jury failed to follow the court’s 
instructions, Hall v. Chicago & N.W. By., 5 111. 2d 135, 125 
N.E. 2d 77 (1955), it is apparent from the instructions 
actually given, that the issue of whether the defendant 
“knowingly” committed the offenses charged was passed 
upon by the jury in reaching its verdict, so that defendant 
can hardly claim lack of due process on that account. The 
instructions which were in fact given, bring into play the 
well recognized rule that denial of a requested instruction 
is not error where the subject matter is covered by other 
instructions. People v. Cavaness, 21 111. 2d 46, 171 N.E. 
2d 56 (1961); People v. Thompson, 81 111. App. 2d 263, 226 
N.E. 2d 80 (1967). What happened, very simply, was that 
the jury found the requisite intents by inference from the 
conduct involved (an entirely proper method—see p. 51 of 
defendant’s brief) because, as pointed out in defendant’s 
refused instruction no. 1, they obviously found it impos­
sible to peer into the defendant’s mind. What defendant’s 
complaint thus boils down to is that the jury should have 
been told the obvious. However, “ instructions are required 
only on matters about which there is some issue to be pre­
sented to the jury, and they need not cover matters ad­
mitted or established beyond dispute [or] a manifest truth 
apparent to any intelligent man . . .” C.J.S. Criminal Law 
§ 1190 (a), at 476-77 (1961).



Regarding the defendant’s refused instruction no. 15 
(Supp. Rec. 36-37, Abst. 345), it admonished the jury to 
consider the natural, dictionary meanings of the word “ re­
sist” before determining the issue of whether defendant 
had indeed resisted arrest, and then incorporated some of. 
those dictionary definitions. Surely defendant will not 
quarrel with the division of duties regarding judge and 
jury: “ Questions of law shall be decided by the court and 
questions of fact by the jury.” 111. Rev. Stat. eh. 38, § 115- 
4(a) (1967). Yet his instruction ignores this division and 
attempts to give to the jury the duty of defining the statu­
tory term “ resist” , by commanding that they “ apply the 
plain, ordinary, everyday meaning of the term” . The 
function of defining statutory terms is properly performed 
by the court, whose duty is to decide questions of law. In 
Illinois, in fact, this obligation assumes a constitutional 
cloak: ' “ The interpretation of statutes, the determination 
of their validity, and the application of the rules and prin­
ciples of the common law, among others, are inherently 
judicial functions.” People v. Bruner, 343 111. 146, 158, 
175 N.E. 400 (1931) (declares unconstitutional a law pro­
viding for juries to decide questions of both law and fact). 
The trial court in this cause recognized its responsibility 
and delivered an instruction that “ resisting a peace officer 
in the performance of his duty may be passive as well as 
active. To interfere and obstruct does not require active 
resistance and force” . State’s Given Instruction No. 17, 
Supp. Rec. 20-21, Abst. 339-40. Having done so, that there 
is no breach of due process for a court to decide questions 
of law is too pure a truth to elevate to the level of argu­
ment. Defendant is incorrect, therefore, in asserting that 
failure to allow the jury to render its own construction of 
the statute is a violation of due process standards. Nor 
can he argue that the court’s definition reaches into



59

the jury function, for it is still a jury question whether 
defendant passively or actively resisted at all. His argu­
ment thus comes down to a mere disagreement with the 
definition, namely: is the language of the Resisting Arrest 
statute in conjunction with the given instruction sufficient 
to dispel the Herndon v. Lowry challenge, 301 U.S. 242, 263 
(1937) that it unconstitutionally licenses the jury to create 
its own standard? The State has replied to this point at 
the fourth sub-point of the first section of this brief, where 
it demonstrated that the language “ resists or obstructs” 
does

not prescribe mere argument with a policeman about 
the validity of an arrest or other police action, but 
prescribes only some physical act which imposes an 
obstacle which may impede, hinder, . . .  or delay the 
performance of the officers’ duties, such as going limp, 
forcefully resisting arrest or physically aiding a third 
party to avoid arrest. Landry v. Daley, No. 67 C 
1863 (N.D. 111., filed March 4, 1968). (See also Point 
11-The Complaints-this brief.)

V I I .

DEFENDANT’S INSTRUCTION NUMBER 10 WAS 
CORRECTLY EXCLUDED SINCE IT WAS DUPLICI­
TOUS AND ERRONEOUS IN ITS INCLUSION OF A 
REFERENCE TO A WITNESS’S FINANCIAL IN­
TEREST IN THE RESULT OF THE CASE.

Defendant’s Instruction Number 10 (Supp. Rec. 35; 
Abst. 344) relating to the credibility of witnesses was 
refused on the ground that it was duplicitous of State’s 
Instruction Number 5 (Sup. Rec. 9; Abst. 336) and that 
it incorrectly stated the law (Rec. 515-516; Abst. 141-142).

