author: Mr. PRESIDING JUSTICE McNAMARA

text:
      In re Application of the County Collector—(Elmwood Properties, Inc., Petitioner-Appellee, v. Richard E. Andrews, Respondent-Appellant.)
    (No. 58646;
    First District (3rd Division)
    March 7, 1974.

      Kenneth N. Flaxman, of Chicago, and Manly R. Croft, of Hoy, Oddo, Kueia & Croft, of Oak Park, for appellant.
    Allan L. Blair, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Respondent, Richard E. Andrews, appeals from an order Of the circuit court of Cook County directing the issuance of a tax deed for respondent’s real estate to the petitioner, Elmwood Properties, Inc. The real estate in question was respondent’s personal residence and is located at 912 Wenonah Avenue in the village of Oak Park. On February 16, 1970, First Lien Company, petitioner’s assignor, paid into the Cook County clerk’s office $194.44, the amount of respondent’s unpaid 1968 general real estate tax, and received a certificate of purchase for the property. When respondent failed to redeem his property during an extended redemption period, petitioner requested a court order mandating the issuance of the deed. Pursuant to section 266 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 747), the court conducted a hearing to determine if petitioner and its assignor had fulfilled the statutory prerequisites entitling it to the requested relief. Respondent was represented by counsel at the hearing. On November 14, 1972, the trial court, at the conclusion of the hearing, issued an order in petitioner’s favor. Respondent filed a timely notice of appeal. A brief recitation of what transpired thereafter is necessary to understand the present issues on appeal.

Respondent filed his brief in this court contending that the trial court erred in finding that respondent had been served with proper notice; in holding that petitioner had proven payment of all subsequent taxes imposed on the property; in determining that respondent was not entitled to the remedial relief afforded by statute; and in upholding the constitutionality of die statute relating to die issuance of tax deeds. After respondent filed his brief in this court claiming die above errors, petitioner, on September 28,1973, returned to the trial court and requested an order, pursuant to Supreme Court Rule 329, correcting the record. In its petition making that request, petitioner recited that: “The record in this cause fails to reflect admission of [petitioner’s] Exhibit 14 (evidence of payment of subsequent taxes) into evidence.” On October 16, 1973, die trial court, over respondent’s objections, granted petitioner’s request and entered an order reciting that petitioner’s exhibit evidencing payment of subsequent taxes had been introduced into evidence.

At the original hearing, much of the testimony dealt with the issue of whether respondent had received proper service of the necessary notices. The trial court heard the conflicting testimony of petitioner’s private process server and of respondent on the question, and it determined that respondent had been served with notice.

At one point in the hearing, petitioner’s counsel stated to the court that he “would like to submit evidence of payment of the subsequent taxes.” Respondent’s counsel immediately objected, not claiming that the subsequent taxes had not been paid, but contending that the provisions of a recently enacted statute (Ill. Rev. Stat. 1971, ch. 120, par. 734), extending the time respondent could redeem his property to 30 days after the tax deed hearing, applied to the present case. Respondent’s counsel further argued that he was ready to pay the deficiency and proof on the issue of payment of subsequent taxes was immaterial. The trial court overruled the objection on the basis of its interpretation of the statute in question and told petitioner to “submit what evidence you have.” At this point the trial judge and respondent’s counsel renewed their discussion on respondent’s tender of payment. The discussion was terminated when petitioner’s counsel received permission to introduce into evidence, without objection from respondent, other documents unrelated to the payment of subsequent taxes. The record is completely silent, however, as to the introduction and admission into evidence of Petitioner’s Exhibit 14 for Identification, purporting to be proof of petitioner’s payment of subsequent years’ taxes on the property in question.

We shall consider initially respondent’s contention that petitioner failed to prove at the tax deed hearing that it had paid the subsequent taxes.

Under section 266 of the Revenue Act, a party seeking a tax deed must prove at the tax deed hearing, among other prerequisites, that all taxes and special assessments due and payable subsequent to the sale have been paid.

Prior to tire 1951 amendments to this section of the Revenue Act, the issuance of a tax deed was a purely ministerial function of the county clerk, whose chief responsibility relating to this duty was to determine if statutory notice had been given to the necessary parties and if the redemption period had expired. The passage of the amendments, however, thrust the judiciary into the procedures and ordained that the courts weigh the evidence adduced at a hearing to determine compliance with tire statutory framework. (See Cherin v. R. & C. Co. (1957), 11 Ill.2d 447, 143 N.E.2d 235.) The court must closely scrutinize the record to determine compliance by the petitioner with the conditions set forth in section 266. (Farlow v. Oliver (1963), 29 Ill.2d 493, 194 N.E.2d 262.) The construction favoring the validity of tax deeds once they have been issued is not synonomous with the disregard of statutory procedure prior to their issuance. Dick v. Mitchell (1968), 103 Ill.App.2d 93, 242 N.E.2d 785.

When viewed in this context, the only reasonable and legitimate inference one can draw from studying the present record is that the petitioner did not properly prove at the hearing payment of subsequent years’ taxes, and therefore the trial court incorrectly entered an order directing the issuance of a tax deed to petitioner. Although petitioner’s counsel told the court that he would like to submit evidence showing payment, and despite the fact that the court responded that petitioner could do so, the record reveals that no documents pertaining to the payment of subsequent taxes were introduced into evidence. Rather, the record indicates that petitioner introduced documents having nothing to do with such payment. To say that petitioner must strictly comply with statutory prerequisites does not necessarily demand that it act with absolute perfection. It likewise does not denote that this court will overlook non-compliance and that we will restructure the statutory scheme under the pretext of judicial construction. Indeed, petitioner’s request to the trial court for a correction subsequent to the filing of respondent’s brief in this court appears to be a recognition that the record did not disclose that petitioner had proved payment of taxes for the years after the sale.

The petitioner argues, however, that the record’s failure to disclose the introduction into evidence of its exhibit was an inadvertent omission by the court reporter and that the trial court’s post-trial order correcting the record, pursuant to its power under Supreme Court Rule 329 (Ill. Rev. Stat. 1971, ch. 110A, par. 329), rectified the mistake and fulfilled petitioner’s statutory duty. In rejecting petitioner’s claim, we deem it unnecessary to consider respondent’s suggestion that Rule 329 should never be applied to tax deed proceedings. Supreme Court Rule 329 reads in relevant part as follows:

"The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies * * * may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court * * *"

The general rule that the filing of notice of appeal abates the trial court of further jurisdiction in a case and correlativély establishes exclusive jurisdiction in the court of review admits of certain exceptions. Hence, it has been held that a purely collateral or supplemental matter will not deprive the trial court of authority to handle it, but when the proposed correction or amendment would remedy a defect of substance so as to create a new case, the line has been crossed, and the trial court is denied the power to grant the requested relief. (Southland Corp. v. Village of Hoffman Estates (1970), 130 Ill.App.2d 311, 264 N.E.2d 451.) Both before and after the adoption of Rule 329, courts have required that the record disclose the basis upon which the amendment or correction is made. (People v. Miller (1936), 365 Ill. 56, 5 N.E.2d 458; Joseph D. Foreman & Co. v. Neri (1972), 6 Ill.App.3d 313, 285 N.E.2d 528.) Yet in the instant case the record does not afford any basis whatsoever for the trial court’s action. (Compare Southland Corp. v. Village of Hoffman Estates, supra.) We are unable to say whether petitioner actually introduced this essential exhibit or whether it failed to do so. Identification of an exhibit does not mean automatic introduction into evidence, because once an exhibit has been marked for identification, the moving party must lay proper foundations to surmount hearsay, authentication, and best evidence problems. Moreover, it is clear that to amend a record after trial or hearing more than oral testimony or proof of mistake is necessary. The proof must be underlined by the production of some noté or memorandum either from the records of the court, or by the minutes of the judge, or by the documents on file in the cause, not by the memory of witnesses, the recollection of the judge, or by supporting affidavits. (People v. Miller, supra; People v. Okulczyk (1951), 410 Ill. 115, 101 N.E.2d 529, cert. denied (1952), 342 U.S. 907; People v. Townsend (1972), 5 Ill.App.2d 924, 284 N.E.2d 414.) The order in the present case correcting the record of the hearing merely recited that the trial judge “consulted” his personal log of the proceedings. We do not believe that such a recital satisfies the requirements of the above holdings, and the attempt to remedy the defective hearing must fail.

We conclude that the petitioner failed to prove one of the prerequisites necessary to obtain a tax deed: that it had paid the taxes for the years subsequent to the sale. In so holding, we are not advocating a hyper-technical construction of tax deed proceedings. The law states that before a person can lose a home for a tax deficiency certain prerequisites must be strictly followed, and it does not provide that speculation may substitute for proof.

