author: Mr. JUSTICE BURKE

text:
    Leon Ybarra, Plaintiff-Appellant, v. Roland Cross et al., Defendants-Appellees.
    (No. 58376;
    First District (1st Division)
    August 19, 1974.

      Klohr, Braun, Lynch & Smith, of Chicago (John J. Treacy, of counsel), for appellant.
    Kirkland & Ellis, of Chicago (William D. Maddux and Gary M. Elden, of counsel), for appellee Roland Cross.
    Lord, Bissell & Brook, of Chicago (Robert B. Austin, Hugh C. Griffin, and Richard E. Mueller, of counsel), for appellee Henrotin Hospital.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Plaintiff sued Dr. Roland Cross and Henrotin Hospital for damages because of injuries allegedly sustained as a result of the defendants’ negligence. At the close of plaintiff’s case the court directed verdicts in favor of both defendants and against plaintiff. From the judgments entered thereon plaintiff appeals.

Plaintiff raises an issue as to the propriety of the trial court directing verdicts in favor of the defendants, relying upon the rule enunciated by the Illinois Supreme Court in Pedrick v. Peoria & Eastern Ry Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14, wherein the court stated:

“[VJerdicts ought to be directed * # * only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.”

In order to evaluate plaintiff’s argument, it is necessary to recount in some detail the relevant evidence adduced at the trial. Plaintiff Ybarra testified that on January 16, 1967, he became sick at work. He stated that he could not pass his urine and he went to see the company doctor who recommended he see Dr. Cross at Henrotin Hospital. Plaintiff saw Dr. Cross on the afternoon of January 16; 1967, and after the examination returned home. While plaintiff was at home, he was still “suffering little pains in the stomach.” Plaintiff testified that thereafter the pains became more severe and he was unable to urinate. He stated that on January 19, 1967, his wife and a neighbor drove him back to Henrotih Hospital. While plaintiff Ybarra was being interviewed by a receptionist at the hospital, he lost consciousness and his next memory was lying in bed in one of the hospital rooms.

Plaintiff further testified that he was informed that an immediate operation was necessary. During the operation a “hole and the tube” were inserted in plaintiff’s stomach and a tube inserted in his penis. Plaintiff stated after this first surgery, he thought he saw Dr. Cross on one occasion.

Plaintiff testified that on February 7, 1967, another operation was performed by Dr. Cross. Dr. Cross had called plaintiff’s wife and told her that it was necessary that plaintiff have the operation. Dr. Cross did not explain the nature of the second operation to plaintiff. After the second operation, plaintiff had a tube in his abdomen and another one in his penis. Plaintiff testified that he remained in the hospital for several days after the second operation.

Plaintiff testified that at the time he was discharged from the hospital he had one tube in his stomach and one in his penis with a bag strapped to his leg. He was told to see the doctor once a week and he saw Dr. Cross weekly for 4 or 5 weeks. During this period plaintiff was at home and eventually his condition became “worse.”

Plaintiff’s wife telephoned Dr. Cross on April 6 or 7 and the doctor prescribed some pills for Mr. Ybarra. Plaintiff took the pills and broke out in blisters and was subsequently advised by Dr. Cross to discontinue the medication. Plaintiff testified that Dr. Cross wanted him to return to the hospital but that he was unable to do so.

Thereafter in April, 1967, plaintiff was operated on by Dr. Edwin C. Graf at Presbyterian-St. Luke’s Hospital. Plaintiff did not know the nature of this operation and stated that he was hospitalized for several weeks following the operation. Plaintiff further testified that at the time he was discharged from Presbyterian-St. Luke’s Hospital, his condition was “pretty good” and subsequently he returned to work.

On cross-examination plaintiff testified that he felt “pretty good” a couple of days after the first operation performed by Dr. Cross at Henrotin Hospital. Mr. Ybarra further testified that a couple of days after his discharge. following the second operation performed by Dr. Cross, he felt “pretty good” and even tried to go back to work.

Dr. Roland Cross was called as an adverse witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 60.) Dr. Cross testified that he was licensed as a physician in the State of Illinois in 1942 and was Board-certified as a urologist in 1951. In 1967 he was associated with Henrotin Hospital and plaintiff came under his care for urinary retention. Dr. Cross first saw plaintiff on January 18, 1967, and according to the doctors record, Mr. Ybarra’s urine was full of blood. Dr. Cross recommended that plaintiff be hospitalized. Mr. Ybarra was to “think about it” and call back when he was to enter.

On January 19, 1967, Mr. Ybarra was admitted to Henrotin Hospital. At the time of his admission, plaintiff was in the state of acute urinary-retention and “could only dribble out urine.” There were attempts made to pass a catheter and when these proved unsuccessful, the plaintiff was taken to emergency. Dr. Cross performed a suprapubic cystotomy by means of making an incision in the lower belly and opening up the bladder from above in order to drain it.

Dr. Cross further testified that on January 20, 1967, he performed an IVP (Intravenous Pyelogram) on plaint.ff. This IVP did not shed any light on the nature of the plaintiff’s obstruction. Dr. Cross had determined that the location of plaintiff’s obstruction was mid bulb (midway between the back part of the scrotum and the anal opening) from the length of the catheters he had attempted to pass.

Dr. Cross testified that after performing the IVP, the course of treatment administered to plaintiff was to determine the degree of plaintiff’s obstruction. On January 30, 1967, a urethrogram was performed to determine the area of plaintiff’s obstruction and to see the length and severity of the obstruction in order that plans could be formulated to alleviate the obstruction. Dr. Cross described a urethrogram as being a procedure where radio-opaque material is injected into the channel of the patient’s penis and then that area is x-rayed and thereby the point of obstruction is delineated. This urethrogram showed a stricture or obstruction at mid bulb, and confirmed Dr. Cross’ tentative diagnosis of January 19, 1967.

Dr. Cross further testified that after surgery, he left an order to measure plaintiff’s urinary output and that in a case of this nature, the measurement would be made for a day or two after surgery. Dr. Cross then testified as to the specific dates and times at which urinary measurements were made.

The doctor testified that on February 7, 1967, he performed another surgical operation on plaintiff. The purpose of this operation was to cut open the urethral obstruction and place a catheter through that area so that eventually the use of the suprapubic tube could be discontinued. During this surgery, Dr. Cross was able to place a catheter through the plaintiffs normal channel of his urethra and into his bladder. The patient tolerated this surgical procedure well.

Between the first and second surgery, Dr. Cross had no record of how many times he saw plaintiff. The doctor stated that usually he was in the hospital every day and the hospital record would not necessarily reflect how often he saw Mr. Ybarra. The witness further stated that the hospital records indicated that he saw plaintiff in the hospital on January 19, 20, 23, 24 and February 1, 6, 8 and 10, 1967. In addition, the doctor recalled seeing and performing a urethrogram on him on January 30, 1967.

Dr. Cross testified that he did not employ a urethroscope to explore Mr. Ybarra’s urethral canal. The doctor testified that because of the stricture, he would not get enough value from the use of the urethroscope to make it worthwhile.

The doctor stated that plaintiff was discharged from the hospital on February 11, 1967. At that time, plaintiff was not given any particular orders by Dr. Cross other than to come back and see him. Dr. Cross stated that plaintiff remained under his care until April 7, 1967, and that he saw Mr. Ybarra on March 11, 17, 20, 25, 29 and April 3 and 7, 1967. During this period plaintiff was coming along fairly satisfactorily. Dr. Cross further testified that subsequently he had his secretary contact plaintiffs wife and was informed that Mr. Ybarra was going to another physician. Dr. Cross urged the plaintiff to follow through with the doctor because plaintiff was in need of further care. Dr. Cross testified that anybody with a stricture needs to be under a physician’s care permanently. Dr. Cross testified that he might have told Mr. Ybarra to flush out his own bladder when he went home from the hospital although the doctor had no recollection or record so indicating.

Dr. Edwin C. Graf was called as a witness by plaintiff. Dr. Graf testified that he was licensed as a physician in the state of Illinois in 1941 and Board-certified as a urologist in 1948. Dr. Graf testified he first saw the plaintiff when Mr. Ybarra was admitted to Presbyterian-St. Luke’s Hospital on April 3, 1967. At this time the plaintiff had a urinary fistula draining above his pubic bone. The next day, Dr. Graf examined plaintiff with a cystoscope and found a stricture in the tube that the urine flows through, an obstruction in the area of the prostate gland and a diverticulum in plaintiff’s bladder. Two days later, major urological surgery was performed during which the stricture was corrected and the prostate obstruction and the diverticulum of plaintiff’s bladder were removed. Dr. Graf stated plaintiff healed with average rapidity and Mr. Ybarra was discharged about 2 weeks after- the surgery.

Dr. Graf further testified that there are instances in which a patient will have a catheter both in the penis and in the suprapubic area into the bladder. He further stated that a patient needs attention to check the urine as it flows through the tube. Dr. Graf described tire irrigation or flushing procedure utilized in a case such as plaintiff’s and testified that in his opinion these procedures could be conducted by a patient at home and did not necessitate hospitalization. Dr. Graf also testified that when he ordered urinary output measurements, the drainage is usually estimated at 6- to 8-hour intervals. Dr. Graf however also testified that the intervals of measuring urine are variable as are the methods of irrigation. Dr. Graf also stated that the plaintiff would have to be treated for strictures as long as he lives.

Plaintiff was recalled as a witness and further testified that at the time he was discharged from Henrotin Hospital, he had one catheter in his penis and one in his stomach. He was not given any instructions as to how he should care for himself at home. Plaintiff further testified that after he was discharged from the hospital, he saw Dr. Cross on one occasion when the doctor gave him a syringe so that he could irrigate himself. Dr. Cross also gave the plaintiff certain written instructions regarding the use of the syringe.

