Illinois v. Raby Brief and Argument for Appellee
Public Court Documents
January 1, 1968
Cite this item
-
Brief Collection, LDF Court Filings. Illinois v. Raby Brief and Argument for Appellee, 1968. de75c4b7-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c5fddcef-7581-4cd2-a950-51aa50b73922/illinois-v-raby-brief-and-argument-for-appellee. Accessed December 06, 2025.
Copied!
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)