Because of our view on this issue, we need not consider the additional contentions advanced by respondent.

For the reasons stated, the judgment order of the circuit court of Cook County is reversed.

Order reversed.

McGLOON and MEJDA, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James J. Naujokas, Jr., Defendant-Appellant.
    (No. 58997;
    First District (3rd Division)
    March 7, 1974.
    MEJDA, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Barry Rand Elden, and Robert S. Levy, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Zygmund Nogas, Defendant-Appellant.
    (No. 59013;
    First District (3rd Division)
    March 7, 1974.
    DEMPSEY, J., took no part.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward M. Campbell, Defendant-Appellant.
    (No. 59277;
    First District (3rd
    March 7, 1974.
    MEJDA, J., took no part.
   PER CURIAM.

Sam Adam, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll and Scott W. Petersen, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ardell Lewis, Defendant-Appellant.
    (No. 58953;
    First District (5th Division)
    March 8, 1974.
    Paul Bradley, Deputy Defender, of Chicago (Brenda Richey, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from a conviction of attempted armed robbery after a jury trial and a sentence of not less than 2 nor more than 6 years in the penitentiary. Defendant contends (1) the court erred in improperly restricting the cross-examination of an identification witness; (2) the State failed to prove defendant guilty beyond a reasonable doubt; (3) the court erred in refusing to hold a hearing on a motion to suppress an in-court identification; and (4) the sentence was excessive.

The facts as testified to by the State’s chief witness, Johnny Watson, are as follows: On October 27, 1972, at approximately 4:30 A.M., defendant and Henry Gregory entered a service station. Defendant approached Watson, an employee of the station, and requested change for a dollar bill. Meanwhile, Gregory waited near a vending machine inside the office with his back turned to defendant and Watson. After Watson removed a roll of money from his pocket in order to place the defendant’s bill with it, defendant yelled to Gregory, “Get him” and immediately Gregory whirled and put a gun to Watson’s head. Watson grabbed the gun and began struggling for control of it and, while the struggle continued, defendant struck him in the face and again on the back of the neck and head. As the struggle continued, all the parties fell to the floor together with defendant on Watson’s back and the gun discharged. After the shot, defendant got up and ran for the door and Watson, then in possession of the gun, ordered him to stop. Defendant backed away from the door and Watson went outside and waved down an approaching patrol car.

Defendant denied participation in tire robbery attempt and asserted that he entered tire station seeking change for bus transportation and that a short time later Gregory entered the station and stood by a vending machine. Defendant denied saying, “Get him” to Gregory, and stated what he said to Watson was “Dig him”, referring to Gregory, and that at that time Gregory turned around and placed the gun to Watson’s head. Defendant testified that after a warning by Gregory, he turned to flee but turned back when he heard Watson call for help. Defendant admitted hitting Watson, but explained that it was done accidentally in his attempt to hit Gregory. Defendant testified that the gun discharged twice, hitting him in the arm and Gregory in the head. After the fight, defendant saw his money scattered on the floor, told Watson he was hit and to call the police. Watson went outside and with his back to the door signalled a police car. Defendant also testified to a speech deficiency from a broken jaw he received several months prior.

On rebuttal, Watson testified that he first saw defendant and Gregory as they walked together towards the station; that he never asked defendant to help him in his struggle with Gregory and that the weapon was fired once. In reference to defendant’s remark of, “Dig him”, Watson testified that defendant spoke in a clear and concise fashion and said, “Get him”.

David Sepulveda, one of the arresting officers, testified that on October 27, 1972, he and Officer Kulekowskis were driving in the vicinity of 31st and Indiana Avenue, and at approximately 5 A.M. they noticed Watson signalling outside the Butler Service Station. The officers entered the station and observed defendant, with his right arm bleeding, standing in front of a desk and Gregory, with a wound in his temple, lying on the floor. Sepulveda testified further that Watson gave his partner a .25 caliber automatic pistol.

The State’s final witness, James Lynch, testified, after denials of defendant’s separate motions to suppress an identification of defendant and for a hearing to test Lynch’s ability to recollect and identify, that on October 24, 1972, he was robbed by two men and, among other things, a .25 caliber automatic pistol was taken. Lynch pointed out defendant as one of the persons involved in his robbery and also identified the weapon used in the instant case as the one taken from him. On cross-examination, Lynch testified that he never identified defendant at a lineup or through a photograph, but did see him at the preliminary hearing for the offense charged here.

On rebuttal, Lynch testified, over defendant’s motions to strike his prior testimony and to exclude any testimony as to the Lynch robbery, that defendant was one of the men who robbed him.

OPINION

Defendant initially argues that in attempting to determine the basis of Lynch’s identification of him, he was precluded from effectively cross-examining Lynch and thereby unable to test his ability to recollect and describe the perpetrators of the crime against him. The record discloses that when defendant became aware that Lynch was to be called as a witness, he moved to bar the use of any evidence of prior crimes. This motion was allowed and later, when Lynch took the stand, defendant’s oral motion to suppress any identification of defendant was denied. Still later, during the direct examination of Lynch, defendant moved for a hearing out of the presence of the jury to test Lynch’s ability to recollect and identify defendant, and the court stated:

“I will deny that motion. You may cross-examine him and bring those matters out.”

Lynch then testified that the gun used in the crime here was one of the weapons taken from him a few days earlier, and he pointed out defendant as one of the men involved in his robbery. Lynch, in response to an inquiry as to whether defendant took his gun, answered, “I assume he [defendant] was one of the men that took the gun.” He further answered, on cross-examination, that he never viewed a lineup nor did he present charges against or identify anybody in regard to his robbery. Lynch testified he was asked by the police to appear at the preliminary hearing and to view defendant there after having been told by the police that defendant was going to be charged with the offense in the instant case.

Defendant then testified that he was not involved in the attempted robbery and denied any participation in the Lynch robbery. He made the statement that Lynch testified at the preliminary hearing to the effect that defendant was not involved in his robbery, which brought Lynch back to the stand, in rebuttal, to deny having said at the preliminary hearing that defendant was not involved in his robbery, and he again identified defendant as one of the men who robbed him. Then, on his cross-examination, after noting that the State had “opened the door”, the court stated defendant could question Lynchs identification. However, the court then sustained objections to a series of questions directed at Lynch concerning (1) the descriptions, if any, which were given to the police of the participants in his robbery; (2) whether Lynch had viewed any photographs of defendant or any other persons; and (3) the speech of the robbers.

While cross-examination must always be held within reasonable limits, an accused has a right to question identifying witnesses concerning any matter which goes to explain, modify or discredit what has been stated in direct examination. (People v. Morris, 30 Ill.2d 406, 197 N.E.2d 433.) Here, we note that on his direct examination, Lynch, after pointing out defendant as being involved in his robbery, then testified that he assumed defendant was one of those who stole the gun. At this point, defendant’s attorney did not test the identification by Lynch, apparently being satisfied that, as an assumption, it could be more effectively handled on argument to the jury. However, after Lynch testified on rebuttal that defendant was one of the men who robbed him, defendant’s attorney attempted to question the identification but was prevented from doing so although the trial judge had on two prior occasions stated that defendant’s attorney could cross-examine Lynch concerning his identification. In view thereof, and because of the significance of Lynch’s testimony as more specifically set forth below, we believe that defendant’s right to cross-examine concerning this identification was unduly restricted.

Having reached this conclusion, we must now determine whether this error was harmless or of such a nature as to require a reversal. In order to determine error to be harmless, we must believe, based upon the facts and circumstances disclosed in the record, that it was harmless beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.) Here, defendant asserts he did not come to the gas station with Gregory and that he was assisting Watson. The only testimony, other than that of Watson, which involved defendant, is Lynch’s identification. It not only associated defendant with the gun used by Gregory but also informed the jury that the defendant had been involved in a prior robbery and created the inference that he and Gregory were working together. There were many inconsistencies in the testimony of Watson and defendant and, in view thereof, it is conceivable that, absent the Lynch testimony, the jury might have accepted the version of defendant that he was assisting Watson rather than participating in the offense. In any event, the identification was an important factor in this case, and defendant was entitled to test the accuracy of it by questions concerning any matter which went to explain, modify or discredit it. People v. Pelletri, 323 Ill. 176, 153 N.E. 591.

After reviewing the facts and circumstances here, we are unable to conclude beyond a reasonable doubt that the restriction of the cross-examination of Lynch could not have contributed to the conviction, and therefore the error cannot be said to be harmless. (Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed.2d 171, 84 S.Ct. 229.) Accordingly, we are of the opinion that defendant should have a new trial.