Plaintiff’s wife, Julia Ybarra, was called as a witness and testified that she observed plaintiff s condition during the time he was hospitalized at Henrotin Hospital in 1967. She stated that plaintiff was not kept very clean and his bandage was “dried up” and he was “very raw between the legs.” The witness further testified that after plaintiff was home, he became very sick and had a “high fever.” Mrs. Ybarra called Dr. Cross who prescribed a drug for plaintiff to take. Plaintiff took the drug and then he broke out in blisters. Plaintiffs wife then talked to Dr. Cross who wanted the plaintiff brought back to the hospital. Julia Ybarra stated she was unable to bring the plaintiff back to the .hospital because he was running a very high fever and she had no one to help her.

Plaintiff in his complaint and in his brief says that defendant Cross was negligent in numerous respects and specifically was responsible for improper diagnosis, failure adequately to inform plaintiff of his condition and the procedures to be used in correcting it; improper choice and implementation of medical procedures; and inadequate post-operative care.

In Scardina v. Colletti, 63 Ill.App.2d 481, 488, 211 N.E.2d 762, 765-66, this court stated the general rule governing malpractice cases:

“In a malpractice action a physician will be held responsible for injuries resulting from his want of reasonable care, skill and diligence in his practice. The plaintiff must prove by affirmative evidence that the defendant was unskillful or negligent and that his leant of skill or care caused injury to the plaintiff. It is not enough to prove that he made a mistake or that his treatment harmed the plaintiff; proof of a bad result or mishap is no evidence of lack of skill or negligence.
Generally, it is necessary for a plaintiff to show by expert testimony not only that the injury occurred, but that such an event does not ordinarily occur in the normal course of events without negligence. Graham v. St. Luke’s Hospital, supra, pp 156, 157; Gault v. Sideman, 42 Ill.App.2d 96, 101, 102, 191 N.E.2d 436.” (Emphasis supplied.)

See also Dimitrijevic v. Chicago Wesley Memorial Hospital, 92 Ill.App. 2d 251, 236 N.E.2d 309.

At the trial, plaintiff utilized two expert witnesses, tire defendant Cross who was called as an adverse witness pursuant to section 60 of the Civil Practice Act and Dr. Graf. It is significant that Dr. Graf at no time criticized any of the decisions or actions of Dr. Cross. In fact, plaintiff’s attorney stated during argument in the trial court that “Doctor Graf did not testify specifically and he didn’t have to as to whether or not Doctor Cross did something wrong.” In addition, plaintiff’s attorney in his appellate brief has stated, “It is not argued here that Dr. Graf in his testimony expressly stated that the defendant doctor was negligent in his care of plaintiff.”

The evidence adduced at trial indicates that Dr. Graf and defendant Dr. Cross .utilized different methods of diagnosis and treatment regarding plaintiff. Dr. Graf acknowledged during his testimony that in medical' science there is often more than one method to accomplish the same result and that both methods'may be considered acceptable medical practices. Simply because Dr. Graf chose to utilize different procedures than those implemented by Dr. Cross does not support an inference that Dr. Cross was unskillful or negligent. Moreover, neither Dr. Graf nor defendant Cross was asked to give an expert medical opinion on any causal connection between any treatment, action, or decision of Dr. Cross and any harm or injury to Mr. Ybarra. We are of the op'nion that the trial court was correct in directing a verdict in favor of defendant Cross at the conclusion of plaintiff’s case.

As to defendant Henrotin Hospital, plaintiff in his complaint alleged that the hospital was negligent in several respects. However, at the trial and in his briefs on appeal, plaintiff has. centered on the allegation that Henrotin Hospital was negligent in that hospital personnel failed to sufficiently record plaintiff’s urinary output.

It was plaintiff’s obligation to prove that the hospital failed to comply with the standards of proper care which guide institutions holding themselves out as devoted to the care and saving of human life, and that this failure resulted in the injury or ill-being complained of. Scardina v. Colletti, 63 Ill.App.2d 481, 211 N.E.2d 762.

We are of the opinion that plaintiff did not prove that Henrotin Hospital violated the standards applicable to recording urinary measurement. Plaintiff relies heavily upon the statement of Dr. Graf that urinary drainage “is usually estimated at six to eight hour intervals.” However, as the trial judge observed, Dr. Graf also testified that the “intervals of measuring urine are variable as are the methods of irrigation.” When this evidence as a totality is viewed in its aspect most favorable to plaintiff, it does not, in our opinion, establish a standard which the hospital violated. Moreover, there is a complete absence in this record of any causal connection between the alleged negligent act of omission on the part of defendant hospital and the ultimate condition of illbeing of the plaintiff. (Wade v. Ravenswood Hospital Ass’n, 3 Ill.App.2d 102, 120 N.E.2d 345.) Therefore, we sustain the action of the trial court in directing a verdict in favor of Henrotin Hospital.

Plaintiff in his reply brief invokes the doctrine of res ipsa loquitur and contends that the alleged negligence of the defendants is “so grossly apparent that a layman would have no difficulty in appraising it.”

As this court recently stated in Slater v. Missionary Sisters Of The Sacred Heart, 20 Ill.App.3d 464, 469, 314 N.E.2d 715:

“The doctrine known as res ipsa loquitur is an exception to the general rule which governs burden of proof in medical malpractice cases. (Estell v. Barringer, 3 Ill.App.3d 455, 459, 278 N.E.2d 424.) It applies where a doctor, nurse or other hospital personnel is so grossly remiss that their conduct falls within the common knowledge of a layman, or is so contrary to acceptable and customary medical practices and standards that the injury complained of would not have occurred but for negligence in the course of such conduct. (Estell v. Barringer, 3 Ill.App.3d 455, 459, 278 N.E.2d 424; see Annot., 9 A.L.R. 3d 1315.)”

We do not believe that the conduct of the defendants in this case is within the purview of the “common knowledge” or “gross negligence” exceptions. (Comte v. O’Neil, 125 Ill.App.2d 450, 261 N.E.2d 21.) Moreover, there is no proof that either defendant acted contrary to acceptable or customary medical practice and standards; consequently the doctrine of res ipsa loquitur has no application in the instant case.

For these reasons, the judgments are affirmed.

Judgments affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Robert Greig, as Adm’r to collect for the Estate of Lois Mildred Wright, Deceased, Plaintiff-Appellee, v. Denell Johnson, Defendant-Appellant.
    (No. 59476;
    First District (1st Division)
    August 19, 1974.

      Robert H. Hirsch, of Chicago, for appellant.
    Daniel A. Costigan, of Chicago, for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the comt: •

This action arose on complaint by the plaintiff, the administrator to collect for the estate of his mother, against the defendants, Denell Johnson and Exchange National Bank of Chicago, for funds defendant Johnson received from the decedent and deposited in her own name with the defendant bank. The court without a jury found that no trust was created upon receipt of the funds, but it determined that the estate was the owner of the funds. Defendant Johnson appeals from the decree awarding the funds to the estate.

The plaintiff’s mother, Lois Mildred Wright, met defendant Johnson while Mrs. Wright was living at an apartment hotel where defendant Johnson was employed as a maid. As part of her duties defendant Johnson cleaned Mrs. Wright’s rooms; after Mrs. Wright became ill, defendant Johnson voluntarily and regularly prepared meals for her. Mrs. Wright had two bank accounts, one at defendant bank and one at another bank. The latter, about $1000, is not in issue. On November 8, 1972, defendant Johnson brought to the defendant bank a letter purportedly in Mrs. Wright’s handwriting and Mrs. Wright’s passbook for an account containing $14,000. The letter said:

“Dear Sir :
My son is traying [sic] to get my money from you from the Bank. I have saved it there for five years. This little lady is my best friend. Please put the money in her name, so I will know it is safe. I am sick at the Normandy Terrace My freinds [sic] name is Mrs. Denell Johnson Thank you for helping me
Mrs. Lois M. Wright 635 Barry Ave.”

The bank closed the account in Mrs. Wright’s name and opened a new one at defendant Johnson’s request. The new account was in defendant Johnson’s name as trustee; the beneficiary of the account was Mrs. Wright. Mrs. Wright died intestate on December 10, 1972.

The plaintiff filed his complaint against defendant Johnson and against the bank which holds the funds in the account, seeking an injunction to prevent withdrawal of the funds in the account and an accounting and payment of the funds to the estate. The complaint alleged that the funds received by defendant Johnson were the property of the estate and that no gift of the funds was made to defendant Johnson. A temporary restraining order was issued to prevent withdrawal of the funds before a hearing on the merits of the cause. In her answer defendant Johnson admitted that she withdrew the funds from Mrs. Wright’s account and deposited them in a new account in her own name. She contended that the funds were hers and raised the affirmative defense that they were a gift from Mrs. Wright.. The plaintiff filed his reply and denied that there had been a gift of the funds to defendant Johnson by Mrs. Wright.

At trial the plaintiff presented evidence which established that Mrs. Wright had an account at defendant bank and authorized defendant Johnson in writing to remove the funds in the account and that defendant Johnson removed the funds and put them in an account in her name. The plaintiff also introduced a document dated October 16, 1972, by which Mrs. Wright purportedly directed that the plaintiff be made a joint tenant on her account at defendant bank; a signature card for the joint account, signed by Mrs. Wright and the plaintiff, was also entered in evidence. The plaintiff then rested.