The “ objectionable” statement in the Defendant’s In­
struction was that the jury might discredit a witness



60

if they found that he had an interest “ in the result of 
the suit” from “a financial point of view.” As the trial 
judge noted, in a criminal case “ A financial instruction 
is not involved.” (Eec. 516; Abst. 141).

The object of the defendant’s instruction was the wit­
ness Becker who was informed by the State that he would 
be paid for the time involved in making his court ap­
pearance. (Bee. 361; Abst. 72). From this fact the de­
fendant deduced that the witness had a financial interest 
in the result of the case. This conclusion is illogical and 
unsupported by the evidence. The trial judge correctly 
ruled this to be a fatal defect in the defendant’s instruc­
tion.

Defendant’s argument that the State’s instruction was 
too abstract is but an opinion on his part. Although very 
slight evidence will justify the giving of an instruction, 
the defendant cannot assume his own facts. The instruc­
tion must find its basis in the evidence presented or in a 
state of facts which the jury can legitimately infer from 
such evidence. The unsupported opinions of counsel can­
not form the basis of an instruction. The function of an 
instruction is to inform the jury of the law relating to the 
case at hand and to assist them in applying it to the evi­
dence before them. Lauder v. People, 104 111. 248 (1882). 
It is within the discretion of the trial judge to determine 
whether a tendered instruction achieves these objectives. 
If counsel believes that the trial judge has decided incor­
rectly, it behooves him to muster forth dispositive law 
to show where the error lies. In failing to produce applic­
able statutes or ease law, the defendant has not met this 
burden.



61

THE TRIAL COURT DID NOT ERR IN ITS INSTRUC­
TIONS RELATIVE TO THE WITNESS’S “ IN­
TERESTS” SINGE BOTH MEANINGS OF THAT 
TERM WERE ADEQUATELY CONVEYED TO THE 
JURY WITHOUT PREJUDICE TO THE DEFEND­
ANT.
The trial court instructed the jury that, “ [A] com­

plainant in a criminal ease is not to be considered an in­
terested party, the only interested parties as such are 
the People of the State of Illinois, and each of the de­
fendants.” (Supp. Ree. 11; Abst. 336). The defendant 
objects to this language and asserts that a witness’s “ in­
terest” is a question of fact for the jury. As observed 
by the defendant, the phrase “ interested party” is capable 
of having two meanings in the present case. The first is 
the usual legal sense of a party who stands to be advan­
taged or disadvantaged by a particular decision. The sec­
ond is in the sense of a personal concern or bias regarding 
the case. It is the State’s belief that both meanings were 
conveyed in the instructions given by the court without 
prejudice to the defendant.

The above instruction correctly stated the law as to 
the legal or “ technical” meaning of the term in that only 
the People and the defendant are directly affected by the 
judgment of a criminal case. Thus, in this sense, a com­
plainant would not be a party in interest.

The other meaning of the phrase was accurately pre­
sented in State’s Given Instruction Number 5 (Supp. Rec. 
9); Abst. 336). Through this instruction the trial court 
informed the jury that they were the sole judges of “ the 
credibility of witnesses and of the weight to be given to

V I I I .



62

the testimony of each of them.” In making such deter­
minations they were instructed that they might take into 
account the witness’ “ ability and opportunity to observe, 
his memory, his manner while testifying, any interest, 
bias or prejudice he may have, and the reasonableness of 
his testimony considered in the light of all the evidence 
in the case.” (Emphasis supplied).

Nevertheless the defendant complains that the instruc­
tions did not go far enough. He argues that a specific in­
struction, (Defendant’s Instruction Number 6), should have 
been given regarding the credibility of arresting police of­
ficers. (Supp. Rec. 34; Abst. 344). Such an instruction 
would have had the effect of singling out police officers as 
inherently suspect when they testify against the person 
they arrest. Moreover, it would have been misleading 
and highly prejudicial since there is nothing in the status 
of being a police officer which per se makes his testimony 
subject to discredit. Jury instructions must be formulated 
on an ad hominem basis, i.e., they must be rooted in the 
evidence presented in a particular case and not in the 
prejudices associated with general classes or stereotypes. 
The danger of dealing in such abstractions is that the jury 
may be led to nullify testimony purely on the basis of im­
material class membership. A special instruction relating 
to police officers as a class, even though it is based on a 
correct proposition of law, would very likely lead the 
jury to conclude that the court is of the opinion that the 
facts stated, on which the proposition of law is based, have 
been proved. Cf. People v. Corbishly, 327 111. 312, 158 
N.E. 732 (1927); People v. Solomen, 261 111. App. 585 
(1931).

It is not disputed that it is proper to instruct the jury 
that in judging the credibility of witnesses they should 
carefully scrutinize the circumstances under which any 
witness testified, including the relation which such wit­



63

ness may bear to the State or to the defendant. People v. 
Emerling, 341 111. 424, 173 N.E. 474 (1930). The State’s 
objection arises when undue emphasis is accorded to ar­
resting police officers as a class, followed by the bold as­
sertion that it is a “ fact that they are interested in the 
result of the case.” (Defendant’s Refused Instruction Num­
ber 6, Supp. Rec. 34; Abst. 344). The defendant is en­
titled to instructions which properly present his view. 
People y. Provo, 409 111. 63, 97 N.E. 2d 802 (1951). But 
the defendant cannot claim a right to an instruction which 
does no more than to draw the jury’s special attention to 
one facet of the evidence to the exclusion of the other 
evidence. People v. Laczny, 63 111. App. 2d 324, 211 N.E. 
2d 438, 442 (1965).