Defendant also contends he was not proven guilty beyond a reasonable doubt. In his brief in support of this contention, he does not mention the Lynch testimony and points only to the inconsistencies in the testimony of Watson and defendant. He argues that because of this disparity, the facts are so unconvincing that the conviction should not stand. It is well established that the decision of the trial judge as to credibility of witnesses will not be disturbed unless it is based upon evidence which is so unsatisfactory as to raise a reasonable doubt of guilt (People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378), and that the testimony of one witness, if positive and credible, is sufficient to sustain a conviction even though contradicted by the accused. People v. Bonds, 132 Ill.App.2d 827, 270 N.E.2d 575.

Here, the discrepancies in the testimony of defendant and Watson affected only their credibility, which is a matter for the trier of fact to determine. (People v. Thomas, 127 Ill.App.2d 444, 262 N.E.2d 495.) The jury, in addition to the apparent positive testimony of Watson, had the benefit of the identification testimony of Lynch, which, although cross-examination was restricted, was properly considered in the determination of defendant’s guilt beyond a reasonable doubt, and, from our review of the record, we cannot say this finding was erroneous.

In view of our conclusion that defendant is entitled to a new trial, it will not be necessary to discuss the remaining contentions of defendant.

For reasons stated, defendant’s conviction is reversed and this cause is remanded for a new trial.

Reversed and remanded.

DRUCKER and LORENZ, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Norman Norys, Defendant-Appellant.
    (Nos. 57559, 57880 cons.;
    First District (1st Division)
    March 11, 1974.
    GOLDBERG, J., took no part.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Robert M. Gray, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mariann Twist, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Hillard Neeley, a/k/a Hillard Neely, et al., Defendants-Appellants.
    (Nos. 57595, 58588 cons.;
    First District (1st Division)
    March 11, 1974.

      Allan A. Ackerman, of Chicago, for appellant Hillard Neeley.
    James J. Doherty, Public Defender, of Chicago (Alan David Eckstein, Assistant Public Defender, of counsel), for appellant Edward Adams.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

The defendants were found guilty by a jury of the offense of armed robbery. Defendant Neeley was also found guilty of rape. Each defendant was sentenced to a term of 4 to 6 years in the penitentiary. The defendants appeal. The appeals have been consolidated.

On July 9, 1971, at approximately 10:30 P.M., Elzada Williams and her sister, Vera Gardner, left their aunt’s house and were walking on Homan Avenue near Garfield Park. They were accosted by four male persons. One assailant approached Elzada from behind and put a razor to her throat. Another threatened Vera Gardner with a knife. The women were forced to walk into the park and sit on adjacent benches. Each woman was accompanied by two offenders. The women’s purses were taken, searched and thrown in a nearby garbage can. Elzada Williams was led to a bushy area of the park and forced to engage in sexual intercourse with her assailants. The attackers then directed Vera Gardner to help her sister dress. The women were with their assailants for about 1 hour and 20 minutes. The four men ran away and the women unsuccessfully sought help at a nearby gas station. They then returned to their aunt’s home, from which the police were summoned. The women went back to the park with the police. Their purses were found in the garbage can. After this, the women were taken to County Hospital, where Elzada was examined.

The following day, Vera Gardner and her husband were out shopping when Vera noticed a group of young men on the comer of Franklin Boulevard and Kedzie Avenue. She thought that the four attackers were among them. After circling the block in their car several times to be sure of her identification, Vera and her husband went in search of the police. When they returned to the corner, however, the four were not there. Later that day she spotted one of the assailants on the comer of Fulton and Kedzie. While she was talking to him, defendant Neeley and another person whom Vera recognized from the night before joined them. Vera sent for her sister, who came over and agreed with Vera’s identification of the three as their assailants. The police were called and the three were arrested. Defendant Adams was arrested on July 12, 1971, after Vera saw him enter a second floor apartment in her building.

Elzada Williams testified that after she was grabbed from behind, she saw defendant Adams with his arm around Vera’s waist. She stated that when they reached the benches in the park, defendants Adams and Neeley were with Vera. The two other assailants, both juveniles, were with Elzada. One of the juveniles took her purse, which contained $5, 2 weeks’ worth of GTA tokens and a watch, all of which were missing when the purse was recovered from the garbage can. She saw Neeley take Vera’s purse to the garbage can. She said the two juveniles walked her deeper into the park, where, at razor-point, she was forced to undress. The two juveniles raped her. While one juvenile was still on top of Elzada, Vera was brought over to them. Then a juvenile and Neeley took Vera away and Elzada was left with the other juvenile and defendant Adams. She said that * * he took his turn and then one of them left and then McNeeley [sic] came over.” She testified that Neeley then had intercourse with her, during which Vera was returned to the area. When Neeley was finished, Vera was told to help Elzada dress.

Vera Gardner testified that while walking on Homan Avenue someone grabbed her and she felt, rather than saw, him put a knife to her side. She saw someone grab Elzada around the neck. She identified Adams as the one who grabbed her (Vera) and immediately took her purse. She identified defendant Neeley as the one walking on the other side of her. They walked to the benches and Adams asked for the rest of her money. She denied having more than the approximately $50 in her purse. She stated that Neeley searcher her purse and said he would leave her no money to call the police. After the two juveniles took Elzada away, Vera saw the knife held by Adams; she said it was a dagger, between 8 and 12 inches long. She was brought by Adams and Neeley to where Elzada was. One of the juveniles was on Elzada. Vera begged them not to rape the women. Adams said they would not, and Adams and Neeley took Vera to another section of the park. She told them that she had recently had surgery and begged them not to rape her. One of the juveniles came over to them and stayed while Adams left. The other juvenile came over and Neeley went in the direction of Elzada. Vera was ■ then taken back to Elzada, and she saw Neeley on top of Elzada, “moving as if he was having sexual intercourse.” She identified the two juveniles and Neeley the following day as her attackers, and she called the police when she saw Adams enter a nearby apartment.

The defendants both asserted alibi defenses. As to defendant Neeley, Patricia Brown testified that she arrived at the home of Mary Wright, Neeley’s girl friend, at about 8:30 P.M. on July 9. Neeley was there. Patricia left at about 9:30 P.M. Neeley’s mother testified that Neeley and Mary Wright arrived at the Neeley home at about 11:30 P.M. on July 9. Neeley’s sister testified that she arrived home about 12:30 that night and Neeley was there with Mary Wright and Neeleys’ mother. All three women testified that Neeley’s clothing was not disarranged.

As to defendant Adams, Carol Jackson, his sister, testified that Adams went out about 6 or 6:30 P.M. on July 9 and returned home with Iris girl friend at about 9 P.M. She stated that he played cards with her and their mother for a good while, after which they played records and watched television. Carol went to her home about 11:30 P.M. Adams’ uncle testified that Adams went out at about 6 or 7 P.M. on July 9 and returned alone about 10 P.M. He said that Adams’ girl friend had been at the Adams home all day. He further testified that the following day he shaved Adams’ head. Carol Jackson had testified that Adams was home on leave from the navy and that he had a mustache and a military haircut on July 9. Adams’ mother testified that Adams went out at 6 P.M. and returned at 9 P.M. She said that Adams went to bed at 11 P.M. and his girl friend came over after he went to bed. She stated that his clothes when he returned to the house looked as they had.when he left. She testified that his hair was cut on the following day.

Defendant Adams argues that the identification evidence, coupled with his alibi defense, raises a reasonable doubt of his guilt. He notes that neither victim mentioned certain of his distinguishng characteristics in describing her assailants to the police on the night of the attack. Specifically, neither mentioned that one assailant had a shaved head and a mustache, although Adams had a military haircut and mustache on July 9. At trial the two women testified that Adams had a shaved head or was almost bald on the night of the attack, and they both said they could not remember him having a mustache. When he was arrested on July 12, Adams had both a shaved head and a mustache.

It is settled that precise accuracy in describing facial characteristics, including the presence of a mustache, is unnecessary if the identification is positive. (People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378.) The identification testimony in this case was positive. The women were with their attackers for about an hour and 20 minutes. They were accosted on a lighted street. In spite of defense counsel’s somewhat confusing use of number designations instead of names for the assailants on cross-examination, the women unswervingly identified defendants Adams and Neeley as the persons who attacked them.

