second paragraph instruction in Illinois

1986Prior to People v. Crow (1985), 108 Ill. 2d 520 , 485 N.E.2d 381 , some courts took the view that evidence that a crime had been committed is direct evidence for the purpose of determining that the second paragraph of IPI Criminal 2d No. 3.02 need not be given.

1986Prior to People v. Crow (1985), 108 Ill. 2d 520 , 485 N.E.2d 381 , some courts took the view that evidence that a crime had been committed is direct evidence for the purpose of determining that the second paragraph of IPI Criminal 2d No. 3.02 need not be given.

1984App. 3d 298, 302 , 319 N.E.2d 77, 80 .)” In view of the evidence of guilt, it does not appear that the verdict resulted from the refusal to give the second paragraph of the instruction, nor does it appear that justice was denied.

1976In People v. Merkel, 23 Ill.App.3d 298 , 319 N.E.2d 77 , it is stated; “* * * the failure of the trial court, if it were error, to give the second part of IPI — Criminal No. 3.02 does not require reversal unless it appears that justice has been denied or that the verdict resulted from such error.” ( 23 Ill.App.3d 298, 302 , 319 N.E.2d 77, 80 .) (See also People v. Mickelson, 32 Ill.App.3d 813 , 336 N.E.2d 806 .) It does not appear to us' that the verdict resulted from the refusal to give the second paragraph of the instruction nor does it appear that justice was denied.

1986People v. Crow (1985), 108 Ill. 2d 520, 536 , 485 N.E.2d 381 ; People v. Jones (1985), 105 Ill. 2d 342, 355 , 475 N.E.2d 832 ; People v. Leonora (1985), 133 Ill.

1986People v. Crow (1985), 108 Ill. 2d 520, 533-34 ; People v. Jones (1985), 105 Ill. 2d 342, 355-56 .

1986In People v. Evans (1981), 87 Ill.2d 77, 83 , the court specifically required the use of the second paragraph of this instruction when "the proof of guilt, as to each element of the offense, is circumstantial." The court has twice reaffirmed the requirement.

1986In People v. Evans (1981), 87 Ill. 2d 77, 83 , the court specifically required the use of the second paragraph of this instruction when “the proof of guilt, as to each element of the offense, is circumstantial.” The court has twice reaffirmed the requirement.

1985People v. Minish (1974), 19 Ill.

1978App.3d 537 , 352 N.E.2d 10 ; People v. Minish (1974), 19 Ill.

1984App. 3d 498, 507-08 , 341 N.E.2d 471, 477 , we stated: “[Cjourts of review of this State are extremely reluctant to rule that the failure to give the second paragraph of the instruction is reversible error.

1978App. 3d 498, 507 , 341 N.E.2d 471 .) The failure of the trial court, if it were error, to give the second paragraph of the instruction does not require reversal unless it appears that justice has been denied or that the verdict resulted from such error.

1983App. 3d 353, 361 , 375 N.E.2d 502, 508 , “limiting the times when it is permissible to give the second paragraph and not in terms of stating the times when that paragraph must be given.” The failure of a trial court to give the second paragraph of the instruction, if it should have been given, does not require reversal unless it appears that justice has been denied or that the verdict resulted from such error.

1981In that case it was held that when all the evidence is circumstantial, it is permissible, not mandatory, for the trial court to give this second paragraph of the instruction ( 59 Ill.

1987Our supreme court has determined in People v. Bryant (1986), 113 Ill. 2d 497, 512 , 499 N.E.2d 413, 420 , decided after defendant was tried, that the second paragraph of the instruction is “obscure and misleading” and should not be given.

1987Our supreme court has determined in People v. Bryant (1986), 113 Ill. 2d 497, 512 , 499 N.E.2d 413, 420 , decided after defendant was tried, that the second paragraph of the instruction is “obscure and misleading” and should not be given.

1983App. 3d 217 , 416 N.E.2d 1197 .) In addition, the State contends that in French and Hammers, which are cited by defendant, it was held that the failure to give the second paragraph of the instruction was not grounds for reversal.