I X .
THE TRIAL COURT DID NOT PREJUDICIALLY ERR 

IN EXCLUDING THE TESTIMONY OF A DEFENSE 
WITNESS, MR. LETHERER, AFTER THE COURT 
HAD RULED THAT ALL WITNESSES BE SE­
QUESTERED, SINCE MR. LETHERER WAS PRES­
ENT IN THE COURT ROOM DURING THE TESTI­
MONY OF PROSECUTION WITNESSES PRIOR TO 
HIS BEING CHOSEN AS A WITNESS AND SINCE, 
TO THE EXTENT THAT MR. LETHERER’S TESTI­
MONY WAS NOT IMMATERIAL AND IRRELEV­
ANT, IT WAS CUMULATIVE.

Prior to the opening statements, the defendant moved 
that all witnesses be sequestered from the courtroom 
which the court granted. During the re-cross-examina­
tion of Chief Lynsky, Mr. Letherer came into the court­
room and evidently was seated. (Rec. 342; Abst. 62) 
Shortly thereafter, Chief Lynsky was questioned on the 
subject, of alleged police brutality and no objection was



64

made to the introduction of evidence on that subject. 
The record does not disclose whether Mr. Letherer was 
continuously present in the courtroom, but the record dis­
closes that he was present in the courtroom during at 
least part of Mr. Becker’s testimony (Rec. 369; Abst. 76) 
and the court noted that “ [h]e was in court Wednesday 
and Tuesday . . . He was in and out of the court constant­
ly.” (Rec. 568-569; Abst. 161-162)

During the presentation of the defendant’s case, Mr. 
Letherer was called as a witness and his testimony was 
objected to because of his violation of the sequestration 
order. (Rec. 568; Abst. 161)

The defense counsel explained that he had not chosen to 
use Mr. Letherer as a witness until the later stages of the 
trial at which time his assistant asked Mr. Letherer to 
leave the courthoom which he did (Rec. 570; Abst. 163) 
The court sustained the People’s motion to exclude the 
testimony (Rec. 568, 571; Abst. 161, 163) and the defend­
ant made an offer of proof.

Had Mr. Letherer been allowed to testify he would have 
testified to the effect that he saw several incidents of po­
lice brutality; that on or about June 30, 1965, Chief Lyn- 
sky said to him that the Chief was sorry that a police 
officer had broken his crutches; and that Officer Karchesky, 
who testified earlier, stated that on that date that he 
thought that Chicago Negro people were lazy and had 
no ambition. Mr. Letherer would have further testified 
to the effect that the reputation of the defendant for truth­
fulness and veracity was good and that he would believe 
the defendant’s testimony under oath. (Rec. 571-575; Abst. 
164-166)

Counsel for the People objected to the content of the of­
fer of proof, insofar as it was not cumulative and repeti­
tive of undisputed testimony already given, as testimony 
upon immaterial and irrelevant matters. (Bee. 575-576; 
Abst. 166-167)



65

The practice of excluding witnesses from the court­
room and separating them from each other prior to their 
testimony is a time honored tradition and has a common 
sense purpose. Since Biblical times, courts have consist­
ently engaged in the sequestration of witnesses. 6 WIG- 
MORE EVIDENCE § 1837 (3rd ed. 1940). It is provided 
for by statute under some circumstances in Illinois, 111. 
Rev. Stat. eh. 38 § 109-3 (b) (1967), and although not 
allowed as a matter of right, it is generally granted and 
may only be denied in the sound judicial discretion of the 
trial court. People v. Dixon, 23 111. 2d 136; 177 N.E. 2d 
206 (1961); People v. Mack, 25 111. 2d 417; 185 N.E. 2d 
154 (1962); c.f. 6 WIGMORE, EVIDENCE, § 1839 (3rd 
ed. 1940); Annotation, 32 A.L.R. 2d 358.

The purpose of sequestration of witnesses was well 
stated by Professor Wigmore:

The process of sequestration consists merely in 
preventing one prospective witness from being taught 
by hearing another’s testimony. * * * If the hearing of 
an opposing witness were permitted, the listening wit­
ness could thus ascertain the precise points of differ­
ence between their testimonies, and could shape his 
own testimony to better advantage for his cause. The 
process of separation, then, is here purely preventive: 
i.e. it is designed, like the rule against leading ques­
tions, to deprive the witness of suggestions as to the 
false shaping of his testimony. 6 WIGMORE, EVI­
DENCE § 1838 (3rd ed. 1940), p. 352; emphasis in 
original.