Defendant Adams argues that the womens failure to notice his mustache raises a reasonable doubt of his guilt. It has been held that failure to notice a mustache discredits identification testimony, because a mustache is something which is not normally overlooked. (People v. Marshall, 74 Ill.App.2d 483, 221 N.E.2d 133.) The record in this case indicates that defendant Adams’ mustache was not easily perceived. His uncle, who testified for him, was unsure at trial whether his nephew had a mustache. To determine whether he did have one, the uncle left the stand to observe his nephew more closely. There was no evidence that the mustache was more easily discernible on the night of the attack, and the jury could have concluded that the witnesses were justified in aot noticing it. The sufficiency of the identification evidence was for the trier of fact to determine. We will not disturb that finding unless the evidence is so improbable or unsatisfactory as to create a reasonable loubt of the defendant’s guilt. People v. Holt, 124 Ill.App.2d 198, 260 N.E.2d 291.

Vera Gardner testified that she is 5' 5" tall and defendant Adams is :he same height. She denied telling a pohce officer, on the night of the ittack that two of the offenders were 5' tall. Defendant Adams argues :hat this discrepancy illustrates the weakness of her testimony. We find, xowever, that whatever discrepancy appears in the testimony was for he jury to assess. The jury here weighed the identification testimony igainst the alibi defenses. No reasonable doubt is raised by the record n this case. People v. McGee, 21 Ill.2d 440, 173 N.E.2d 434.

The defendants’ next argument is that the trial court’s refusal o give their proffered instruction on identification deprived them of a tatement to the jury of their theory of defense. (People v. Laczny, 63 Ill.App.2d 324, 211 N.E.2d 438.) We find, however, as did the IHinois Supreme Court under similar circumstances (People v. Fox, 48 Ill.2d 239, 269 N.E.2d 720), that the jury was adequately instructed on the subject of identification. IPI-Criminal instruction No. 1.02 on credibility of witnesses and No. 2.03 on the presumption of innocence and the State’s burden of proof were given to the jury in this case as they were in Fox. We also find that the instruction tendered by the defendants violates the spirit of Supreme Court Rule 451(a), relating to the use of non-IPI Criminal instructions (Ill. Rev. Stat. 1971, ch. 110A, par. 451(a)), in that it is not simple, brief, impartial and free from argument. The instruction was properly refused.

Nor do we find any merit in defendant Neeley’s argument that the lack of an instruction on alibi denied him a fair trial. The Illinois Supreme Court has approved the recommendation contained in IPI-Criminal instruction No. 24.05 that no instruction on alibi be given. People v. Poe, 48 Ill.2d 506, 272 N.E.2d 28.

The defendants argue that they were denied a fair trial by statements made by the prosecutor during voir dire and closing argument. The challenged statement during voir dire was made when a prospective juror, who was later excused by the State, indicated that he wished to know the sentence for the crimes with which the defendants were charged. He stated that he did not believe in long prison sentences. The prosecutor responded:

“Then could you really make a fair and impartial decision not knowing what the sentence will be? Of course, you know it doesn’t necessarily have to be a prison term. It could also be probation?”

Defense counsel’s objection was overruled, and a proffered instruction to the effect that probation was not possible upon a guilty verdict in this case was refused.

The purpose of voir dire examination is to secure a fair and impartial jury. (People v. Lobb, 17 Ill.2d 287, 161 N.E.2d 325.) The Illinois Supreme Court has held that reversal is not required where the potential sentence is revealed to the jury by instruction (People v. Papke, 325 Ill. 410, 156 N.E. 375) or before voir dire (People v. Dewey, 42 Ill.2d 148, 246 N.E.2d 232), regardless of whether the jury ultimately determines the penalty (People v. Talbe, 321 III. 80, 151 N.E. 529). Where the possibility of probation has been introduced, however, and the jury may have been influenced in reaching a guilty verdict, the Illinois Supreme Court has ordered the judgment reversed. (People v. Burgard, 377 Ill. 322, 36 N.E.2d 558; People v. Klapperich, 370 Ill. 588, 19 N.E.2d 579.) Reversal was required although there was no question that probation was in those cases a possible penalty. That is not the case before us. Here the prosecutor misstated the applicable law; he said that probation was a possible penalty following a guilty verdict. The defendants were charged with rape (Ill. Rev. Stat. 1971, ch. 38, par. 11—1) and armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18—2). A sentence of probation was not permitted for either offense at the time of trial (Ill. Rev. Stat. 1971, ch. 38, par. 117—1(a)), nor is it possible under the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—5—3). We find that the jury, which deliberated the defendants’ guilt or innocence in the erroneous belief that probation was a potential penalty, may very well have been influenced by the introduction of the possibility of probation. The Illinois Supreme Court saw fit to order reversal even when a trial judge sustained a defense objection to the prosecutor’s statement (regarding probation) and ordered the jury to disregard such statements. (People v. Burgard, 377 Ill. 322, 36 N.E.2d 558.) In the case before us, defense counsel’s objection was overruled, and defendant Neeley’s proffered instruction, to the effect that rape is not a probationable offense, was refused. The trial judge here made no attempt to correct the prosecutor’s error. The judge’s repeated admonitions that he alone would determine the sentence upon conviction were not enough to remedy the trial error. We are compelled to reverse the judgments and remand the causes for new trial. In view of this decision, we do not consider the defendants’ other arguments regarding prosecutorial misconduct.

Judgments reversed and causes remanded with directions.

EGAN, P. J., and HALLETT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Curtis Lee Smith, Defendant-Appellant.
    (No. 58050;
    First District (1st Division)
    March 11, 1974.
    EGAN, J., took no part.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: PER CURIAM:

text:
    The People of the State of Illinois et al., Plaintiffs-Appellees, v. Gabriel Nieto, Defendant-Appellant.
    (No. 59021;
    First District (1st Division)
    March 11, 1974.

      Rehearing denied March 28, 1974.

      BURKE, J., took no part.
    Paul Bradley, Deputy Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

Following a bench trial, die defendant, Gabriel Nieto, was convicted of the October 26, 1972, aggravated assault of one Marcella Bauml (Ill. Rev. Stat. 1971, ch. 38, par. 12—2(a)(1)) and sentenced to the Illinois State Farm at Vandalia for the term of 1 year; he was also convicted of failure to have an Illinois firearm owner’s identification card (Ill. Rev. Stat. 1971, ch. 38, par. 83—2) and sentenced to 1 year at Vandalia, concurrent with the previous sentence, and convicted of failure to register the firearm in question with die city collector of the City of Chicago as required by chapter 11, section 1—7 of the Municipal Code of the City of Chicago and fined $500. Defendant contends (1) tiiat the evidence was not sufficient to prove his guilt beyond a reasonable doubt of the firearm charges (he does not dispute the aggravated assault finding) and (2) that he is entitied to be resentenced to “time served” under the Unified Code of Corrections.

Val Snoble testified tiiat she is a bar maid at 1804 South Ashland in Chicago and on October 26, 1972, about 10:30, the defendant came into the tavern and asked for a drink. She told him he had had enough, to go home. After she had served another customer, the defendant pulled out a gun and said, “You’re going to serve me.” She became frightened and hollered, “He’s got a gun.” She crouched behind the bar. When the owner came out, the defendant turned his back on the witness and pointed the gun in the direction of the owner and the witness ran to the washroom.

Mrs. Bauml testified that she owns the tavern at 1804 South Ashland and on October 26, 1972, at 10:30, she saw the defendant come in the door. Noticing that he was intoxicated, she signaled the bar maid not to serve him. The defendant asked her (the witness) for a drink, she said sorry, he had had enough, and went to answer the phone. So far as she could see, the defendant did not have a gun on his person when he walked in. She heard the bartender yell and came out of the phone booth. The defendant came down the length of the tavern to the telephone booth, held the gun on her and said, “Do I get a drink or do I have trouble?” She went upstairs to her apartment and called the police.

Chicago Police Officer Joseph Frank testified that on October 26, 1972, he responded to a call at 1804 South Ashland and observed the defendant running, pursued him down an alley and recovered People’s Exhibit No. 1, the weapon, which was admitted in evidence. After advising the defendant of his constitutional rights, he asked him whether or not he had a State firearm owner’s identification card and defendant said, “Get out.”

As to the violation of the Municipal Code of the City of Chicago, this charge was listed in the notice of appeal, but the record does not show that a copy of the notice of appeal was served on the City of Chicago. Neither were copies of the briefs filed in this court served upon the City of Chicago. Defendant has, therefore, not properly perfected an appeal from the City charge as required by Supreme Court Rule 303(d). Accordingly, the defendant’s appeal from his conviction on the City charge must be dismissed. People v. Claudio, 13 Ill.App.3d 537, 539, 300 N.E.2d 791.

It is clear that the State failed to prove that the defendant did not have in his possession a State firearm owner’s identification card as required by paragraph 83—2 of chapter 38 of the Criminal Code. And on this point, the State has confessed error. Consequently, the conviction for failure to possess a State firearm owner’s identification card must be reversed.