At the conclusion of the plaintiff’s case defendant Johnson moved for a directed finding based on the plaintiff’s failure to establish the existence of a trust as alleged in his complaint. The court denied the motion and required defendant Johnson to present her evidence. Defendant bank’s representative was then recalled to describe the circumstances under which defendant Johnson came to transfer the funds in Mrs. Wright’s account to her own. The representative conceded that the telephone numbers written on the letter from Mrs. Wright which defendant Johnson brought to the bank were in his handwriting. He agreed that he might have jotted them down at defendant Johnson’s suggestion that he call Mrs. Wright to verify her authority to take the funds. He also testified that defendant Johnson chose the form of the new account and did not indicate that Mrs. Wright had given her any directions for disposing of the money.

At the conclusion of this testimony, defendant Johnson’s attorney requested that the court call his client as the court’s witness, "under section 185 of the Probate Act. (Ill. Rev. Stat. 1973, ch. 3, par. 185.) The court agreed to do so, noting that this case, which began as an action for an injunction and accounting, had “* * * postured itself as one of determining title, rather than discovery of assets.” Defendant Johnson’s attorney did not object to this characterization of the case. The court then observed that by allowing defendant Johnson to testify as the court’s witness, the door would be opened to admitting testimony of other witnesses if relevant to any conduct or conversations between Mrs. Wright and the parties in this case. Because this would allow the plaintiff to put on additional evidence after having rested, defendant Johnsons attorney announced that he would not present his client to testify. Noting his objection for the record, he accepted the court’s invitation to conduct the examination of defendant Johnson.

Defendant Johnson testified that Mrs. Wright wished to give her the money in the account at defendant bank so that she could buy a house, that on November 8, 1972, she took to the bank the passbook given her by Mrs. Wright on November 4, 1972, and that the bank representative explained to her that if she put the money in her own name with Mrs. Wright the beneficiary, Mrs. Wright would get the money if defendant Johnson predeceased her.

Next, the plaintiff testified that he visited his mother regularly before she died and that she told him she wished him to own jointly with her the funds in defendant bank so he could pay her expenses. During one visit the plaintiff and his girl friend prepared a document for Mrs. Wright’s signature, which document directed that the plaintiff be made a joint tenant of the account at defendant bank. A signature card with the plaintiffs and Mrs. Wright’s signatures was executed later, after the prepared document was signed by Mrs. Wright. When the plaintiff tried to locate the passbook, however, he could not find it. He testified he inquired of defendant Johnson whether she knew where the book was; he said she denied knowing its location. At the time he allegedly spoke with her, the money had already been transferred to her name. The plaintiffs girl friend testified to substantially the same facts with respect to the visit to Mrs. Wright.

After the plaintiffs girl friend’s testimony, defendant Johnson’s attorney renewed his motion for a directed finding, based on the plaintiff’s failure to support the allegations of his complaint, as well as on the evidence presented (presumably that tending to show a valid gift to defendant Johnson). The court took the motion with the case. Both parties filed memoranda of law. On May 24, 1973, the court entered an order finding that the issue of an accounting became moot when the defendants were restrained from withdrawing the funds in defendant Johnson’s account and that the transfer of funds to defendant Johnson was a purported gift, the validity of which was not proved by defendant Johnson. An appropriate decree was then entered ordering payment of the deposited funds to the plaintiff.

Defendant Johnson raises the following contentions on this appeal: (1) that the plaintiff had the burden of proving the existence of a trust by clear and convincing evidence; (2) that the plaintiff did not fulfill this burden; (3) that the court erred in denying defendant Johnson’s motion for a directed finding at the end of the plaintiffs case; (4) that the court erred in directing defendant Johnson to support her affirmative defense that the bank account was a gift to her; and (5) that defendant Johnson did prove that the account was a gift.

The thrust of the first four contentions is that the proceedings should have ceased when the court determined that the plaintiffs allegation of a trust was not proved. The plaintiff responds that the court had general equity jurisdiction and could determine the ownership of the funds in question. The plaintiff somewhat overstates the extent of the court’s jurisdiction. The equitable powers of the court are limited in cases such as this one, in that a plaintiff who alleges the existence of an express trust must prove his claim before the defendant must support the affirmative defense of a gift. Strilke v. Levy, 33 Ill.App.2d 91, 178 N.E.2d 694; Smith v. Baxter, 239 Ill. App. 453.

The real issue in this appeal is different from that framed by either party. The trial judge treated the cause as a citation proceeding (Ill. Rev. Stat. 1973, ch. 3, par. 183, et seq.) after defendant Johnson’s attorney had interrogated the bank representative, at which time the court announced his intention to determine title to the funds in question. If this change in the form of the proceeding does not constitute reversible error, defendant Johnson’s first four contentions are without merit.

Defendant Johnson’s attorney did not object to the trial judge’s first characterization of the proceeding as one to determine the title of known property. Indeed, he requested the trial judge to call his client as the court’s witness under section 185 of article XV, entitled “Citation to Recover Property and Discover Information,” within the Illinois provisions for Administration of Estates. That section provides:

“§ 185. Power of Court. At the hearing the court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires. If the respondent refuses to answer proper questions put to him or refuses to obey the court’s order or judgment to deliver any personal property or, if converted, its proceeds or value, or books of account, papers, or evidences of debt or title to lands, the court may commit him to jail until he complies with the order or judgment of the court or is discharged by due course of law or the court may enforce its order or judgment by execution against the respondent’s real and personal property. The court may tax the costs of the proceeding against the respondent and enter judgment therefor against him.” (Ill. Rev. Stat. 1973, ch. 3, par. 185.)

Finally, during cross-examination of the plaintiff, the court asked defendant Johnsons attorney: “Are you objecting to my determining tide here?” The attorney answered: “No objection.”

The conduct described in the preceding paragraph clearly reveals defendant Johnsons awareness of and consent to the determination of title to the bank account under the provisions for citation proceedings. Those provisions, as indicated above, give the court the power to determine ownership of known property, regardless of whether the plaintiff has proved the allegations of his complaint. (Ill. Rev. Stat. 1973, ch. 3, par. 185.) Thus, defendant Johnsons attorneys objections to the introduction of the issue of a gift were properly overruled by the court. The determination of title in a citation proceeding may involve and here had to involve the issue of a gift. “In citation proceedings the burden of proof is generally upon the petitioner, but the burden shifts to the respondent when his possession of the decedent’s property is claimed as a gift.” (In re Estate of Vercillo, 27 Ill.App.2d 151, 158, 169 N.E.2d 364, 367.) Defendant Johnson admitted receipt of the funds from Mrs. Wright and claimed possession by gift.

The parties could not, of course, confer jurisdiction on the court simply by their conduct; the statutory requirements of pleading in citation proceedings were necessary to invoke jurisdiction. (In re Estate of Baxter, 9 Ill.App.3d. 92, 291 N.E.2d 851; Radice v. Antonacci, 87 Ill.App.2d 139, 231 N.E.2d 107.) The complaint in this case is headed “Complaint for Injunction and Accounting” but makes no mention of a citation. It alleges that defendant Johnson received property from the decedent, Mrs. Wright, and that the property was not received as a gift. The prayer for relief requests return of the property. The necessary allegations which invoke the court’s jurisdiction to order the return of the property are thus included.

Defendant Johnson was made aware of the fact that the plaintiff was claiming property she had received from the decedent. The theory of recovery, that of a trust, was also made known to the defendant. Defendant Johnson’s objections at the time of the conversion of the proceeding to a citation proceeding were based on the plaintiff's failure to prove his claim on the announced theory. If there had been no change in the form of the proceeding, these objections would have had some validity. The conversion to a citation proceeding, however, made the determination of title the paramount issue, regardless of any announced theory of recovery. As has been shown, defendant Johnson’s attorney’s conduct and statements indicated his awareness of the change in the form of the proceeding. His objections aimed at the plaintiff’s failure to do what did not have to be done in a citation proceeding are therefore immaterial to this appeal. In point of fact, the attorney initially requested that his client be called by the court to testify so that the truth would surface. The trial judge expressed this same aim and decided in favor of the estate.

The court announced at the close of the plaintiff’s case that tire original issues of tire plaintiff’s complaint had become moot, since tire temporary restraining order froze the funds and that an accounting was unnecessary in view of defendant Johnson’s admission of possession of the funds in controversy. Although this was not a correct statement in light of the plaintiff’s request for a permanent injunction, we find no reversible error in the lower court’s direction that defendant Johnson proceed to prove her claim of a gift. Reversal is not required if evidence is admitted for the wrong reason, as long as there is a reason justifying its admission. (In re Estate of La Rue, 53 Ill.App.2d 467, 203 N.E.2d 47.) Our holding that the proceeding was properly one to determine ownership of the fund justifies the admission of evidence as to a gift.

Even if we had not found a consensual change in the form of the proceeding, we would not be inclined to reverse the judgment unless defendant Johnson demonstrated that she was prejudiced by the change (Ziegler v. Smith, 86 Ill.App 2d 215, 229 N.E.2d 340), especially where the result on remand would likely be the same. (In re Estate of La Rue, 53 Ill.App.2d 467, 203 N.E.2d 47.) Defendant Johnson’s attorney conceded in open court that if we remanded this cause, he would not present additional evidence as to the gift. On that basis and the court’s giving defendant Johnson every opportunity to establish a valid gift, we find no prejudice to her. And, having found the court’s conduct of a citation proceeding proper, we conclude that defendant Johnson’s first four contentions are without merit.