1983App. 3d 217 , 416 N.E.2d 1197 .) We have examined the entire record on appeal in the case at bar and conclude that we need not make the distinction because, assuming that all of the evidence was circumstantial, our review of the record shows that the failure to give the second paragraph of the instruction could have been, at most, harmless error.

2001The first portion of the instruction given in Bassett stated that it was the railroad's duty to provide adequate warning devices at a crossing; however, the second paragraph of the instruction stated: "Where a crossing is more than ordinarily hazardous or extrahazardous, the railroad has a duty to provide automatic electronic flashing light signals at the crossing." Bassett , 131 Ill.

1997The Leonardi court held that a general denial of any proximate cause is sufficient for the defendant to raise the defense and that the defendant has the right "to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff’s injuries.” Leonardi, 168 Ill. 2d at 101 , 658 N.E.2d at 459 .

1997The Leonardi court held that a general denial of any proximate cause is sufficient for the defendant to raise the defense and that the defendant has the right "to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff’s injuries.” Leonardi, 168 Ill. 2d at 101 , 658 N.E.2d at 459 .

1992App. 3d at 220 , 530 N.E.2d at 1086 .) The second paragraph of this instruction is optional, and is only to be used when the court finds it is applicable.

1991In People v. Fierer (1988), 124 Ill. 2d 176 , 529 N.E.2d 972 , the Illinois Supreme Court held that the trial court erred in giving the second paragraph of this instruction where there was absolutely no evidence of criminal or antisocial conduct.

1991In People v. Fierer (1988), 124 Ill. 2d 176 , 529 N.E.2d 972 , the Illinois Supreme Court held that the trial court erred in giving the second paragraph of this instruction where there was absolutely no evidence of criminal or antisocial conduct.

1991Instead, the court found that where the defendant had a long history of academic and professional achievement and no record of illegal or antisocial conduct, “the explicit prerequisite for the instruction was absent.” ( 124 Ill. 2d at 192 , 529 N.E.2d at 978 .) In People v. Foster (1976), 43 Ill.

1986Similar language (‘you may infer’) made the instruction struck down in Sandstrom valid when later challenged before the Montana Supreme Court.” ( 84 Ill. 2d 415, 432-33 , 420 N.E.2d 151, 159 .) In Housby, where there was not a second paragraph of the instruction as there is in the instant case, the Supreme Court stated in substance that such an addition, although perhaps prudent, would be redundant, because the instruction, as given, advised the jurors that they “may infer.” The dilemma trial courts are faced with, with respect to the application or use of IPI Criminal 2d No. 23.06, is perchan

1986Similar language (‘you may infer’) made the instruction struck down in Sandstrom valid when later challenged before the Montana Supreme Court.” ( 84 Ill. 2d 415, 432-33 , 420 N.E.2d 151, 159 .) In Housby, where there was not a second paragraph of the instruction as there is in the instant case, the Supreme Court stated in substance that such an addition, although perhaps prudent, would be redundant, because the instruction, as given, advised the jurors that they “may infer.” The dilemma trial courts are faced with, with respect to the application or use of IPI Criminal 2d No. 23.06, is perchan

1986Although based on a different form of charge, the Supreme Court in People v. Ziltz (1983), 98 Ill. 2d 38, 43 , 455 N.E.2d 70, 72 , made it clear the State does have a rational basis for curbing the incidence of drunk driving and passing legislation which is a reasonable means of promoting that interest.

1986Although based on a different form of charge, the Supreme Court in People v. Ziltz (1983), 98 Ill. 2d 38, 43 , 455 N.E.2d 70, 72 , made it clear the State does have a rational basis for curbing the incidence of drunk driving and passing legislation which is a reasonable means of promoting that interest.

1986People v. Crow (1985), 108 Ill. 2d 520, 536 , 485 N.E.2d 381 ; People v. Jones (1985), 105 Ill. 2d 342, 355 , 475 N.E.2d 832 ; People v. Leonora (1985), 133 Ill.

1986App. 3d 646 , 288 N.E.2d 245 (3d Dist. 1972).” (IPI Criminal 2d No. 3.02.) Defense counsel relied somewhat on the second paragraph of the instruction in his closing argument.

1984People v. McLaughlin (1984), 121 Ill.