Defendant correctly contends that the sentence for aggravated assault contravenes the provisions of the Unified Code of Corrections. Aggravated assault is now a Class A misdemeanor. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 12—2(b).) The penalty for a Class A misdemeanor is any term less than 1 year. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—8— 3(a)(1).) The sentence for aggravated assault is, therefore, reduced to 364 days and, as modified, the judgment of the circuit court of Cook County, finding the defendant guilty of aggravated assault, is affirmed. People v. Johnson, 15 Ill.App.3d 741, 305 N.E.2d 208.

Judgments reversed in part, affirmed in part as modified and appeal dismissed in part.

Mr. JUSTICE BURKE took no part in the consideration or decision of this case.


author: Mr. JUSTICE DOWNING

text:
    Case International Company, Plaintiff-Appellant, Cross-Appellee, v. American National Bank & Trust Company of Chicago, as Trustee, et al., Defendants—(Martin C. Faye et al., Plaintiffs-Appellees, Cross-Appellants, v. Hyde Park Condominium, Inc. et al., Defendants-Appellants.)
    (No. 56518;
    First District (2nd Division)
    March 12, 1974.
    Herrick, McNeil, McElroy & Peregrine, of Chicago (Ray W. Fick, Jr., and Michael J. Hamblet, of counsel), for Case International Company.
    David Chaimovitz, of Chicago (Peter Fitzpatrick and Alfred L. O’Connor, of counsel), for Hyde Park Condominium, Inc.

      Bernstein, Golan & Yalowitz, of Chicago (Earle G. Fallen, of counsel), for Martin C. Faye.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

After a consolidated bench trial of actions to foreclose the lien of a trust deed on a tract of real estate, and to foreclose several mechanic’s liens on the same tract of land, the trial court entered a decree giving rise to this appeal.

On June 13, 1968, Case International Company (hereinafter “Case”) filed its complaint to foreclose its mechanic’s lien against the American National Bank and Trust Company (hereinafter “American”) as trustee under Trust No. 22916, tire Chicago Title & Trust Co. as trustee under a trust deed, Hyde Park Condominium, Inc. (hereinafter “Hyde Park”), and unknown owners. (Cause No. 68 CH 2441.)

In its complaint, Case alleged a written agreement with Hyde Park whereby Case agreed to furnish all labor and materials necessary to install 61 caissons upon real estate located at 5400 S. Hyde Park Boulevard in Chicago. Title to tire real estate was held under Trust 22916. Case further alleged performance of its duties under the contract; that Hyde Park had ignored its requests for payment of $63,022.11; that it was entitled to a mechanic’s lien upon the real estate in that amount; and that it had caused its lien to be filed with the recorder of deeds on June 7, 1968.

American, both as trustee and as holder of the note, filed answers. Thereafter, American, in its capacity as holder of the note, was dismissed since on April 30, 1969 it transferred and assigned the note to the Manufacturer’s National Bank.

On June 16, 1969, the trial court granted the petition of Martin C. and Vivian Faye for leave to appear since the trust deed relating to the real estate and note securing it had been assigned to Manufacturer’s National Bank as agent for the Fayes. In their answer to Case’s complaint, the Fayes denied any knowledge of a contract between Case and Hyde Park or that Hyde Park was general contractor for the real estate, and, alleged that Case’s claim was inferior to the lien of the trust deed.

On July 1, 1969, the Fayes filed their complaint to foreclose the trust deed against, among others, American as trustee under Trust No. 22916, Case, Leroy J. Snitoff (hereinafter “Snitoff”) and various subcontractors. (Cause No. 69 CH 2330.) The Fayes brought suit in their alleged capacity as “legal holders of the Note secured by the said Trust Deed.” In its answer to this complaint, Case claimed it did not have sufficient knowledge to admit or deny the information concerning the mortgage (trust deed) but denied tire Fayes’ allegations of their paramount lien as holders of the note. Case alleged as affirmative defenses: (1) the priority of its mechanic’s lien over the lien of the trust deed, and (2) that the Fayes, Snitoff, and American as trustee under Trust No. 22916 knowingly permitted a contract to be entered into with Case and that $63,-022.11 had been due to Case since May 5, 1968. Replying to these affirmative defenses, the Fayes again asserted the superiority of the lien of the note and trust deed and denied any knowledge of a contract between Hyde Park and Case.

The trial court consolidated Case’s action to foreclose the mechanic’s lien with the Fayes’ action to foreclose the trust deed.

On April 17, 1970, Snitoff filed both an answer to the complaint to foreclose the trust deed and a counterclaim. The essence of Snitoff’s answer— joined in by Hyde Park—was a denial of the Fayes’ right to foreclose the trust deed since, it was alleged, the Fayes were nominees for others and the note was being held in trust for the benefit of Snitoff, Hyde Park, and others. Snitoff’s counterclaim alleging, inter alia, an oral agreement between himself and Martin Faye and Faye’s breach of that agreement will be dealt with more specifically in a subsequent portion of this opinion.

During the proceedings, M. E. Stein & Company (hereinafter “Stein”) filed its cross-complaint to foreclose a junior trust deed against Snitoff and Hyde Park. Snitoff followed by filing a counterclaim against Faye and Stein alleging that, at the instance of Faye, he negotiated with Stein for a junior mortgage loan against the premises; that Stein charged an usurious rate of interest on the loan; and that Faye conspired with Stein to charge the alleged usurious interest and, thus, breached his fiduciary duty to Snitoff as a joint venturer. In answer to Snitoff’s counterclaim, Stein admitted extending a second mortgage loan on the property, requested that the allegations of usury be stricken since the loan was made to a corporate trustee and, thus, was not controlled by the usury laws, and denied any conspiracy with Faye. Faye’s answer to the counterclaim, in essence, mirrored Stein’s answer.

Having conducted extensive hearings on these matters, the trial court entered its decree of foreclosure wherein it ordered as follows: that all the material allegations in the Fayes’ complaint to foreclose the trust deed were true and proven; that, by virtue of the trust deed and note secured thereby, certain costs, fees, and advancements were due to the Fayes; that a number of proven mechanic’s liens were subordinate to the lien of the trust deed; that Case had proven and was entitled tó a mechanic’s lien in the amount of $63,022.11 but that Case’s work, labor, and materials had enhanced the premises only to the extent of $30,000; that this amount plus 5% interest from April 19, 1968, to date of decree (or $34,577.70) was entitled to priority over the lien of the Fayes for principal, interest, and advancements but subordinate to their lien for costs and expenses; that the balance due Case plus interest (or $38,-119.57) was subordinate to the lien of the trust deed and all costs, fees, and advancements due thereunder; that Steins encumbrance was subordinate to the lien of the Fayes and each mechanic’s lienholder; that the material allegations in Snitoff’s counterclaim were not proven and the counterclaim was dismissed; and that the rights and interest of Snitoff, Hyde Park, and others were subject to the liens of the Fayes, the mechanic’s lien claimants set out in the decree, and Stein’s junior encumbrance. The decree further provided for a public sale of the real estate by the sheriff and specified the priority of the proceeds.

Case subsequently filed its notice of appeal, stating that it appealed from the decree insofar as the decree subordinated Case’s mechanic’s lien to the lien of the first trust deed and costs, fees, and advances further found due therein.

Snitoff filed a motion to vacate the decree of foreclosure and that motion was denied.

The Fayes cross-appealed from that portion of the decree which gave part of Case’s mechanic’s lien priority over the Fayes’ lien for principal, interest, and advancements and the portion of the decree granting distribution of proceeds from the sheriff’s sale to Case before the Fayes had been reimbursed in full for principal, interest, and advancements.

Snitoff appealed from both the order denying his motion to vacate the decree of foreclosure and from the court’s finding that he had not proved the allegations of his counterclaim.

The records of this 'court indicate that Hyde Park did not file any notice of appeal or cross-appeal. Illinois Supreme Court Rule 303 (Ill. Rev. Stat. 1969, ch. 110A, par. 303) sets forth the requirements for appeals from final judgments of the circuit court in civil cases. It is a fundamental requirement that the filing of a notice of appeal or cross-appeal within the period as set forth in the rule is mandatory and jurisdictional.

Notwithstanding Hyde Park’s failure to comply with Rule 303, there has been filed in this court briefs and motions in which Hyde Park has been identified as a “Defendant-Appellant.” This procedure cannot breath life into a party not properly before this court. Having failed to file a timely notice of appeal, this court lacks jurisdiction to consider Hyde Park’s attack, as an appellant, on the judgment of the trial court. See Theobault Olson Co., Inc. v. Petta (1st Dist. 1972), 6 Ill.App.3d 537, 286 N.E.2d 163.