The final argument raised by defendant Johnson is that her proof that a gift was given was sufficient to establish her rights in the property. The proof of a gift must be clear and convincing. (In re Estate of McVicker, 39 Ill.App.2d 389, 188 N.E.2d 731.) We will not disturb the lower court’s finding that a gift was not made unless such finding is clearly against the manifest weight of the evidence. (Chapman v. Huttenlocher, 125 Ill.App.2d 39, 259 N.E.2d 836.) The trial court heard defendant Johnson’s testimony that a gift was intended and saw the letter which authorized transfer of the funds to defendant Johnson. The letter does not of itself show that donative intent necessary to establish a valid gift. Coupled with defendant Johnson’s testimony, it was but a factor to consider. We cannot say on the record in this case that the trial court erred in finding that there was no valid gift.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Morales, Defendant-Appellant.
    (No. 59383;
    First District (3rd Division)
    September 19, 1974.
    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, Jr., and Ellis B. Levin, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie L. Byrd, Defendant-Appellant.
    (No. 59346;
    First District (2nd Division)
    September 24, 1974.
    James J. Doherty, Public Defender, of Chicago (Anthony Pinelli and Suzanne Xinos, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clemon Porter, Defendant-Appellant.
    (No. 58489;
    First District (4th Division)
    September 25, 1974.
    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. GiHis and Mariana Twist, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George H. Christo, Defendant-Appellant.
    (No. 59009;
    First District (4th Division)
    September 25, 1974.

      Rehearing denied October 24, 1974.

    James J. Doherty, Public Defender, of Chicago (Joseph Dvorak, III, and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Lorence H. Slutzky, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant George H. Christo, was charged with the offense of theft. He waived a jury trial. After a motion to suppress evidence was heard and denied, he was found guilty as charged and sentenced to serve 120 days in the House of Correction. On appeal, the defendant solely contends that the motion to suppress evidence should have been sustained.

Officer Richard Stach was the only witness at the hearing on the defendants motion to suppress. Called as a witness by defendant, he testifled that on February 12, 1973, at approximately 12:20 A.M., he and another officer observed the defendant and a girl seated in a parked automobile. The officer further stated that although he had no warrant for either an arrest or search, he searched the defendant and discovered the evidence which is sought to be suppressed.

During cross-examination by the State, Officer Stach detailed the events which led to the search. He testified that as he approached the vehicle, the defendant “stepped out of the car in a fast manner.” This drew his attention. He asked the defendant who owned the car, and the defendant responded that a friend of his did. Approximately 30 seconds after the defendant exited the vehicle, a resident of a nearby building informed the officer that the car was owned by another occupant of the building. The owner then appeared and told Officer Stach that he did not know either the defendant or his companion. Upon hearing this, Officer Stach placed the defendant under arrest and searched his person. On redirect examination he reiterated a firm recollection that the search was conducted subsequent to the arrest.

Illinois statutory law requires that “the order or judgment granting or denying the motion [to suppress evidence] shall state the findings of facts and conclusions of law upon which the order or judgment is based.” (Ill. Rev. Stat., ch. 38, par. 114 — 12(e).) In compliance with the statute, the trial judge concluded: “The search was incidental to a proper stop. Motion to suppress denied.”

The defense finds the court’s use of the words “proper stop” particularly significant. On the basis of these words, it is argued that the search was not conducted incident to an arrest, but rather merely based upon suspicion, and that the evidence produced by the search should have been suppressed. The defendant concedes that there is no question but that a certain limited intrusion may be conducted pursuant to a “proper stop,” but it is emphasized that such a search has definite and narrow parameters. The defendant cites section 108 — 1.01 of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 108 — 1.01), which provides in pertinent part:

“When a peace officer has stopped a person for temporary questioning pursuant to Section 107 — 14 of this Code and reasonably suspects that he or another is in danger of attack, he may search the person for weapons * *

It is argued that the search, therefore, must be confined in scope to an intrusion designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. (Terry v. Ohio, 392 U.S. 1, 29.) The defense stresses that the seizure of certain items from the defendant’s person was conducted during a “stop and frisk”, and that the principles of law applicable to “stop and frisk” were erroneously applied by the trial judge. We are not in accord.

The fact that the court used the words “proper stop” does not in our opinion infer that it applied “stop and frisk law.” The defendant regards the word “stop” as having a settled definition, when in fact, the contours of its connotations are ill-defined. This is not to say that the word may not and has not been used in the sense propounded by the defendant. We mean only to say that the word “stop” has not evolved to that degree of usage and crystal certainty as to indelibly label it a term of art. Its meaning is not fixed, but varies with the context in which it is used.

Placing the instant usage of the word in context with the evidence, clearly the trial court concluded that the search was conducted pursuant to an arrest based upon probable cause. The sole witness called to testify on the motion to suppress was Officer Stach. He testified that he did not arrest nor search the defendant until the defendant’s statement that the automobile was owned by a friend of his was refuted by the true owner. Although the original stopping was based on mere suspicion, the arrest and subsequent search were made only after probable cause existed. A search is a reasonable intrusion under the Fourth Amendment when incident to a proper arrest (United States v. Robinson, 414 U.S. 218; Gustafson v. Florida, 414 U.S. 260.) We conclude that since the evidence clearly establishes the legality of the arrest and subsequent search, the defendant cannot avail himself of the Court’s use of the word “stop” as a ground for reversal. People v. Wilson, 45 Ill.2d 581, 262 N.E.2d 441.

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Walls, Defendant-Appellant.
    (No. 59297;
    First District (4th Division)
    September 25, 1974.
    James T. Otis, Richard J. Prendergast, and George E. Weaver, all of Chicago (Price, Cushman, Keck, Mahin & Cate, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bartholomew Watts (Impleaded), Defendant-Appellant.
    (No. 59375;
    First District (4th Division)
    September 25, 1974.
    Paul Bradley and Lynn Sara Frackman, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Patrick T. Driscoll,^¡r., and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Respondent-Appellee, v. Oliver Smith, Petitioner-Appellant.
    (No. 59684;
    First District (4th Division)
    September 25, 1974.
    Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellant.

      Bernard Carey, States Attorney, of Chicago (Patrick T. Driscoll, Jr., and Marianne Jackson, Assistant State's Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The petitioner, Oliver Smith, was charged in the circuit court of Cook County with two counts of unlawful use of weapons and one count of armed robbery. Smith was convicted of armed robbery, after a jury trial, and sentenced to 10 to 25 years in the Illinois State Penitentiary.

The petitioner, represented by the public defender of Cook County, took a direct appeal to the Supreme Court of Illinois. (People v. Smith (1971), 47 Ill.2d 528, 267 N.E.2d 669.) The public defender raised the following issues in his brief on appeal: (1) whether the trial court’s denial of the defendant’s motion to suppress physical evidence was a violation of his constitutional rights; and (2) whether the jury instructions were legally sufficient. In addition to the public defender’s briefs, the petitioner filed two supplemental pro se briefs. He alleged that his right to a speedy trial was violated and that both trial and appellate counsel were inadequate. The supreme court affirmed the petitioner’s conviction and, when considering the issues raised in the defendant’s pro se briefs, held:

“In his first pro se supplemental brief, the defendant contends that his right to a speedy trial was violated, because he was not tried within 120 days of his arrest as required by section 103 — 5 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1967, ch. 38, par. 103 — 5.) He was arrested on May 7, 1968, indicted on July 18, and arraigned on July 31. His trial began on December 18. On September 12 the defendant filed a pro se motion for discharge under section 103 — 5, which was denied on the ground that the defendant had occasioned the delay by his motion for the appointment of a ‘Bar Association’ lawyer to represent him, in lieu of the public defender. This ruling was in our opinion correct, and neither the defendant’s statutory nor his constitutional right to a speedy trial was violated.
In the defendant’s second pro se supplemental brief he contends that both his trial and appellate counsel were inadequate. We find this contention to be without merit.” 47 Ill.2d at 530-31, 267 N.E.2d at 670-71.

The petitioner filed a pro se petition in the United States Supreme Court for a writ of certiorari, which was denied. (People v. Smith (1971), 402 U.S. 1011, 29 L.Ed.2d 434, 91 S.Ct. 2199.) Thereafter, he filed a pro se petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois, and that petition was dismissed. Finally, the petitioner filed a petition for relief under the Illinois Post Conviction Hearing Act (Ill. Rev. Stat. 1967, ch. 38, par. 122 — 1). The petition was subsequently amended by appointed counsel. At a hearing on the State’s motion to dismiss, after considering the defendant’s pro se briefs, the trial judge sustained the State’s motion to dismiss on the ground that the supreme court had already considered the issues raised.

The sole issue raised by this appeal is whether the trial court erred in dismissing the instant petition for post-conviction relief on the ground of res judicata.

Res judicata is a defense which can be raised by the state in a motion to dismiss a post-conviction petition. (People v. Bracey (1972), 8 Ill.App.3d 119, 289 N.E.2d 241; People v. Hill (1968), 39 Ill.2d 61, 233 N.E.2d 546.) The concept of res judicata includes all issues actually raised and those that could have been presented but were not. (People v. Adams (1972), 52 Ill.2d 224, 225, 287 N.E.2d 695, 696; People v. Kamsler (1968), 40 Ill.2d 532, 533, 240 N.E.2d 590, 591.) The court has consistently held that the Post Conviction Hearing Act was not intended to be used as a device to obtain further consideration of claims of denial of constitutional rights where a full review of the issues raised has been held. (People v. Hill (1968), 39 Ill.2d 61, 63, 233 N.E.2d 546, 548.) In reviewing the record, we found that the issue raised in the amended petition for post-conviction relief was presented to the Supreme Court on direct appeal, and its holding in that appeal is res judicata as to that issue. People v. Ikerd (1970), 47 Ill.2d 211, 214, 265 N.E.2d 120, 122; People v. Collins (1968), 39 Ill.2d 286, 288, 235 N.E.2d 570, 572.