The cases cited by the defendant correctly state the rule 
of Illinois law in holding that the trial judge, in his 
sound discretion, must determine whether to allow a wit­
ness who has violated the sequestration order to testify. 
The cases express the view that when one already chosen 
as a witness does not hear or know of the exclusionary or­
der or accidentally or deliberately violates it for pur­
poses other than to advance the interests of the one for



66

whom he will testify, the judge should in his sound discre­
tion allow the witness to testify because the litigant should 
not be deprived of testimony because of the misdeeds of 
third parties. Palmer v. People, 112 111. App. 527 (1903); 
Ewing v. Cox, 158 111. App. 25 (1910) ; Kota v. People, 
136 111. 655, 27 N.E. 53 (1891); Bulliner v. People, 95 111. 
394 (1880). This rule also prevails in the vast majority 
of American jurisdictions. Annotation, 14 A.L.ft. 3d 16.

The instant ease, however, is distinguishable from the 
cases cited by the defendant and the People are unable 
to find a reported case in any jurisdiction which has relied 
on facts similar to those in this case. It is undisputed 
that the decision is in the sound discretion of the trial 
court and here the court in effect fashioned a prophylactic 
rule that where witnesses are sequestered at the beginning 
of trial, new witnesses may not be called from the court­
room audience to contradict witnesses whose testimony 
they heard (or may have heard) from the witness stand.

The People do not allege that Mr. Letherer was pre­
pared to give perjured testimony; the People only allege 
that the trial court properly exercised its discretion in ex­
cluding Mr. Letherer’s testimony.

After the defendant made his offer of proof as to what 
Mr. Letherer would testify to, were he allowed to take the 
stand, the court had more explicit reasons to exclude the 
testimony. Mr. Letherer had been present during some of 
the testimony of Chief Lynsky (Ree. 342; Abst. 62) and he 
was prepared to dispute Chief Lynsky’s testimony regard­
ing police brutality. He was present during at least some 
of Mr. Becker’s testimony (Rec. 369; Abst. 76), and was, 
prepared to dispute it on the subject of police brutality. 
The record does not disclose whether Mr. Letherer was 
present during the testimony of Officer Karehesky, but 
Mr. Letherer was prepared to testify to a statement with 
which the defendant might have attempted to demonstrate 
an anti-Negro bias on the part of that officer.



67

Were the court to excude some but not all of the tes­
timony of Mr. Letherer, surely it could properly have 
excluded that testimony disputing the testimony of oppos­
ing witnesses which the defendant heard or might have 
heard. While such testimony might have been truthful, 
in part or in whole, a reviewing court cannot hold that a 
trial court abused its judicial discretion by excluding such 
testimony.

The bulk of Mr. Letherer’s excluded testimony dealt 
with alleged police brutality. As will be explained in the 
following argument, the trial court properly exercised its 
discretion in excluding all of Mr. Letherer’s testimony on 
the grounds that it would defeat the purpose of the order 
to sequester witnesses. That portion of the testimony deal­
ing with police brutality and bias should have been ex­
cluded as immaterial and irrelevant and the People pre­
sented its objection on that ground. (Bee, 575-576; Abst. 
166-167)

Mr. Letherer would have also testified to the effect that 
he knew the reputation of the defendant in the community 
and it was good and that he would believe the defend­
ant’s testimony under oath. Mr. Letherer was the first 
Avitness called by the defendant and the only person who 
did not testify for the defendant as both a private citizen 
and a leader in the civil rights movement. Ten civil rights 
leaders testified as to the defendant’s good reputation for 
truthfulness and veracity, among those witnesses being 
two university professors, a lawyer, a labor leader, and 
four religious leaders one of whom was the late Rev. Dr. 
Martin Luther King, Jr., a Nobel Peace laureate. The 
People neither presented witnesses nor argued the reputa­
tion of the defendant.

Even if the court, arguendo, erred in excluding the tes­
timony of Mr. Letherer on the sequestration of witnesses 
grounds, the court did not prejudicially err in excluding



68

Mr. Letherer’s testimony on the defendant’s reputation be­
cause such testimony was both undisputed and cumulative.

As Professor Wigmore has said:
The value of character-evidence, impeaching or sus­

taining a party or a witness, is commonly exagger­
ated. Its comparative futility in the ordinary case, 
and its tendency to degenerate into a mere exhibition 
of petty local jealousies and animosities, of no pro­
bative service, have induced the Courts to concede 
unanimously that the number of character-witnesses 
may without disadvantage be limited, as the trial 
Court may prescribe. * * # A  Court occasionally de­
clares the rule applicable only where the fact is not 
actuallv controverted. 6 WIGMORE, EVIDENCE 
§ 1908 (3rd ed. 1940), pp. 580-585.

It appears obvious that if a trial court may exercise its 
sound judicial discretion to exclude additional character- 
witnesses where the character of the defendant is disputed, 
then the exclusion of a character-witness, who the record 
shows to be not as prominent as ten other character-wit­
nesses who did testify, is not reversible error where the 
character of the defendant is not in issue.