I.

Prior to the date set for oral argument of these appeals, Case filed with this court a stipulation between itself and Faye to dismiss both the appeal of Case and the cross-appeal of Martin and Vivian Faye. Snitoff not being a party to this stipulation, this court granted him leave to file objections to the stipulation.

Snitoff and Hyde Park, in their objections, characterize the settlement as “conjecture * * * possibilities and probabilities.” The gist of their objections is based on the fact that Snitoff and Hyde Park were not informed as to the basis of the settlement.

In reply to the said objections, Case, by way of an affidavit, presented to this court a suggestion that the subject property was sold on March 29, 1971, to N. Field, Inc. (not a party to this litigation), for non-payment of real estate taxes. A tax deed for said property to N. Field, Inc., is dated May 31, 1973, and recorded with the recorder of deeds of Cook County, Illinois, on June 8, 1973.

Although we find no error in that portion of the decree which subordinated part of Case’s mechanic’s lien to the lien of the trust deed and that portion which gave priority to part of Case’s mechanic’s lien over the Fayes’ lien for principal, interest, and advancements, we grant the motion of Case that its appeal against the Fayes and tire cross-appeal of the Fayes against Case be dismissed without costs and that the surety bond filed by Case, as a supersedeas appeal bond, be discharged.

II.

We turn now to Snitoff’s appeal from the dismissal of his counterclaim and from the trial court’s finding in favor of the Fayes. The Fayes failed to file a brief in this matter but this court may nonetheless consider the merits of the appeal. Daley v. Jack’s Tivoli Liquor Lounge (1969), 118 Ill.App.2d 264, 254 N.E.2d 814, in an opinion by Justice Robert English, provides a learned and exhaustive review of many cases wherein briefs of an appellee are not filed in this court. As Justice English said (p. 272):

“[W]e now conclude that the avoidance of injustice and the doing of substantial justice are concepts sufficiently sound as standards of judicial function to require their application to all cases without any process of selection.”

In this case, the trial court patiently sat through hours of testimony. A lengthy order was entered resolving the complicated issues. To allow that effort and work to be “defaulted” because the winner in the court below does not file a brief would strike a serious blow at the efforts and integrity of the judicial system. This is not to suggest we condone tire failure of an appellee to file a brief, as short as it might be, in support óf the trial court’s order.

We note that Snitoff raises a number of issues for our review, to wit: whether Faye agreed to forebear any collection of the note secured by the trust deed; whether, in purchasing the note, Faye acted as trustee for Snitoff; and whether Faye’s institution of a foreclosure proceeding was so wilful and malicious a breach of Faye’s obligation as to entitle Snitoff to punitive and exemplary damages. In light of the trial court’s finding though, that “the material allegations in the counterclaim of Lee J. Snitoff were not proven,” we are of the opinion that the only issue remaining for this court’s consideration is whether there was sufficient evidence to support the trial court’s finding. Resolution of this issue necessitates a brief recapitulation of the record as to the facts giving rise to the actions that form the basis of this appeal.

During the summer of 1965, Snitoff noticed a piece of property at 5400 S. Hyde Park Boulevard and, having just constructed a condominium across the alley, decided he would try to develop the new site in the same manner. In September or October of the same year, Snitoff determined that the purchase price of the land was $300,000, spoke to the Fayes, and they orally agreed to pursue the venture together. Faye and Snitoff agreed each would contribute $30,000 toward the purchase price; that Snitoff would obtain financing for the $240,000 balance; that profits would be split on a 50-50 basis; and that Snitoff would handle construction of the building while Faye would handle advertising and promotion.

Snitoff’s efforts to secure financing failed, whereupon, Faye assumed the task and approached American where the loan officer refused to lend them any amount in excess of 50% of the value of the land or $150,000. The following series of transactions then took place in order to effect the purchase of the property:

1. American became the fee simple titleholder of the real estate as trustee under Trust No. 22916;

2. Faye and Snitoff each contributed $30,000 to be applied against the purchase price;

3. Faye arranged for first mortgage financing in the form of a land loan, and additional financing, aggregating $240,000 with the land loan; said land loan was for $150,000 and was secured by a first mortgage by American as trustee under Trust No. 22916 to the Chicago Title and Trust Co. and recorded February 8, 1966 as Document No. 19734110; said additional financing took the form of a loan in the sum of $90,000 secured by a stock trust established by Mrs. Faye. All of the above loans were further secured by Faye and Snitoff’s assignment of their beneficial interest in Trust No. 22916 (the land trust), as a pledge to American in its individual capacity.

Thereafter, to resolve the conflicting allegations in Snitoffs counterclaim and Faye’s answer, the testimony at the hearing pertained to arrangements for the design, construction, advertising, promotion and sale of the proposed high-rise and units therein; whether Faye was to make additional money contributions; whether Snitoff was to sell Faye’s interest; the expenses incurred by Snitoff; and the efforts to secure additional financing.

Snitoff claimed that some time in October 1968, after negotiations with Faye on the matters referred to above, they entered into an oral agreement. This alleged oral agreement covered many points, but the principal ones which go to the heart of Snitoffs contention are that, in consideration for Snitoff paying Faye $169,000 on account of Faye’s indebtedness, Faye was to arrange a refinancing of the $150,000 first mortgage indebtedness, and, that Faye agreed not to foreclose the $150,000 mortgage for a 5-year period unless one of the two following conditions occurred prior thereto:

(i) sale of the premises by Snitoff at a price satisfactory to Snitoff; or
(ii) first mortgage financing was obtained by Snitoff in an amount deemed sufficient by him to complete the construction of the high-rise condominium project and provide funds to discharge the $150,000 first mortgage balance.

Responding to this alleged oral agreement, Faye denied its existence, admitted only that he and Snitoff undertook to deliver a general release to each other, and further maintained that the relationship of the parties had been set forth in a memorandum of the transaction dated October 30, 1968 filed as “Exhibit B” with objections filed by the Fayes. Most particularly, Faye denied having ever agreed with Snitoff or any other person not to foreclose the $150,000 mortgage for a 5-year period.

Snitoff then alleged an oral agreement with Marvin Lundy whereby Faye’s and Snitoffs beneficial interest in the land trust would be assigned to Lundy to secure his $123,000 contribution to the project. Faye denied this allegation stating that the assignment of their beneficial interest to Lundy was an “outright purchase” by him.

Snitoff further alleged that, pursuant to the oral agreements, Lundy paid $103,000 and Snitoff contributed $46,000 to pay American for purposes of discharging the $70,000 balance of principal and $9,000 interest on the $90,000 note (after which the bank released Faye’s collateral) and to reimburse Faye for his initial $30,000 investment and subsequent contributions. Faye responded that these matters were set forth in certain exhibits attached to the objections previously filed.

Both Snitoff and Faye agree that they then each assigned their beneficial interest in the land trust to Lundy; that American released to Faye his collateral pledged for the original $90,000 personal loan; that Faye by his wife deposited with American a certificate of deposit for approximately $70,000 so as to induce the bank to retain and extend the $150,000 mortgage.

Snitoff then alleged that approximately 6 months later, in response to American’s request to Faye that he arrange to have the mortgage purchased, Faye asked Peoples National Bank (hereinafter “Peoples”) and Sam Hillman (chairman of the board of Peoples) to purchase said mortgage. Faye denied the allegations stating the fact to be that American had notified both Snitoff and Faye that it would sell the collateral upon default of the obligation.

Snitoff next alleged that, in May or June 1969, American sold the $150,000 mortgage to Peoples, to Sam Hillman individually, to Faye individually, or possibly to Faye as an undisclosed agent for Hillman, himself, and/or possibly others, and that he believes Faye did not have the cash himself to acquire the mortgage notwithstanding Faye’s assertion that he and his wife are the holders of the notes secured by said mortgage (trust deed). Faye, on the other hand, asserted that American did sell the mortgage to the Fayes in compliance with guarantees given by Faye and Snitoff upon the last extension of the due date of the note; and that, although he and his wife were without the cash to acquire the mortgage, they were able to obtain financing to do so.

In conclusion, Snitoff urged the court to enjoin Faye from attempting to sell, assign, transfer, pledge, or deliver the note secured by the mortgage without first endorsing upon it that any such disposition is subject to the rights of Snitoff under his contract and further requested a decree for specific performance to compel Faye to hold the note for a period of 5 years from October 28, 1968.