Petitioner relies heavily on the decision in People v. Keagle (1967), 37 Ill.2d 96, 224 N.E.2d 834. However, we do not find that case controlling. In Keagle, the cotut considered the petitioner’s claim because it presented a constitutional problem which related to the fundamental fairness of the defendant’s second trial. The contention there was a highly technical one unrelated to guilt or innocence. The court points out that on his prior appeal, the claim was inadequately .presented by the defendant whose brief was, ostensibly at least, filed pro se. (37 Ill.2d at 101.) In the case at bar the appellant admits that the issue had been previously presented to the supreme court. He argues that the issue was presented to the supreme court by one of two ill-organized pro se briefs, and since the issue was quite complicated, it was susceptible to misinterpretation by the supreme court. In addition, he urges that the supreme court’s statement of the issue took note of none of its important ramifications. There is no factual or legal basis for the petitioner's contentions. The supreme court gave due deference to the issues raised in the petitioner’s pro se briefs and properly disposed of them. Therefore, we find the petitioner’s arguments to be without merit.

The petitioner also relies on People v. Frank (1971), 48 Ill.2d 500, 272 N.E.2d 25. He urges that Frank held that the doctrine of waiv.er and res judicata does not apply where appellate counsel failed to raise an issue which was “patently meritorious.” We agree that the issue was meritorious; however, we think that the petitioner has presented an erroneous holding for Frank. Frank held that there was no obligation of appointed counsel to brief every conceivable issue on appeal. It is not incompetence for counsel to refrain from raising those issues which in his judgment are without merit, unless his appraisal of the merits is patently wrong. People v. Frank (1971), 48 Ill.2d 500, 505, 272 N.E.2d 25, 28.

It is a well settled rule that when a conviction has been reviewed, any claim which was raised or might have been raised but was not is considered waived. (People v. Ashley (1966), 34 Ill.2d 402, 408, 216 N.E.2d 126, 129.) The strict application of this rule will only be relaxed where fundamental fairness requires it. (People v. Mamolella (1969), 42 Ill.2d 69, 72, 245 N.E.2d 485, 487; People v. Hamby (1965), 32 Ill.2d 291, 294, 205 N.E.2d 456, 458.) In the case before us, we find no reason for relaxing the invocation of the res judicata doctrine. The petitioner has been accorded due process and we find no fundamental unfairness.

We find that the issue raised in the petitioner’s post-conviction petition was res judicata, so the judgment herein dismissing said petition is affirmed.

Affirmed.

ADESICO, P. J., and BURMAN, J., concur.


author: Mr. PRESIDING JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Samuel J. Adams et al., Defendants-Appellants.
    (Nos. 56947-8 cons.;
    First District (2nd Division)
    September 27, 1974.
    Paul Bradley and Kenneth L. Jones, both of State AppeHate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

Indictment No. 71-640 charged Maurice Ferguson and Samuel Adams with the murder and armed robbery of Jimmy Gholson. After a hearing before a jury, both defendants were found guilty of armed robbery, but not guilty of murder. Both defendants received sentences of 8 to 14 years in the penitentiary.

At trial, eye-witness Eddie Caldwell testified for the State that, shortly after 12:30 A.M. on 11 October 1970, Jimmy Gholson and he were standing on a Chicago Transit Authority rapid-transit platform at the Kedzie Avenue Station on the Eisenhower Expressway. As they were standing there, they were approached by two individuals subsequently identified by Caldwell as the defendants, Maurice Ferguson and Samuel Adams. The individual identified as Adams first asked Gholson and Caldwell for some “reefers” and then announced a holdup. The individual identified as Ferguson was armed with a gun. The four individuals were standing directly under the platform lights, so that the witness was in a position to see both defendants clearly.

Gholson told Adams that Adams should get a job if he wanted money. Caldwell gave up $13 to Adams, but was permitted to keep some small change with which to pay his fare. Ferguson then began waving the gun in Caldwell’s face, whereupon Adams told Ferguson to “cool it”. Gholson first denied that he had any money, but was then threatened by Ferguson with being shot in the leg. At this point Gholson gave his wallet to Adams. Gholson then grabbed Ferguson, and the gun went off. The gun was knocked in the air and landed on the tracks. Ten or 15 minutes had elapsed between the time the robbery was first announced and the time Gholson began fighting with Ferguson.

While Gholson was struggling with Ferguson, Adams, with Caldwell in pursuit, fled along the platform, up a ramp to the station at street level, and out on to the street. Caldwell testified that he saw Adams, as Adams was running, take money from Gholson’s wallet and throw the wallet away on the platform. Caldwell caught up with Adams on the street and fought with him for a period of time, but Adams managed to escape. A police officer, who arrived too late to be of assistance to Caldwell in capturing Adams, testified to having observed Caldwell fighting with an individual having the same physical characteristics as Adams, but the officer was not able to make a positive identification.

Caldwell and the police officer then returned to the platform where they saw Gholson lying on the tracks with Ferguson standing over him. Ferguson fled down the tracks. Caldwell lifted Gholson to the platform and noticed that he was wounded in the stomach. It was from this wound that Gholson later died.

Immediately after the incident, Caldwell went to the police station and looked at books of photographs for 2 or 3 hours. He did not make an identification from any of the photographs. That same night, Caldwell was then taken to Cook County Hospital (where he was again taken about two or three weeks later) to view the people in certain wards. On each occasion, Caldwell did not recognize any of such persons as his assailants. Two days after the incident, police officers brought IS photographs to Caldwell’s home. Again, Caldwell did not recognize any of the pictured individuals as the offenders. Finally, about a month after the incident, a police officer brought nine photographs to Caldwell’s home. It was from tins group of nine photographs that Caldwell identified defendants Adams and Ferguson, but he added that he would want to view both individuals in a lineup in order to be more sure of his identification.

Adams was arrested on 24 November 1970. At the time of his arrest, he attempted to flee from the police and, when asked for his name, he gave an alias. A lineup consisting of four young male Negroes was held. Caldwell identified Adams as the assailant with whom he had fought on the night of the robbery.

Ferguson was arrested on 19 February 1971. A lineup of five young male Negroes was held. Caldwell identified Ferguson as “the guy that had the gun that did the shooting.”

At trial, both defendants interposed an alibi defense. Ferguson testified that he was with one Evelyn Fisher in a hotel room at the time of the robbery, having left the house of one Vera Boyd around midnight on the night of 10-11 October 1970. Evelyn Fisher corroborated Ferguson’s testimony. Adams testified that he was with one Coley and one Hinton in his room at the time of the robbery. Defense counsel attempted to locate Coley and Hinton for the purpose of corroboration, but was unable to do so.

in rebuttal, the State called a police officer who had interviewed Evelyn Fisher about a week prior to the trial. The officer testified that Ms. Fisher had then told him that, at the time of the robbery, both she and Ferguson were at the home of Vera Boyd. The officer had tried to contact Vera Boyd, but had been unsuccessful.

Defendants’ (hereafter appellants’) first contention on appeal is that the trial court erred in not granting appellants’ motion to suppress their in-court identification on the ground that the lineup identification procedures were unnecessarily suggestive and conducive to an irreparably mistaken identification. The thrust of appellants’ contention is that, because Caldwell had first viewed appellants’ photographs alone with the police officer and had then asked to view appellants in a lineup, his subsequent identification of appellants at the lineup was already preconditioned.

There is nothing in the record to indicate that there was anything suggestive either in the photographic identification procedure itself or in the lineup procedures themselves. On the contrary, from the record, eye-witness Caldwell appears to have been a careful and conscientious man. Over a period of several weeks he had spent hours of time in looking at photographs and in personal observation of persons in hospital wards, and had been unable to make an identification. When he finally made the photographic identification, he himself asked that he be enabled to confirm his photographic identification by a subsequent lineup identification. Under these circumstances, his request, far from disclosing any pre-conditioning, was a further indication of carefulness. We also take note of the fact that the record shows a more than adequate independent basis for his in-court identification in his opportunity for observation of appellants on the scene of the incident. See People v. Martin (1970), 47 Ill.2d 331, 265 N.E.2d 685, and People o. Lenair (1970), 130 Ill.App.2d 147, 264 N.E.2d 525.

Appellants next contend that a fatal variance exists between the proof adduced at trial and the crime charged in the indictment. The indictment charged that defendants “while armed with a dangerous weapon took an amount of United States currency (the exact amount of which is unknown * * *) from the person and presence of Jimmy Gholson, * * e.” Appellants contend that the evidence at trial did not establish that any currency had been taken from Jimmy Gholson. While, however, Gholson first denied that he had any money, he was then compelled to hand over his wallet to Adams, and Caldwell’s testimony that he saw Adams take money from Gholson’s wallet was sufficient, if believed by the jury, to establish this element of the offense and to conform the proof to the indictment.

Appellants’ third contention on appeal is that they were prejudiced by the admission into evidence of the police photographs from which they had been initially identified by Caldwell. The thrust of this contention is that the character of the photographs (Police Department “mug shots”) alerted the jury to the fact that appellants had prior criminal histories and therefore denied them the right to a fair trial.

We agree that the introduction of “mug shots” into evidence can be prejudicial as evidence of other criminal activities. (People v. Murdock (1968), 39 Ill.2d 553, 237 N.E.2d 442. See also People v. Killebrew (1973), 55 Ill.2d 337, 303 N.E.2d 377.) However, “mug shots” may nevertheless properly be admitted where they are being admitted, for the purpose of showing how defendants could have been accurately identified from them and not merely for the purpose of prejudicing the jury by showing prior unrelated encounters with the police. See People v. Maffioli (1950), 406 Ill. 315, 94 N.E.2d 191; People v. Purnell (1969), 105 Ill.App.2d 419, 245 N.E.2d 635.