1984In People v. Malik (1983), 113 Ill.

1984In People v. Malik (1983), 113 Ill.

1984People v. Edmondson (1982), 106 Ill.

1984(People v. Jenkins (1983), 117 Ill.

1983(People v. Stokes (1981), 95 Ill.

1983Defendant’s view is that since the proof pertaining to his blood alcohol at the time of driving was circumstantially established by a breathalyzer test given some time later, the second paragraph of the instruction should have been given because the defendant’s guilt was established wholly through circumstantial evidence. “ ‘[D]riving’ is an essential element of the offense of ‘driving while intoxicated.’ ” (People v. Wright (1977), 49 Ill.

1983App. 3d 356, 358 , 364 N.E.2d 355, 356 .) Since there was direct evidence that defendant was driving a car at the time he was arrested and just prior to taking a breathalyzer test, the State proved an essential element of the offense by direct evidence.

1981App. 3d 1062 , 400 N.E.2d 553 , affd (1981), 84 Ill. 2d 82 , 417 N.E.2d 618 , the trial court refused defendant’s instruction in the language of the second paragraph of IPI Criminal No. 24.04, but chose to give the prosecution’s instruction that defendant was not entrapped if a public officer “merely afforded to the defendant the opportunity ° * ° for committing a crime which he was willing to commit.” The opinion stated: “The question is not whether the defendant intended to commit the crime, but whether the intent originated in his mind.” 80 Ill.

1981App. 3d 1062 , 400 N.E.2d 553 , affd (1981), 84 Ill. 2d 82 , 417 N.E.2d 618 , the trial court refused defendant’s instruction in the language of the second paragraph of IPI Criminal No. 24.04, but chose to give the prosecution’s instruction that defendant was not entrapped if a public officer “merely afforded to the defendant the opportunity ° * ° for committing a crime which he was willing to commit.” The opinion stated: “The question is not whether the defendant intended to commit the crime, but whether the intent originated in his mind.” 80 Ill.

1981App. 3d 127 , 382 N.E.2d 532 .) In the present case, we will not attempt to resolve that dichotomy, for even assuming all of the evidence was circumstantial, the failure to give the second paragraph of the instruction was harmless error, if error at all, because, in light of the quantity and quality of all of the evidence against defendant, he suffered no prejudice from the failure to give his instruction.

1981The second paragraph of that instruction follows the language of the statute: “However, the defendant was not entrapped if a public officer merely afforded to the defendant the opportunity or facility for committing a crime in furtherance of a criminal purpose which the defendant originated.” (Emphasis added.) In People v. Pates (1980), 80 Ill.

1981App. 3d 1062 , 400 N.E.2d 553 , affd (1981), 84 Ill. 2d 82 , 417 N.E.2d 618 , the trial court refused defendant’s instruction in the language of the second paragraph of IPI Criminal No. 24.04, but chose to give the prosecution’s instruction that defendant was not entrapped if a public officer “merely afforded to the defendant the opportunity ° * ° for committing a crime which he was willing to commit.” The opinion stated: “The question is not whether the defendant intended to commit the crime, but whether the intent originated in his mind.” 80 Ill.

1979The Comment to the instruction (IPI Civil No. 105.01, Comment, at 321) cites Bollenbach v. Bloomenthal (1930), 341 Ill. 539 , 173 N.E. 670 , as the only supreme court authority in its support.

1979The Comment to the instruction (IPI Civil No. 105.01, Comment, at 321) cites Bollenbach v. Bloomenthal (1930), 341 Ill. 539 , 173 N.E. 670 , as the only supreme court authority in its support.

1979The supreme court has quoted the dictum of Borowski recently in Walski v. Tiesenga (1978), 72 Ill. 2d 249 , 381 N.E.2d 279 , in affirming the trial court’s direction of a verdict for the defendants in a medical malpractice case arising from thyroid surgery.

1979The supreme court has quoted the dictum of Borowski recently in Walski v. Tiesenga (1978), 72 Ill. 2d 249 , 381 N.E.2d 279 , in affirming the trial court’s direction of a verdict for the defendants in a medical malpractice case arising from thyroid surgery.