Having alleged a number of oral contracts as the basis of his right to relief, Snitoff bore the burden of establishing the existence of those agreements (C. Iber & Sons, Inc. v. Grimmett (1969), 108 Ill.App.2d 443, 248 N.E.2d 131). At trial, Snitoff offered no evidence of the aHeged agreements other than his own testimony. Martin Faye, on the other hand, denied having made any of the oral agreements aHeged by Snitoff. Presented with the inevitable issue of fact, the trial court found in favor of the Fayes.

As a general rule, findings of the trial court in nonjury cases should be given due weight and consideration (Stephenson v. Kulichek (1951), 410 Ill. 139, 147, 101 N.E.2d 542) and will not be disturbed on review unless palpably wrong or against the manifest weight of the evidence (Brown v. Commercial National Bank (1969), 42 Ill.2d 365, 371, 247 N.E.2d 894). In our review of the record, particularly in view of the fact that Snitoff bore the burden of proof in this matter, we have found no evidence offered by Snitoff at trial to persuade us that the trial court’s findings pertaining to Snitoff were erroneous.

Subsequent to the date set for oral argument, Hyde Park and Snitoff filed in this court a motion, based on the failure of Faye to file a brief, (i) to declare as moot the issue as to whether Faye can foreclose, (ii) to declare the other issues as confessed by Faye and (iii) to remand the cause to the trial court for such other proceedings as may be appropriate. We have previously indicated that Hyde Park is not properly before this court. As to Snitoff, all of said motions are herewith denied.

For all these reasons the (1) appeal by case and cross-appeal of Fayes in cause 68 CH 2441 from the circuit court of Cook County is dismissed; and (2) that portion of the judgment of the circuit court of Cook County relative to cause 69 CH 2330 is affirmed.

STAMOS and LEIGHTON, JJ., concur.

       In this opinion “Faye” refers to Martin C. Faye; “Mrs. Faye” refers to Vivian Faye; and “Fayes” refers to both Martin C. Faye and Vivian Faye.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sam Thomas, Defendant-Appellant.
    (No. 57514;
    First District (2nd Division)
    March 12, 1974.

      Robert B. Rosen, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Algis F. Baliunas, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Defendant Sam Thomas, tried by a jury on three counts of unlawful use of weapons, was found guilty and sentenced to a term of 2 to 5 years. The indictment, as originally returned by the grand jury, charged violations on September 11, 1968, in five counts, two alleging violations of the Illinois Uniform Narcotic Drug Act and three counts charging offenses of the unlawful-use-of-weapon provisions of section 24—1(a)(4) and (a)(7) of chapter 38 of the 1967 Illinois Revised Statutes. On the day the trial commenced on motion of the State, the court dismissed the two counts charging violations of the Uniform Narcotic Drug Act.

On appeal, defendant presents the following issues for review:

(1) Whether the admission of testimony regarding other illegal conduct on the part of the defendant prejudiced his right to a fair trial;
(2) Whether defendant’s right to a fair trial was prejudiced by his description in the indictment and verdict forms as having an alias;
(3) Whether the trial court properly restricted defense counsel’s cross-examination of a State’s witness; and
(4) Whether the State established the elements of the offensé charged.

The following testimony of the State witnesses describes the events, in 1968, as they chronologically developed.

Robert Walker testified that in August and September he was chief investigator for the Illinois Crime Investigating Commission (hereinafter Commission); that on August 22 he met the defendant in a tavern in Marseilles (LaSalle County), Illinois, and Thomas asked if Walker was interested in purchasing some explosives. Walker indicated he was. On August 27, Walker again saw the defendant in Marseilles when the defendant told him about a field of marijuana he had been harvesting for about 5 years and that the defendant had a connection on the south side of Chicago to retail the processed marijuana.

Walker said that on August 28, along with two federal narcotics agents, he again saw the defendant in Marseilles. On August 29, Walker testified, he telephoned the defendant at his home and talked about a contact regarding hand guns and a machine gun. Walker said that in a telephone conversation with Thomas on September 10, Thomas, in response to a question, stated he had not contacted the man that was going to fix the machine gun to make it fully automatic.

Walker next testified that on September 11 he talked with Thomas on the telephone, at which time various personnel of the federal and state narcotic bureaus were present. At this time, Walker told Thomas a friend would pick him up in Marseilles and Thomas said he had and would bring with him the machine gun and marijuana. Again, on September 11, agent Ronald Ewert (whose testimony is set forth in detail later in this opinion) telephoned him from Marseilles, at which time Thomas talked on the phone and discussed the machine gun and marijuana.

Walker further testified that later on September 11 he saw Thomas in Chicago in a motor lodge parking lot. At that time, Thomas told Walker the machine gun and marijuana were in the trunk of the automobile, whereupon Thomas removed from a white box in the trunk a machine gun and small glassine bag containing a green crushed plant. Thomas was then arrested.

On cross-examination, Walker admitted he did not know whether the subject gun (admitted in evidence as an exhibit) is capable of discharging eight or more shots by a single function of the firing device. Defendant’s efforts to ascertain the facts or circumstances of witness Walker’s termination of employment with the Commission were prevented by numerous timely State objections.

Ronald Ewert, an investigator for the Commission, testified he saw Thomas on September 11 at a tavern in Marseilles; that Ewert drove (in a State car) Thomas to his home; and that Thomas went into the house and came back carrying a large white cardboard box in his arms which was put in the trunk of the car.

After a telephone call to Ewert’s office in Chicago, they drove, in the State car, to Chicago whereupon he parked in a motor lodge parking area. At that time they greeted Walker; that Walker asked Thomas if he had the stuff; that Thomas responded he did; that the trunk of the car was opened and in a white cardboard box was a submachine gun, a said “Here’s the stuff.” At that time Thomas was arrested. clip, and a brown bag from which Thomas pulled a small plastic bag and

On cross-examination, Ewert said he did not specifically know what a semi-automatic weapon is and did not know whether the subject gun could discharge eight shots or bullets by a single function of the firing device.

On redirect, Ewert stated in August 1968 the defendant was known to him by the name of Sam Polatto.

Charles Siragusa, executive director of the Commission, testified that he was present in the parking lot of the motor lodge in Chicago on September 11 when he saw Thomas, Ewert, and Walker. After the trunk was opened, he observed a box which contained a spitfire submachine gun and a plastic bag.

Siragusa also admitted on cross-examination that he did not know whether the weapon could fire more than eight shots or bullets by a single function of the firing device. Siragusa did refer to the gun as a spitfire carbine as defined by a federal statute.

Defendant’s attempt to cross-examine Siragusa relative to witness Walker’s termination of employment with the Commission was prevented upon numerous objections by the State.

Donald Norton testified, on behalf of the State, that at the date of his testifying he was employed by the Commission, and that on September 11 he was employed by the Illinois Division of Narcotics and was assisting, on that date, agents of the Commission. His testimony, relative to September 11, was substantially the same as Walker and Siragusa, of crushed green plant. except he identified the material in the trunk of the car as a quantity

After the trial commenced, the State was allowed by the court over defendant’s objection to remove the subject gun—then an exhibit—in amine the gun. order to have the Chicago Police Department criminalistics division ex-

Thereupon, Donald E. Smith of the Chicago Police Department crime laboratory testified regarding his examination of the gun to determine its capability as being fully automatic. Smith testified that he removed a sears spring and connected a trigger spring to the sears pin, whereupon he fired 16 rounds; that he was not able to fire all the bursts until he had converted the gun; that it would take 15 to 20 minutes to convert the weapon so as to fire it automatically.

Defendant presented no evidence in his behalf.

The instructions given by the court to the jury defined the crime of unlawful use of weapons as follows:

“A person commits the crime of Unlawful Use of Weapons who knowingly:
(a) Carried a firearm concealed in a vehicle, or
(b) Possesses a weapon from which more than eight (8) shots or bullets may be discharged by a single function of firing device.”

The “issues” instruction followed the said definition and the form as set forth in IPI-Criminal no. 18.03. These instructions applied to only two of the three counts upon which defendant was tried. Two forms of verdict were given to the jury, one which read “We the jury, find the defendant Sam Thomas, also known as Sam Pilotto [the record indicates two different spellings], guilty of unlawful use of weapon"—which the jury returned—the other followed the same style except that it provided for a finding of not guilty.

The court, in sentencing the defendant, imposed the sentence, within the statutory limits, for the felony charge, violation of section 24—1 (a)(7), which was count III of the indictment.

I.

Defendant contends that, during the trial, the prosecution elicited testimony from State witnesses regarding the offenses of narcotic and firearm violations allegedly committed by the defendant, and that, since these matters were not related to the charges for which the defendant was being tried, their admission into evidence served to prejudice defendant’s right to a fair trial. As to the narcotic violation, we agree.