In the instant case, counsel for both appellants had attacked the identification procedure as suggestive. The trial judge ruled that the jury should see for themselves whether or not there was anything suggestive in the series of photographs from which appellants had been initially identified by Caldwell. In addition, photographs of the two lineups were also admitted into evidence for the same purpose. The case at bar is similar to People v. Bleimehl (1972), 9 Ill.App.3d 273, 292 N.E.2d 60, where an entire “mug book”, which contained, inter alia, photographs of the defendants, was introduced into evidence to allow the jurors to see for themselves just how fair or unfair the photographic identification procedure had been.

We hold that, under the circumstances of the instant case and particularly in view of appellants’ challenge to the fairness of the identification procedure, the probative value of the series of photographs far outweighed any incidental prejudice to appellants. The cases of People v. Hawkins (1972), 4 Ill.App.3d 471, 281 N.E.2d 72, and People v. Hudson (1972), 7 Ill.App.3d 333, 287 N.E.2d 297, cited by appellants (both of which arose out of the same factual situation), are sufficiently distinguishable on their facts to make them inapplicable to the instant case.

Finally, appellants contend that certain comments of the prosecutor during closing argument prejudiced the jury against them. Without treating the substance of each comment complained of, it is our opinion that, even if the comments were improper, they related to matters of such little relative importance that they could not reasonably have affected the outcome of the trial. These appellants were positively identified in court by an eye-witness to the charged armed robbery who had more than ample opportunity for on-scene observation, and the identification of that eye-witness was unshaken throughout the course of the trial. Any prejudice to appellants from the alleged improper comments during final argument could have had little or no effect on the jury and their ultimate decision. See People v. Nilsson (1970), 44 Ill.2d 244, 255 N.E.2d 432.

For the foregoing reasons, the judgments of conviction are affirmed.

Judgments affirmed.

STAMOS and LEIGHTON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Bailey, Defendant-Appellant.
    (No. 57970;
    First District (2nd Division)
    September 27, 1974.
    James J. Doherty, Public Defender, of Chicago (Harold A. Cowen and Suzanne M. Xinos, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

On 25 March 1970, between 3 P.M. and 4 P.M., two men committed an armed robbery of the P. & P. Shopping Center, owned by Charles Patterson, Sr. On 27 October 1970 defendant-appellant was indicted under indictment number 70-3117 for that armed robbery (Ill. Rev. Stat. 1969, ch. 38, par, 18 — 2). At the bench trial of defendant-appellant, the two principal witnesses for the State were Charles Patterson, Jr., son of the owner of the Shopping Center, and Mattie McClain, who was working in the Center as a clerk on the day of the robbery.

Charles Patterson, Jr., testified that defendant was one of two men who had robbed the P. & P. Shopping Center on 25 March 1970 at about 3 P.M. or 4 P.M., while he and Mattie McClain were working together alone in the store. The witness identified the defendant in court as the man who had put a knife to his throat and had threatened to kill him. The witness testified further that in May of 1970, as he was putting a television set in a station wagon for delivery, a man behind him said: “Why don’t you let me have that.” The witness recognized the voice as being that of the man who had threatened to kill him, and, when he turned around, he recognized the man as the one who had put a knife to his throat; the man was the defendant. The witness also testified that he had never seen defendant before the day of the robbery.

Mattie McClain testified that, on 25 March 1970 between 3 P.M. and 4 P.M., two men robbed both her purse and the cash register of the P. & P. Shopping Center where she was then working with Charles Patterson, Jr. She identified defendant in court as one of the two men and as the one who had held a knife to the throat of Charles Patterson, Jr., and had threatened to kill him. She testified further that, some weeks after the robbery, Charles Patterson, Sr., her employer and tire owner of the Center, had asked her to make sure that a man in a certain automobile who had just been identified by Charles Patterson, Jr., as one of tire two robbers, was in fact one of the men. She did then identify the man in the automobile (who was defendant) as one of the two robbers. She testified further that she had seen defendant in the Center about three times before the day of the robbery, and that one of those times had been only a few days before the robbery.

To rebut his identification, defendant and his wife testified that, on 25 March 1970, they were at their home the entire day and had been visited at their home by defendant’s sister-in-law, who had remained until 2:30 P.M. In addition, defendant testified that he had been employed to deliver goods for the P. & P. Shopping Center intermittently on a part-time basis for 2 years prior to the date of the robbery. He alleged that he had worked altogether about 9 months for the Center. He further testified that he had met Charles Patterson, Jr., on four or five occasions prior to the date of the robbery, and that he had delivered televisions and refrigerators for the Center with Charles Patterson, Jr. He further testified that he had seen Charles Patterson, Jr., most recently 3 or 4 days prior to the date of the robbery. He also testified that he had never gotten along well with Charles Patterson, Jr., and that he had had a heated argument with Patterson, Jr., in the month of May after the robbery.

One Gilbert Allen testified on behalf of defendant that he had worked with defendant for the P. & P. Shopping Center on occasions when Charles Patterson, Sr., was short of delivery men. He testified that, on one occasion late in 1968 or early in 1969, he had been delivering a refrigerator with defendant and Charles Patterson, Jr., when defendant had had some words with Patterson, Jr.

In rebuttal of the defense testimony as to defendant’s part-time employment, Charles Patterson, Sr., testified that he had never employed defendant. Once in January of 1970, defendant had requested employment, but had not been hired. Gilbert Allen had once been offered a job, but had not accepted the offer. The witness also testified that he regularly employs six persons; that on Sundays he sometimes hires persons off the street as extra delivery personnel; and that his son, Charles Patterson, Jr., sometimes delivers goods for him. On occasion, the witness had obtained part-time help from an employment office.

On 22 April 1971, at the conclusion of the trial testimony, defendant was found guilty of armed robbery. On 4 May 1971, defendant filed a post-trial motion for a new trial in which he offered to bring in newly discovered defense witnesses who would not be either friends or relatives of defendant and who would testify that defendant had worked for the P. & P. Shopping Center prior to the robbery. The trial court denied the motion, for the reason that whether defendant had ever previously worked for the Center was not a principal issue in the case. Defendant was thereupon sentenced to from 3 to 10 years in the Illinois State Penitentiary. This appeal is from the order denying the motion for a new trial.

As his sole issue on appeal, defendant-appellant (hereafter appellant) contends that he could not reasonably have anticipated the crucial character of testimony that he had previously worked intermittently for Charles Patterson, Sr., and more specifically that he had worked with Charles Patterson, Jr., in delivering items which had been purchased at the Center; and therefore, he could not reasonably have anticipated the necessity of calling the newly discovered witnesses whom he had proffered to call in his post-trial motion for a new trial. The crucial character of their testimony was twofold: if, as they would testify, he had previously worked intermittently for Charles Patterson, Sr., in delivering heavy items purchased at the Center, then (1) his generic credibility would be enhanced to strengthen his credibility as to his alibi defense and to counter the generic credibility of Charles Patterson, Jr., and Mattie McClain; and then (2), had he actually been one of the two robbers, both Charles Patterson, Jr., and Mattie McClain would immediately have recognized him and would have identified him to the police as a former part-time employee of the Center; since neither had done so, he could not have been one of the two robbers, especially in view of his alibi defense. In addition, he suggests that Mattie McClain’s identification under the circumstances was affected by her self-interest in retaining her job with Charles Patterson, Sr.

As to the first of the dual thrusts of appellant’s proffered new testimony, we agree with the trial court’s determination that the testimony was not “central” to the issue of identification. As to the second of the dual thrusts, the obvious flaw in appellant’s contention is that he did not allege in his motion for a new trial that the newly discovered witnesses would testify that he had worked with Charles Patterson, Jr., in delivering items for the Center, or that Mattie McClain had ever seen him working for the Center. Hence, he did not allege that any of the newly discovered witnesses would testify that either Charles Patterson, Jr., or Mattie McClain would have been expected immediately to identify him as a former part-time employee of the Center. As a result, the trial court’s conclusion that the mere fact of his prior part-time employment by Charles Patterson, Sr., was not “central” to the identification issue in the instant case was correct.

Both the State and appellant agree that appellant’s motion for a new trial on the ground of newly discovered evidence is to be considered in light of the criteria set forth by the Illinois Supreme Court in People v. Baker (1959), 16 Ill.2d 364, 373-374, 158 N.E.2d 1, 6 (and recently reiterated in People ex rel. Walker v. Pate (1973), 53 Ill.2d 485, 491-492, 292 N.E.2d 387, 392):

“‘A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. [Citation.] To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. [Citations.]’ ”

Moreover, the Supreme Court in People ex rel. Walker clearly set forth that the application for a new trial on the ground of newly discovered evidence should be subjected to the closest scrutiny by the court, and that the burden is upon the applicant to rebut the presumption that the verdict is correct and also to show that there had been no lack of diligence.

Appellant has failed to meet this burden in the instant case. The new evidence which appellant purports to have discovered is not of such conclusive character that it will probably change the result on retrial. As pointed out by the trial judge, the question of whether appellant had ever been employed by Charles Patterson, Sr., is not itself of importance to the identification issue. In order even arguably to cast doubt on the State’s case as to the identification issue, the newly discovered evidence proffered would have to relate to whether appellant had worked with Charles Patterson, Jr., or had been known to Mattie McClain as an employee; appellant never alleged that he had discovered such evidence. The trial judge was willing to concede that appellant had perhaps done some part-time work for Charles Patterson, Sr., who was himself therefore mistaken in his testimony on that point. But such evidence alone would not necessarily affect the credibility of either Charles Patterson, Jr., or of Mattie McClain.

As to Charles Patterson, Jr., no newly discovered evidence was proffered which casts any doubt upon his ability to observe and identify the man who had put a knife to his throat. The only testimony affécting the credibility of the identification of appellant by Charles Patterson, Jr. (namely, the testimony of appellant that he had quarreled with Charles Patterson, Jr., after the robbery and the testimony of Gilbert Allen that appellant and Patterson, Jr., had once quarreled before the robbery) was already in evidence and had been taken into consideration by the trial judge. In any event, the positive and uncontradicted identification of appellant by Mattie McClain still stands, affected only by the suggestion of her possible self-interest, which suggestion had already been made. The conclusion is that the proffered newly discovered evidence was obviously not of such conclusive character that it would probably change the result on retrial.