X .
THE COURT PROPERLY EXERCISED DISCRETION 

IN EXCLUDING THE TESTIMONY OF WITNESSES 
REGARDING ALLEGED POLICE BRUTALITY 
SINCE THE SUBJECT WAS OUTSIDE O F  THE 
SCOPE OF THE DIRECT EXAMINATION OF MR. 
BICKER AND OFFICER KARCHESKY AND SINCE 
THE SUBJECT WAS IMMATERIAL AND IRRELE­
VANT TO THE ISSUES OF THE CASE.
During the re-direct examination of Chief Lynsky, he 

said that some of the demonstrators wTere crying out that 
there was police brutality going on, that the defendant did 
not make such a cry, and that he saw no bru­



tality. (See appendix B; Rec. 334; Abst. 59) Although the 
court later ruled that police brutality was irrelevant to 
the issues in the case (Rec. 933; Abst. 311) and excluded 
testimony on direct examination of defense witnesses on 
that ground (Rec. 735, 842; Abst. deleted, 260), the de­
fendant did not object to Chief Lynsky testifying to such 
an irrelevant matter. Since the subject of police brutality 
was within the scope of the re-direct examination of Chief 
Lynsky and, although irrelevant to the issues in the case, 
it was relevant to his credibility, and the court allowed 
extensive re-cross-examination on the subject. (Rec. 340- 
347; Abst. 60-66) The defendant now comes before this 
court, attempting to pull himself up by his own boot­
straps, arguing that since he did not object to a prosecu­
tion witness testifying to an irrelevant matter, all other 
witnesses must be allowed to testify to this same ir­
relevant matter.

Simply because a defendant attempts to defend on an 
irrelevant issue and finds it is necessary to his theory of 
the case he cannot make evidence on that issue relevant 
and admissible. The defendant can scarcely defend a dis­
orderly conduct, charge by admitting that he is guilty but 
if the police were rough with him after arrest he should 
be found not guilty.

The formal error in the resisting arrest complaint which 
was remedied prior to trial has no effect upon the evi­
dence which is relevant to trial on the corrected com­
plaint. Likewise, the defendant can hardly defend a re­
sisting arrest charge by admitting that he was guilty but 
if the police were rough with him after arrest he should 
be found not guilty. Indeed, the defendant has no right to 
resist even a wrongful arrest by one he knows to be a 
peace officer. 111. Rev. Stat. ch. 38, § 7-7 (1967).

It is a cannon of the law of evidence that a trial judge 
does not commit error by exercising his judicial discre­



70

tion and ruling evidence inadmissible because it is imma­
terial and irrelevant. This court set the standard in Veer 
v. Hagemann, 334 111. 23; 165 N.E. 175 (1929).

Where the confusion of issues will not be compen­
sated by the assistance of useful evidence it is proper 
to exclude the evidence offered. Whether such offered 
evidence should be admitted where its admission will 
tend to confuse the issues is left to the sound discre­
tion of the trial court. 334 111. at 28.

Clearly the testimony of Mr. Tournour and the defendant 
on the subject of police brutality was not material—not 
probative of any issue in the case—and the trial court so 
ruled. (Ree. 735, 842; Abst. deleted, 260).

In ruling improper, cross-examination of Mr. Becker and 
Officer Karchesky on the subject of police brutality, the 
trial court excluded the testimony on the grounds that 
such testimony was outside of the scope of the direct ex­
amination. (Rec. 370, 436-437; Abst. 77, 113-114)

It is well settled in Illinois that the latitude to be al­
lowed in the cross-examination of witnesses rests largely 
within the discretion of the trial judge. People v. Halte- 
man, 10 111. 2d 74; 139 N.E. 2d 286 (1957); See Veer v. 
Hagemann, supra; 3 WIGfMORE, EVIDENCE, §§ 944, 
983 (2) (3rd ed. 1940). It is also well settled that cross- 
examination ordinarily should be limited to matters 
brought out on direct examination. People v. Du Long, 33 
111. 2d 140, 144 ; 210 N.E. 2d 513 (1965); People v. Mat­
thews, 18 111. 2d 164; 163 N.E. 2d 469 (1959); People v. 
Smith, 413 111. 218; 108 N.E. 2d 596 (1952). Where, as 
here, the cross-examination attempted is not only outside 
of the scope of the direct examination but it is also as to 
matters immaterial or not relevant to the issues in the 
case, it is clear that the trial judge is within his discretion 
in excluding such testimony. See People v. Kirkwood, 17



71

111. 2d 23, 29; 160 N.E. 2d 766 (1959); People v. Simmons, 
274 111. 528; 113 N.E. 887 (1916).

The cases cited by the defendant in support of his po­
sition that the court erred in restricting the cross-exam­
ination of Mr. Becker and Officer Karchesky are inap­
posite to the extent that they do not support the People’s 
position. While it states in somewhat simplistic fashion 
the general rule that ordinarily relevant evidence is ad­
missible, People ex rel. Noren v. Dempsey, 10 111. 2d 288; 
139 N.E. 2d 780 (1957), deals with an action to enjoin 
discovery of medical evidence in a personal injury case.