In the course of their testimony, witnesses Norton and Ewert each made one or two brief references to a quantity of “crushed green plant” and “the stuff.” It is true defense counsel himself on cross-examination questioned Norton regarding the “crushed green plant.” However, this was after the State was permitted to introduce the evidence.

Walker testified that on August 22 he saw the defendant in a tavern in Marseilles where defendant asked him if he would be interested in purchasing some explosives and Walker responded that he would. Walker stated that on August 27 he saw the defendant once again in Marseilles where defendant told him he had a marijuana field which he had been harvesting for 5 years, and also that he had a connection on the south side of Chicago to retail the processed marijuana. At that time defendant also inquired whether Walker wanted to assist in harvesting the marijuana. Walker then finally testified to conversations he had with defendant during the period from August 29 to September 11 when defendant was arrested. Each time the witness related the contents of his conversations with defendant, defense counsel made timely objections— and in some instances motions for mistrial—which the trial court overruled.

It is the well-established general rule that:

“[Ejvidence of commission of other crimes by an accused, in addition to that for which he is on trial, is inadmissible unless its relevancy in placing a defendant in proximity to the time and place, aiding or establishing identity, or tending to prove design, motive or knowledge is so closely connected with the main issue as to justify admission.” People v. Cage (1966), 34 Ill.2d 530, 533, 216 N.E.2d 805.

The State argues that Walker’s testimony as to the content of his conversations with defendant “established knowledge in that it showed a prior course of conduct leading up to defendant’s arrest on September 11, 1968.” Walker’s testimony regarding conversations prior to August 29 served only to show that defendant had engaged in, or was willing to engage in, criminal acts other than the one at issue. The conversations regarding the harvesting of marijuana, its potential sale, and the sale of explosives do not establish knowledge that one has possession of a machine gun. The prejudicial effect of this testimony is readily apparent, far outweighing any probative value the testimony might have had and, thus, should not have been admitted under the general exclusionary rule (People v. Cage, supra).

In support of its position, the State cites People v. Hurry (1943), 385 Ill. 486, 52 N.E.2d 173, where a police officer testified to a conversation with defendant wherein the defendant made admissions and statements implicating himself in a crime other than the one at issue. Holding that the officer’s testimony had been properly admitted, the supreme court stated:

“It is quite obvious that a witness in relating a conversation with a person accused of crime, where it contains statements relative to the one under investigation as well as other matters, cannot well repeat only a part of the conversation without making such witness the judge of what pertains to the crime under investigation. * * * Of course, if there is a separate conversation in which a different crime is admitted it should not be received a * * * (Emphasis supplied.) 385 Ill. at 492.

The case at bar is readily distinguishable from Hurry since, here, Walker’s references to other criminal acts were made as he testified to two conversations with defendant prior to and separate from the conversation dealing with the particular charge in issue. Placed in the context of the entire testimony, the State seemed to emphasize the evidence concerning the marijuana even though at the start of the trial the State moved to dismiss those charges. The impact of this testimony on the jury could only have been prejudicial and, therefore, erroneous.

II.

Ordinarily, in light of our holding above, discussion of the other points raised by the defendant might not be necessary. However, as we are remanding this case to the circuit court, further discussion might be helpful in any subsequent proceedings.

Defendant contends that his right to a fair trial was prejudiced by his being described in the indictment and verdict forms as having an alias.

A defendant may be properly charged in an indictment in his proper name as well as under an alias. (People v. Behymer (1964), 48 Ill.App.2d 218, 225, 198 N.E.2d 729.) Here, when the trial judge read the indictment to the prospective jurors and identified the defendant as Sam Thomas, otherwise called Sam Pilotto, defense counsel failed to object. Further, there was no dispute that defendant was also known under the alias. Ronald Ewert testified that in August 1968 he knew defendant by the name of Sam Polatto. This is the only reference during the course of the trial to the name Sam Pilotto. Under such circumstances, we cannot understand the real purpose of the use of the so-called alias. Upon a re-trial, we suggest this matter be considered so as to determine the need and propriety of the use of an alias.

III.

Defendant also contends that the trial court improperly restricted defense counsel’s cross-examination on matters going to the credibility and possible bias of a key State witness.

During the cross-examination of Robert Walker, the witness disclosed that he had resigned from the Commission. Defense counsel then attempted to ascertain whether Walker had resigned by request. The trial court sustained the State’s objection to this question, as well as objections to defense counsel’s inquiries regarding possible financial irregularities involving Walker and his resignation from the Commission when these questions were directed to both Walker and Charles Siragusa. By so curtailing defense counsel’s cross-examination, defendant argues that the trial court prevented him from establishing any factual basis for impeaching the credibility of the witness.

While defendant correctly maintains that defense counsel in a criminal trial should be accorded the widest latitude in his cross-examination of adverse witnesses so as to reveal any possible bias or prejudice (People v. Naujokas (1962), 25 Ill.2d 32, 37, 182 N.E.2d 700), we must be mindful of the related principle that the extent of defense counsel's inquiry rests within the sound discretion of the trial judge and only when such discretion has been clearly abused to the manifest prejudice of the defendant will a reviewing court interfere. People v. Nugara (1968), 39 Ill.2d 482, 487-88, 236 N.E.2d 693.

Defendant’s attorney made no offer of proof to adequately explain to the trial court the nature and scope of the testimony he was seeking to elicit. Of course, the questions propounded clearly suggest an attempt to establish evidence which might well go to the issue of Walker’s credibility, which is a permissible area of inquiry if proper questions are presented. Should this cause be re-tried, we would expect this matter to be so handled.

IV.

Defendant strongly urges that the State failed to establish, as to count III, the elements of the offense for which he was found guilty and sentenced. Defendant was tried on a three-count indictment charging unlawful use of a weapon and predicated upon chapter 38, section 24—1 (a)(7) (count III) and section 24—1(a)(4) (counts IV and V). The jury, by their general verdict, found him guilty of unlawful use of a weapon.

Defendant maintains that the State failed to prove—the charge in count III—that the alleged weapon was one “from which more than 8 shots or bullets may be discharged by a single function of the firing device.” To support his position, defendant points to the testimony of the State’s witnesses as set forth in detail in the first part of his opinion.

Defendant argues that, since the State’s evidence demonstrated that the weapon was capable of firing multiple bursts of shots only after its conversion by Officer Smith, the State failed to prove that the weapon allegedly possessed by defendant at the time of his arrest fit the requirements of the statute under which he was convicted. Defendant urges that, “the word may’ in the statute can be reasonably interpreted only as referring to a point of time concomitant with the alleged occurrence of the offense, and not to a point of time subsequent thereto.” Defendant further contends that “if the statute were to be construed otherwise, it would be unconstitutionally vague for want of certainty and ascertainable standards of conduct.”

The statute states that “a person commits the offense of unlawful use of weapons when he knowingly: * * * possesses or carries * * *” any weapon from which more than 8 shots or bullets may be discharged by a single function of the firing device * * Count III of the instant indictment is couched in substantially the same language. Therefore, the State must prove beyond a reasonable doubt that the defendant “knowingly possessed and carried’ such a weapon.

There is no doubt that none of the State witnesses who testified about the events of September 11, 1968, either themselves knew or presented any testimony that the defendant knew he possessed and carried such a weapon. The conversations testified to by the investigating officers (State witnesses) between themselves and the defendant, do not, in our opinion, justify any basis for an inference upon which proof beyond a reasonable doubt may be based.

We, therefore, hold that as to count III the trial court should have granted the defendant’s motion for a finding of not guilty at the close of the State’s case. Not having done so, we now reverse the finding of guilty as to that count. It is not necessary to resolve defendant’s other contentions as to this point.

V.

At the conclusion of the case, the trial court entered judgment on the general verdict of guilty. For the reasons set out above, we reverse the judgment and sentence imposed by the circuit court of Cook County as to count III (ch. 38, par. 24—1(a) (7); we reverse the judgment of guilty as to counts IV and V (each ch. 38, par. 24—1(a)(4)) and remand the matter to the circuit court of Cook County for a new trial as to counts IV and V.

Judgment reversed as to count III; judgment reversed and remanded as to counts IV and V.

HAYES, P. J., and LEIGHTON, J., concur.

       Ill. Rev. Stat. 1967, ch. 38, par. 22—3.

      The pertinent parts of chapter 38, pars. 24—1(a)(4) and (a)(7) are:
      “(a) A person commits the offense of unlawful use of weapons when he knowingly:
      (4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm; or
      (7) Sells, manufactures, purchases, possesses or carries any weapon from which more than 8 shots or bullets may be discharged by a single function of the firing device * *