It is unnecessary to consider whether the other criteria for considering newly discovered evidence were met.

For the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

LEIGHTON and DOWNING, JJ., concur.

       There is some confusion in the appellate briefs as to precisely what order it is from which defendant is appealing. The confusion arises because of a statement in defendant’s appellate brief that he is appealing from an order of the trial court denying him a continuance on his post-trial motion for a new trial. The record discloses that defendant’s notice of appeal states merely that he is appealing from the judgment of conviction. The record further discloses that, in fact, defendant was allowed one continuance on his motion for a new trial, and that, upon the elapse of that continuance, defendant’s motion for a new trial was denied after a hearing. It appears to us that the thrust of defendant’s appellate brief is that the error of which he is complaining was the denial of his post-trial motion for a new trial based on his discovery of new evidence. Hence, we accept the State’s formulation of the single issue on this appeal as accurate.

       Appellant has not contended that any such expectation as to Mattie McClain would arise from her merely having seen appellant in the Center on three prior occasions.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Norman Eaglin et al., Defendants-Appellants.
    (No. 59328;
    First District (2nd Division)
    September 27, 1974.

      James J. Doherty, Public Defender, of Chicago (Phillip A. Olson and John M. Kalnins, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Jerome Charles Randolph, and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Chambers (Impleaded), Defendant-Appellant.
    (No. 58487;
    First District (5th Division)
    September 27, 1974.
    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, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Wilson, Defendant-Appellant.
    (No. 58488;
    First District (5th Division)
    September 27, 1974.
    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, Jr., and Jerome Charles Randolph, 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. Kenneth Anderson, Defendant-Appellant.
    (No. 60022;
    First District (5th Division)
    September 27, 1974.
    James J. Doherty, Public Defender, of Chicago (William Krahl and Thomas F. Finegan, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was found guilty of the crime of attempt burglary and sentenced to a term of 2 years to 2 years and 1 day. On appeal, he asserts that the State failed to prove beyond a reasonable doubt that he intended to commit a theft.

It appears from the testimony that a neighbor of Ruth Garvey heard his dog barking and momentarily thereafter heard glass breaking. He looked out toward the Garvey house and saw defendant striking her rear door with what appeared to be a duffel bag. He watched defendant for approximately 10 or 15 seconds from a distance of about 30 or 40 feet and could see him clearly from the illumination of a light bulb directly above Garvey’s rear door. He called the police, and after they came he noticed that the glass was shattered in her outer storm door, and its aluminum frame was bent. In addition, the inner wood door was chipped and scratched, but its windows were not broken.

One of the police officers who came to the scene observed a shattered outer door and marks on the inner wood door which had not been opened. He found defendant sitting in the bushes, about 10 feet from the door, with a duffel bag in his hands. Defendant explained that it was his house and that he had broken the door because Ruth Garvey would not let him in. He was arrested and taken to the station where he repeated his statement to the police officer that he broke the door while trying to get in the house and that “he wanted to kill that bitch.”

The police officer thought the last statement was made “out of heat of anger.” At the station, the police officer saw his partner take toilet articles, shaving cream and talcum powder from defendant’s duffel bag. He saw no evidence of prying, jimmying or striations on the inner door of the Garvey house, and he was unable to state whether defendant had been drinking. However, it was stipulated that a police report prepared by another officer showed defendant “had been drinking.”

Ruth Garvey testified that at the rear of her house the outer door was aluminum with a glass panel, while the inner wood door had windows at the top and two key locks. At about 3 A.M. on the morning in question, she heard glass breaking and went to her kitchen, where she opened the shutters and looked outside. She saw defendant standing a few feet from her back door. She could not remember the police telephone number, so she called her neighbor, who told her the police were on their way. After the police arrived, she noticed the glass in the outer door was shattered and that the glass windows and the door “were all broken” in her garage. She first met defendant in December of 1969, and she stated that he lived at her house from October, 1970, until January, 1971, but that he had no personal belongings inside her house. She did not see defendant enter either her house or her garage.

OPINION

The indictment charges defendant with the offense of attempt:

“[I]n that he, with the intent to commit the offense of burglary, without authority knowingly attempted to enter into a building, to wit: dwelling house of Ruth Garvey, with the intent to commit therein a theft, 6 *

A person commits the crime of attempt when with the intent to commit a specific offense he does any act which constitutes á substantial step toward the commission of that offense. Ill. Rev. Stat. 1971, ch. 38, par. 8 — 4.

Defendant contends that the state failed to establish that his attempt to enter the Garvey house was with the intent to commit theft. The burden is on the state to submit proof beyond a reasonable doubt to support that allegation. People v. Perry, 133 Ill.App.2d 230, 272 N.E.2d 766.

The state maintains that in light of the facts and circumstances and the natural and probable inferences that arise therefrom, defendant’s intent to commit a theft has been clearly established. It refers us to People v. Johnson, 28 Ill.2d 441, 192 N.E.2d 864, where the court stated at page 443:

“Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose.”

The State argues that the record supports an inference of an intent on defendant’s part here to commit theft because of defendant’s attempted unauthorized entry into Ruth Garvey’s home, where there were articles of value. Any indication that defendant was interested in resuming his prior relationship with Ruth Garvey, the State says, is negated (a) by the fact that he had not resided with her for 21 months; and (b) by his violent conduct in attempting to enter the house.

Initially, we note our belief that Johnson is not controlling of the facts here. There, defendant broke a window to enter a tavern where there were articles of value. He brandished a lug wrench, wrapped in cloth, at the police officers before being subdued and placed under arrest. The court held there were no contradictory circumstances to rebut the inference of an intent to commit larceny.

Here, we are of the opinion that there are contradictory circumstances defeating any permissible inference that defendant intended to commit a theft. In this regard, we think it is significant that defendant (1) previously resided with Ruth Garvey; (2) used a blue canvas duffel bag containing only shaving cream, talcum powder and other toilet articles in his attempt to gain entrance to her house; (3) did not have any burglary tools in his possession; (4) gave no thought to the amount of noise he was making; and (5) apparently had been drinking. In addition, there was no indication of any jimmying or prying of the inner door. Moreover, it is unlikely that defendant could have gained entrance through the inside wood door by using his blue canvas duffel bag.

In People v. McCombs, 94 Ill.App.2d 308, 236 N.E.2d 569, the court reversed a burglary conviction, holding that the evidence established only an inference that when defendant secretly entered a home at night, he intended to resume a previously defined relationship with the daughter of the homeowner, thus raising sufficient and consistent circumstances to negate any inference that defendant had the intent to commit a felony sufficient to sustain the burglary conviction.

Similarly, in People v. Perry, supra, the court held that inconsistent circumstances and other proof negated any inference that defendant intended to commit the crime of theft when he was discovered at the door of complainant’s bedroom. There, defendant had visited the complainant late at night on other occasions, thereby raising a reasonable inference of an inconsistent motive for his presence, leaving serious doubt of an intent to commit the crime of theft. See also People v. Soznowski, 22 Ill.2d 540, 177 N.E.2d 146.

We recognize that in both Perry and McCombs, the defendant testified on his own behalf; whereas, in the instant case, defendant did not take the stand. However, from our examination of the record here, we believe the evidence clearly leaves a reasonable doubt that defendant intended to commit theft in the Garvey residence, and furthermore, we are of the opinion that it is more reasonable to infer that defendant intended to resume his previous relationship with Ruth Garvey. The fact that he was carrying a duffel bag containing toilet articles and his anger, evidenced by his statement directed at Ruth Garvey, indicates in our opinion his hopes and frustrations toward that goal.

It is axiomatic that it is the province of the trial judge hearing the case without a jury to determine the credibility of the witnesses and the weight to be given to their testimony, and his judgment will not be disturbed unless manifestly contrary to the weight of the evidence. Yet, if a review of the evidence and a consideration of the entire record leaves us with a grave and serious doubt of the guilt of the accused, it is our duty to reverse the judgment. People v. McCombs, 94 Ill.App.2d 308, 313, 236 N.E.2d 569.

Accordingly, the judgment of conviction is reversed.

Judgment reversed.

DRUCKER and LORENZ, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jose Garcia Torres, Defendant-Appellant.
    (No. 60146;
    First District (5th Division)
    September 27, 1974.
    Samuels and Weininger, of Chicago (Elliot Samuels, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Murray, a/k/a Ronald Esquer, Defendant-Appellant.
    (No. 60014;
    First District (2nd Division)
    September 10, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas Finegan, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Morris Spooner et al., Defendants-Appellants.
    (No. 59598;
    First District (4th Division)
    September 11, 1974.
    Harold S. Lee, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendants, Morris Spooner and George Galanis, were arrested on January 12, 1972, by the sheriff’s police of Cook County upon complaints charging them with knowingly, wilfully and unlawfully keeping in a place of public resort, to wit: their respective restaurants located in unincorporated areas of Cook County, Illinois, certain pinball machines, in violation of chapter 21.1, section 1 of the Ordinances and Resolutions of Cook County (now chapter 24, section 1), which prohibits same. The pinball machines and their contents of United States currency were seized by the sheriff at the time of arrest.