The other three cases cited by the defendant deal with 
improprieties engaged in by the police and prosecution 
directly affecting the issue of the guilt of the defendant. 
In People v. Shines, 394 111. 428; 68 N.E. 2d 911 (1946), 
the trial court in its discretion allowed the prosecutor to 
cross-examine a defendant charged with assault with in­
tent to murder on an immaterial matter relating to a crap 
game in which he said that he had taken part with the 
person whom he accused of making the assault. This 
Court disapproved of that line of questioning but affirmed 
the conviction because the error was not so prejudicial as 
to warrant a finding that the trial court had abused its 
discretion.

In People v. Del Prete, 364 111. 376; 4 N.E. 2d 484 
(1936), this Court held that the trial court had clearly 
abused its discretion by allowing the prosecutor to repeat­
edly badger the defendant on cross-examination (over his 
counsel’s objection) as to the details of another crime 
which he had admitted that he had pled guilty to. The 
conviction was overturned and in dicta the court stated 
that “ [s]ince this case must be tried again it is necessary 
to point out that the rulings of the court, and the con­
stant interruptions and improper remarks of the prosecu­



tor largely deprived the defendant of any possible bene­
fit from a cross-examination of the complaining witness.” 
364 111. at 379. The court went on to say that on re-trial, 
cross-examination should be allowed as to all matters with­
in the scope of the direct examination and all matters rele­
vant to the issue being tried. 364 111. at 379-380.

People v. Lettrick, 413 111. 172, 108 N.E. 2d 488 (1952), 
was a shocking case of a prosecution for the sexual moles- 
tation-murder of a little girl. The only evidence against 
the accused was his repudiated confession which was made 
under circumstances which bore numerous badges of co­
ercion and which he alleged to have been coerced. Al­
though the main issue in the case was the voluntariness of 
the confession, the trial court refused to allow the defend­
ant to effectively cross-examine a witness who was al­
legedly one of those who had coerced the confession. The 
trial court did not allow a fifteen minute recess so that 
the witness could refresh his recollection as to the ques­
tions which he asked of the defendant which produced the 
confession. The trial court also refused to allow a highly 
credible defense witness to testify to the effect that an­
other person (who was either dead or incompetent at 
the time of trial) had confessed to the crime. Because of 
these and other abuses of judicial discretion, this Court 
reversed the conviction and remanded the case for new 
trial.

In the instant case, the trial court properly exercised 
its discretion in excluding testimony regarding alleged 
police brutality because such testimony was outside of the 
scope of the direct examination of Mr. Becker and Officer 
Karchesky and, as to the testimony of the defendant, Of­
ficer Karchesky, and Messrs. Becker and Tournour, was 
also immaterial and irrelevant.



73

THE COURT PROPERLY SENTENCED THE DEFEND­
ANT ON BOTH THE DISORDERLY CONDUCT 
CHARGE AND THE RESISTING ARREST CHARGE 
SINCE THEY ARE SEPARATE AND DISTINCT 
CRIMES AND INVOLVED DIFFERENT CONDUCT.
The defendant alleges that the trial court erred in sen­

tencing him on both charges because they were both part 
of the same conduct. Citing People v. Ritchie, 66 111. App. 
2d 302, 213 N.E. 2d 651 (1966), the defendant alleges that 
case requires reversal of one of the convictions.

People v. Ritchie was affirmed by this Court upon dif­
ferent grounds, 36 111. 2d 392; 222 N.E. 2d 479 (1967) and 
there said of the lower court opinion:

The sense of the opinion appears to he that since 
the two crimes charged, i.e. rape and burglary with in­
tent to commit rape, arose out of the same conduct or 
transaction and against the same person it would be 
unfair and prejudicial to defendant to impose two 
sentences and therefore it reversed the burglary con­
viction, relying on People v. Colson, 32 111. 2d 398; 
People v. Squires, 27 111. 2d 518; and People v. Sehlen- 
ger, 13 111. 2d 63; and section 1-7 (m) of the Criminal 
Code 111. Rev. Stat. 1965, chap. 38, par. 1-7 (in).

The State convincingly argues that the principle set 
forth in the cited cases is not applicable; that the 
crimes there charged arose out of a single act, for 
instance rape and incest involving the same person, 
and armed robbery and grand larceny involving the 
same money, whereas here there are two separate and 
distinct acts giving rise to separate and distinct sub­
stantive offenses. However, this question is not prop­
erly before ns for review. 36 111 at 397.

People v. Ritchie involved a defendant who broke into 
and entered the complainant’s house trailer and then 
raped her. This Court was satisfied that such conduct

X I .



74

was punishable as the two separate offenses of rape and 
burglary with intent to commit rape.