Prior to trial a motion was made on behalf of both defendants to quash the complaints and for a dismissal based upon the contention that the Cook County ordinance which the defendants allegedly violated was unconstitutional for various reasons. The motion stated:

“(a) That the Cook County ordinance alleged to have been violated by the defendants violates the Fourteenth Amendment of the Constitution of the U.S. in that it violates the equal protection clause of the Fourteenth Amendment.
(b) That the Cook County Ordinance Chap. 21.1 Sec. 1 is in conflict with Chapter 38 Sec. 28 — 2(1) [of the Illinois Revised Statutes 1971],
(c) That the Cook County Ordinance Chap. 21.1 Sec. 1 Ordinances and Resolutions of the County of Cook, State of Ill. is discriminatory and violates the Due Process provisions of the U.S. Constitution and State of IU. Constitution.”

The motion was denied. The record further shows that on July 18, 1973, the cause was heard without a jury and, after hearing testimony and the arguments of counsel, the court found both defendants guilty as charged. Each was fined $20 and assessed $5 in costs.

On appeal the defendants’ sole argument is premised on the claim that section 25.22 of “An Act to revise the law in relation to counties” (Ill. Rev. Stat. 1961, ch. 34, par. 429.4), as amended is in contravention of the 1870 Illinois Constitution. Section 25.22 empowers county boards “[t]o license, tax, regulate, or prohibit pinball games or machines” and similar devices. The defendants argue that this statute contravenes article IV, section 13, of the 1870 Constitution of the State of Illinois, which prohibited any legislative enactment from embracing more than one subject and required that one subject to be expressed in the title, and therefore that Cook County Ordinances and Resolutions, chapter 21.1, section 1, enacted under the authority of section 25.22, is invalid and the convictions should be reversed.

Since the defendants have not included the report of proceedings in their record on appeal we are confined to the common-law record submitted, and it may not be supplemented or expanded by statements, arguments or contentions dehors the record. (People v. Rogers, 26 Ill.2d 599, 188 N.E.2d 22; People v. Brown, 3 Ill.2d 623, 122 N.E.2d 153.) It is apparent from our review of this record, including the motion to quash the complaints set out above, that neither the issue of the constitutionality of section 25.22 of the above-mentioned Act (Ill. Rev. Stat. 1961, ch. 34, par. 429.4), nor of the Cook County Ordinance as it turns upon that statute, were raised in the trial court. It is firmly established that for sound policy reasons, theories of defense not raised in the trial court cannot be raised for the first time on appeal (People v. Brown, 11 Ill.App.3d 67, 296 N.E.2d 77), and this principle of waiver encompasses constitutional questions (People v. Black, 52 Ill.2d 544, 288 N.E.2d 376). In People v. Amerman, 50 Ill.2d 196, 197, 279 N.E.2d 353, 354, the Illinois Supreme Court reiterated:

“Tt.is fundamental that the question of the constitutionality of a statute cannot be properly raised for the first time in a court of review, but must have been presented to the trial court and ruled upon by it, and the person challenging its validity must have preserved proper exceptions to such ruling. [Citations.]’.”

We acknowledge the additional questions raised by the State in support of its position on the merits, including whether the 1870 Illinois Constitution even applies to the statute attacked, and if not, whether the new 1970 Constitution would in any way affect its validity. But we need not proceed to a determination of those issues. We hold that the defendants’ argument that section 22.25 of the Act (Ill. Rev. Stat. 1961, ch. 34, par. 429.4), as amended, is unconstitutional has been waived, since it is presented for the first time in this appeal. We therefore affirm the conviction and fines.

Affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Esau Brandy, (Impleaded), Defendant-Appellant.
    (No. 59705;
    First District (4th Division)
    September 11, 1974.

      James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Jerome Charles Randolph, and William P. Prendergast, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

At a bench trial, Esau Brandy was found guilty of burglary, (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1), and sentenced to the Illinois State Penitentiary for a period of not less than 3 years but not more than 9 years. The sole issue presented for review is whether the defendant was proved guilty beyond a reasonable doubt.

Louis Wemer, secretary-treasurer of the Wemer Printing Company, located at 323 West Randolph, Chicago, and the site where the burglary occurred, was the first witness to testify. Wemer stated that he was in his office on the second floor with a secretary, on Febmary 17, 1973, and to his knowledge no one else was in the building. At approximately 1:30 P.M. Wemer heard some strange noises on the third floor, so he got his keys and went upstairs to investigate. The third floor of Wemer Printing Company is used as a warehouse to store typewriters and other miscellaneous items. When he arrived on the third floor, he discovered that the door leading to the warehouse was unlocked. Werner opened the door and saw shadows of two people running between boxes stored on that floor. Werner feared for his safety so he immediately went down to the second floor and called the police.

Officer William Egan, a Chicago policeman, testified that on Febmary 17, 1973, at approximately 1:30 P.M., he and his partner, Edward Clancey, received a burglary in progress call at 323 West Randolph, and arrived at that address 3 minútes after they received the call. As the officers approached Werner Printing Company, they were waived into the alley by Mr. Werner. Officer Egan stated that he and his partner were sitting in the rear of the building waiting for a response from the cars in front, when a male security guard, in the course of a conversation, gave the officers a description of the defendants. The guard told the officers that he saw two male Negroes exiting from the rear of the building and saw them run down the alley to Franklin Street, and they walked south to Washington Street where they boarded an eastbound C.T.A. bus. The security guard also said that the offenders were carrying a box with contents, and stated that they were both well dressed. Although the police inquired, the security guard refused to give his name.

After concluding the conversation, Officers Egan and Clancey proceeded on Washington Street and notified the communications center to stop all C.T.A. vehicles traveling eastbound on Washington. Three C.T.A. vehicles were stopped, and the officers alighted from their car and immediately moved to the last C.T.A. bus, the one on which the defendants were riding. Defendant Brandy got off the bus and was arrested by Officer Clancey, and Officer Egan arrested the other defendant. Then Officer Egan boarded the bus and observed in the front of the bus, where the two defendants were standing prior to Brandy’s leaving the bus, a brown box containing an I.B.M. electric typewriter and an AM-FM portable radio.

Shortly after the defendants’ arrest was effectuated, Mr. Werner was taken to the police station. He identified the stolen items which were recovered by the officers as the property of Werner Printing Company.

The defendant contends that he was never identified as being one of the persons who entered or left the site of the alleged burglary. Furthermore, he argues that the prosecution’s case was based wholly upon a vague description of two male well-dressed Negroes given to the police by an unidentified informant. In support of this proposition the defendant cites People v. Cullotta (1965), 32 Ill.2d 502, 207 N.E.2d 444, and People v. Bryan (1963), 27 Ill.2d 191, 188 N.E.2d 692.

In Illinois the rule is well settled that the recent, exclusive and unexplained possession of the proceeds of a burglary in itself gives rise to an inference of guilt which may be sufficient to sustain a conviction unless there are other facts and circumstances which leave in the mind of the jury, or the trial court if a jury is waived, a reasonable doubt of guilt. (People v. Franceschini (1960), 20 Ill.2d 126, 130, 169 N.E.2d 244, 246-47; People v. Robinson (1968), 98 Ill.App.2d 285, 288, 240 N.E.2d 397, 398.) The defendants’ contention that he was not identified is erroneous. The security guard said one of the men who left Werner Printing Company and boarded the eastbound Washington bus was wearing a yellow outfit. The police officer who arrested the defendant and identified him at trial testified that he was wearing a yellow outfit when he was arrested on the Washington bus. Furthermore, Brandy had in his possession the proceeds of the burglary. There were no facts or circumstances to leave doubt in the mind of the trial judge. Therefore, we feel that the evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt.

The cases cited by the defendant (People v. Cullotta (1965), 32 Ill.2d 502, 207 N.E.2d 444, and People v. Bryan (1963), 27 Ill.2d 191, 188 N.E.2d 692), are distinguishable from the instant case. In Cullotta and Bryan the proof connecting the defendant to the crimes was unreliable identification testimony. In the case under review the defendant was apprehended shortly after the burglary, with its fruits in his recent, exclusive and unexplained possession.

The defendant next contends that no evidence was introduced to show that he had the specific .intent to commit theft. However, we find this contention to be without merit. The question of intent with which an act is done is a question of fact. It is difficult of precise or direct proof and need not be established thereby, but it may be implied or inferred from the circumstances connected with tire act. (People v. Masterson (1967), 79 Ill.App.2d 117, 127, 223 N.E.2d 252, 257; People v. Gooch (1966), 70 Ill.App.2d 124, 130, 217 N.E.2d 523, 526.) The fact that a larceny was actually committed in this ease is evidence that the breaking and entering was accomplished with an intent to commit that offense. People v. Umphers (1971), 133 Ill.App.2d 853, 856, 272 N.E.2d 278, 280; People v. McMullen (1948), 400 Ill. 253, 255, 79 N.E.2d 470, 471.

Finally, the defendant contends that ownership of the typewriter and radio was not proved by competent evidence. We disagree with this contention since this court found a similar method of identification to be sufficient proof of ownership in a larceny case. (People v. Faulkner (1969), 113 Ill.App.2d 175, 177, 251 N.E.2d 770, 771; People v. Sellers (1964), 30 Ill.2d 221, 224, 196 N.E.2d 481, 483.) In Faulkner the defendant was seen running from the store with merchandise in his possession, and the officer who arrested him saw him drop some objects. Three radios were found at his feet. The arresting officer identified the radios introduced into evidence as the objects Faulkner tried to hide. A proprietor of the burglarized store identified the radios and said they were stolen from the store. The Faulkner fact situation is analogous to the case under review. A policeman identified the items found on the defendant when he was arrested, and an officer of the burglarized company identified tire typewriter and radio and testified that the stolen property belonged to Wemer Printing Company. Therefore, we feel that the identification testimony of the company’s officer was competent evidence of ownership.

For the foregoing reasons, we affirm the decision of the trial court.

Affirmed.

DIERINGER and BURMAN, JJ., concur.