The prohibited acts here are obviously separate and 
distinct; the acts were even directed toward different par­
ties. The disorderly conduct of sitting or laying down in 
the busy intersection at rush hour was directed against 
the pedestrians and the vehicle occupants. The resisting 
of arrest by going limp was directed against the police 
officers and against their authority. In no way does the 
commission of disorderly conduct require the resisting of 
arrest by going limp or otherwise. Indeed, the commis­
sion of the act of disorderly conduct does not require the 
commission of any other prohibited act. The commission 
of the act of resisting arrest may be accomplished by 
either active or passive resistance, and is separate from 
the conduct which gave rise to the arrest.

The fact that the defendant committed both offenses 
within minutes of each other or that the one offense direct­
ly followed the other does not make them part of the same 
transaction and consequently punishable as a single crime.

X I I .
THE DEFENDANT’S CLAIM OF UNREASONABLE 

BAIL CANNOT ARISE ON AN APPEAL FOR RE­
VERSAL SINCE THE DEFENDANT HAS FAILED 
TO PURSUE HIS PROPER STATUTORY REMEDY.
After sentencing, the defendant was admitted to a one 

thousand dollar cash bond. On December 20, 1966, the de­
fendant presented his motion to the trial court for reduc­
tion of the appeal bond or for a correction of the bond 
procedure. The motion was denied. (Ree. 124-125; Abst. 
16-17). On December 22, 1966, the defendant filed his no­



tice of appeal. (Bee. 128; Abst, 22). The defendant has 
not appealed to this Court for a reduction of the bond or 
for a correction of the bond procedure.

Before discussing the points raised by the defendant rel­
ative to his appeal bond, the State feels it is necessary to 
place the liberties associated with the bonding procedure 
in their proper perspective. In nearly all cases the accused 
has a statutory right to bail while his trial is pending. 111. 
Bev. Stat. ch. 38, § 1104(a) (1967). As noted in the 
Committee Comments on Chapter 38, Article 110, “ The 
fundamental principle underlying the granting of bail is 
that a person accused of a crime is presumed to be in­
nocent until he is proved guilty beyond all reasonable 
doubt at trial.”

When there has been a conviction, however, the court 
need not admit the defendant to bail. 111. Bev. Stat. ch. 
38, § 110-7(d) (1967). Thus, the defendant’s conviction 
eradicated any claim of statutory right to bail on appeal.

It has long been the law in Illinois that issues regard­
ing bail after judgment are not brought up for review in 
an appeal seeking reversal of the trial decision. See, for 
example, People v. Lalor, 290 111. 234, 124 N.E. 866 (1920), 
cited by defendant in support of another point. The ra­
tionale underlying this rule is obvious. Errors in proce­
dure which may occur after the conclusion of a trial cannot 
logically revert back through time to overturn an other­
wise sound determination of guilt reached during the trial.

If it was the opinion of the defendant that his appeal 
bond was unreasonable, a remedy was available to him. 
Under 111. Bev. Stat. ch. 38, § 110-6(a) (1967), applications 
for reduction or increase of bail are to be made to the 
court before which the proceeding is pending. Under Buie 
606 of the Illinois Supreme Court Buies the defendant’s 
appeal was perfected and jurisdiction was taken by this



76

Court on December 22, 1966, when the defendant filed his 
notice of appeal. The procedures to be followed by the 
defendant are outlined in Rule 361 while the power to re­
duce bail is denoted in Rule 609.

X I I I .
THE SENTENCES OF THE TRIAL COURT ARE NOT 

EXCESSIVE NOR OUT OF PROPORTION TO THE 
NATURE OF THE OFFENSES.
The maximum penalty allowable for the Disorderly Con­

duct offense with which defendant was charged, is $500. 
111. Rev. Stat. ch. 38, § 26 -l(a )(l) (1967). The Resisting 
Arrest maximum is $500 and one year in a penal institu­
tion other than the penitentiary. 111. Rev. Stat. ch. 38, § 31- 
1 (1967). Penalties actually imposed by the lower court 
were $500 on the Disorderly Conduct conviction and three 
months on the Resisting Arrest conviction.

Formerly the question of review' of purported harsh 
penalties was governed by III. Rev. Stat. ch. 38, ,§ 121-9 (b) 
(4), but since 1967, the Illinois Supreme Court Rules of 
Practice provide the applicable standards. Without change 
in substance from § 121-9(b)(4), Rule 615(b)(4) states: 
“ On appeal the reviewing court may: * * * (4) reduce the 
punishment imposed by the trial court.” In interpreting 
this authority to reduce sentences, this Court has given 
great deference to the discretion of the trial judge:

We believe that under the now applicable statute 
granting reviewing courts the power to reduce sen­
tences . . ., such authority should be applied with con­
siderable caution and circumspection, for the trial 
judge ordinarily has a superior opportunity in the 
course of the trial and the hearing in aggravation and 
mitigation to make a sound determination concerning 
the punishment to be imposed than do the appellate



tribunals. People v. Taylor, 33 111. 2d 417, 424, 211 
N.E. 2d 673, 677 (1965).

The court in Taylor reaffirmed People v. Smith, 14 111. 
2d 95, 97, 150 N.E. 2d 815, 817 (1958), where the general 
policy was enunciated that a lower court’s sentence not 
be disturbed “unless it clearly appears that the penalty 
constitutes a great departure from the fundamental law 
and its spirit and purpose, .or that the penalty is manifest­
ly in excess of the prescription of section 11 of Article II 
of the Illinois Constitution which requires that all penal­
ties shall be proportioned to the nature of the offense.”

The goals of sentencing are also relevant to the issue 
presented. These goals are (1) deterrence of the offender 
from a repetition of the offense, (2) general deterrence of 
the public from similar conduct, (3) protection of so- 
city by removal of the offender, (4) rehabilitation, (5) jus­
tice and fair play, and (6) restitution for injured persons. 
Halperin, Appellate Review of Sentence in Illinois-—Re­
ality or Illusion?, 55 111. B. J. 300, 301 fn. 6 (1966). Re­
garding the deterrence factor, among others, as it relates 
to the defendant but more so to the public at large, the 
State believes it imperative that the type of conduct involv­
ed in the instant ease be clearly labeled as out of order. 
The enormous amount of damage inflicted on the City of 
Chicago, in terms of crippling transportation and siphon­
ing off police personnel from their more important crime 
prevention and apprehension functions, can not justifiably 
be balanced against the purported interests of the defend­
ant or anyone else in unlawfully staging a sit-down in a 
busy Loop intersection during the rush hour. And surely 
one cannot, with respect to the Resisting Arrest convic­
tion, discount the deterrence value of discouraging open de­
fiance of police officers in the performance of their duties,



78

either actively or through the medium of presenting the 
arresting officer with dead weight.

With the above sentencing goals in mind, and consider­
ing the fact that defendant’s punishment could have been 
greater, the State therefore contends that in view of 
the express policy of entrusting substantial sentencing 
discretion with the trial judge, this court should affirm 
the penalties imposed by the lower court.

CONCLUSION

The People of the State of Illinois respectfully request 
that the convictions of Albert A. Baby be affirmed.

Respectfully submitted,
W illiam  (I. Clark ,

Attorney General,
State of Illinois,
Supreme Court Building,
Springfield, Illinois,

Attorney for Appellee.
Johk J. Stamos,

State’s Attorney,
County of Cook,
Room 500 — Civic Center,
Chicago, Illinois 60602;

F red G. L each ,
Assistant Attorney General;

E lmer C. K issane,
J oel M. F laum ,*

Assistant State’s Attorneys,
Of Comisel.

*This brief was prepared in cooperation with the Crim­
inal Appellate Advocacy Seminar of Northwestern Uni­
versity School of Law with the assistance of graduate law 
student Thomas Capelle, and law undergraduates Richard 
Means and Roger Nauert.



79

A P P E N D I X  A.

The defendant is charged in a misdemeanor complaint 
signed by one Richard G. Becker which alleges that the de­
fendant Albert A. Raby did :

. . . on or about 28 June 1965 at Randolph & 
La Salle committed the offense of disorderly conduct 
in that he knowingly did collect in a crowd or body 
for unlawful purposes or for purposes to the annoy­
ance or disturbance of other persons in such unrea­
sonable manner as to alarm and to disturb another 
and to provoke a breach of the peace in violation of 
Chapter 38 section 26-lal Illinois Revised Statute . . .

The defendant is also charged in another misdemeanor 
compaint signed by one Richard G. Becker which alleges 
that the defendant Albert A. Raby:

. . .  on or about 28 June 1965 at Randolph & La 
Salle committed the offense of resisting or obstruct­
ing a peace officer in that he resisted a police officer 
in the performance of his duty b y :

jx] when placed under arrest by said officer, re­
fused to voluntarily accompany arresting of­
ficer and had to be physically carried away.

jx] when placed under arrest by said officer, re­
fused to voluntarily accompany arresting of­
ficer, and had to be physically carried away and 
while being carried, did, kick, squirm, struggle 
in an effort to escape the custody of said officer

in violation of Chapter 38 section 31-1 Illinois Revised 
Statute . . .



80

A P P E N D I X  B.

During the re-direct testimony of Chief Lynsky, the fol­
lowing colloquy took place:

Q. Chief Lynsky, were the people on the street, 
the demonstrators, either sitting, kneeling, or lying- 
on the street, were they saying anything or was any 
sound emanating from them!

A. There was, as the arrests were being made, 
there were cries of police brutality.

Q. Did Mr. Raby make a cry of this type?
A. No, sir.
Q. Did you see any demonstrators who made this 

cry?
A. Did I see any, yes, I did.
Q. Was there any brutality by the Police De­

partment?
A. No, sir.

This was the end of this line of questioning. (Rec. 334; 
Abst. 59) On re-cross-examination, the defendant exam­
ined the witness Lynsky at length on certain alleged acts 
of police brutality and certain persons who were allegedly 
brutalized without objection from the State. (Rec. 340- 
347; Abst. 60-66)